Council property listed for “rehabilitation” – Defendant occupying with others under terms of “licensed squat” – Council terminating licence and taking summary proceedings for possession – Defendant asserting licence as obstacle to summary proceedings – Council discontinuing possession action – Defendant occupying rent-free for further 14 years – Defendant claiming possessory title – Council seeking possession – Whether occupation permissive – Whether occcupation falling short of adverse possession – Judgment for council
The claimant council owned an eight-room, semi-detached house in London SW2 that was earmarked for eventual “rehabilitation”. From 1978 until the events in dispute, the council allowed various occupiers to use the house under an arrangement, described as a “licensed squat”, that excluded any repairing obligation on the part of the council. In 1984, at which time the council had no rehabilitation plans, the defendant (R) moved into the house at the invitation of the then occupiers (the 1984 occupiers), who were taking steps to get the council to carry out certain repairs. During the following year, the 1984 occupiers moved out and others took their place.
In November 1985 the council decided to gain vacant possession in order to carry out work on the house. They served a notice purporting to terminate the licence with effect from January 1986. In February 1986 the council brought summary proceedings for possession on the ground that unidentified trespassers were in occupation. By a letter of May 1986 (the 1986 letter), solicitors instructed by R wrote to the registrar of Wandsworth County Court, submitting that summary proceedings were not appropriate as there was “a licence to occupy the property granted by [the council], or at the very least a triable issue in respect of that matter”. The registrar gave directions for a full trial, but the council, having studied a copy of the 1986 letter and noted the departure of the 1984 occupiers, dropped their plans for repairing the house and discontinued the action.
At some time during the following 14 years, the house was entered on the council’s computerised records as being a “shortlife” property that had been let on licence or lease. Over the same period, R occupied the house rent-free, doing certain maintenance work and refusing access to gas engineers calling on the council’s behalf. In 1997 the council pruned a tree in the back yard, this occurring in R’s absence.
In 1998 R applied to the Land Registry to be registered as owner. After corresponding with R’s solicitors, the council served a notice to quit. In February 2000 the council brought a High Court action for possession. In response to R’s claim to have acquired good title under section 15 of the Limitation Act 1980, the council contended that at all material times: (i) R had occupied the house as a licensee of the council; (ii) alternatively, his alleged possession had not been “adverse” within the meaning of para 8 of Schedule 1 to the 1980 Act.
Held: The council’s contentions were accepted.
1. The 1986 letter could only be construed as a clear assertion by R that there was a licence from the council in respect of the house. In the light of the council’s reaction to that letter, both R and those occupying with him must have believed that they were entitled to remain under a licence and that the council had accepted that fact. Moreover, with the departure of the 1984 occupiers, and with them any pressing need to repair, there was every reason (as indicated by the computerised record) why the council would have wished the licensed squat to continue. It was not necessary for the owner, in order to prevent time running against him, to point to an overt acceptance by the occupier of the terms of the licence in circumstances where, as in the present case, it had been shown that: (a) the paper owner had done some overt act allowing for the inference that permission had been given; and (b) a reasonable person would have appreciated that the user was permissive: R v Sunderland City Council, ex parte Beresford [2000] EGCS 134 and BP Properties Ltd v Buckler [1987] 2 EGLR 168.
2. R’s occupation did not amount to adverse possession. It was plain from the authorities (see Powell v McFarlane (1979) 38 P&CR 452) that R had to provide clear and affirmative evidence that he had the requisite intention to possess, and also that he had made such intention clear to the whole world. R had failed to discharge that burden. Having stated through his solicitors that he was entitled to occupy as licensee, R presumably intended to assert such rights as that licence could legally convey. His rights as a licensee (as distinct from a tenant) did not include a right to exclusive possession. His acts of occupation were accordingly “equivocal” in the sense employed by Slade J in Powell. Nor did R derive any assistance from Lodge v Wakefield Metropolitan City Council [1995] 2 EGLR 124, which concerned the special provision made for certain oral periodic tenancies.
3. R’s case was further weakened by the fact that the 1986 letter was also written on behalf of two other persons in occupation at the time, meaning that any possession had to be joint possession. It was to be inferred from that letter that the other occupiers also believed that they occupied under a licence from the council: JA Pye (Oxford) Ltd v Graham [2000] 2 EGLR 137 considered.
Christopher Baker (instructed by Steele & Co, as agent for the solicitor to Lambeth London Borough Council) appeared for the claimants; Stephen Knafler (instructed by Jockelson McNulty & Co) appeared for the defendant.
Alan Cooklin, barrister
