Adverse possession — Non-payment of rent — Tenant wrongly believing he was paying rent — Whether tenant’s possession was adverse pursuant to the Limitation Act 1980, Schedule 1, para 8(1)
In 1969 the
plaintiff was granted an oral tenancy by the defendant council’s predecessor in
title of some 11.9 acres of land. In February 1970 the predecessor in title
consented to the quarterly rent being paid half-yearly. The plaintiff has paid
no rent since the last payment of rent was made in January 1974. In proceedings
by the plaintiff for a declaration that he had acquired title to the land by
adverse possession,
in evidence that until 1981, and perhaps later, when it came to his attention
that he was not paying rent, he believed he was in the position of tenant to
the landlord. The plaintiff appealed.
he ceased paying rent was adverse for the purpose of the Limitation Act 1980,
Schedule 1, para 8(1). The law requires a requisite intention to possess the animus
possidendi; it does not require an intention to become the owner of the
land. The plaintiff had the necessary animus possidendi notwithstanding
that he had held a tenancy.
The following
cases are referred to in this report.
Buckinghamshire
County Council v Moran [1990] Ch 623; [1989]
3 WLR 152; [1989] 2 All ER 225, CA
Hayward v Chaloner [1968] 1 QB 107; [1967] 3 WLR 1068; [1967] 3 All
ER 122; [1967] EGD 498; (1967) 203 EG 599, CA
Jessamine
Investment Co v Schwartz [1978] QB 264;
[1977] 2 WLR 145; [1976] 3 All ER 521; (1976) 33 P&CR 346; [1977] 1 EGLR
46; 241 EG 383, CA
Moses v Lovegrove [1952] 2 QB 533; [1952] 1 All ER 1279; [1952] 1
TLR 1324, CA
Powell v McFarlane (1977) 38 P&CR 452
Smirk v Lyndale Developments Ltd [1975] Ch 317; [1975] 2 WLR 495;
[1975] 1 All ER 690; (1974) 29 P&CR 407; [1975] 2 EGLR 43; 235 EG 751, CA
This was an
appeal by the plaintiff, Mr Lodge (trading as J D Lodge), against the decision
of Judge Barr-Young in Pontefract County Court dismissing his claim for a
declaration in proceedings against the defendants, Wakefield Metropolitan City
Council.
Godfrey Jarand
(instructed by Frank Allen Pennington, of Doncaster) appeared for the
plaintiff; Philip Lancaster (instructed by the solicitor to Wakefield
Metropolitan City Council) represented the defendants.
Giving
judgment, BALCOMBE LJ said: This is an appeal by the plaintiff from an
order made by Judge Barr-Young in Pontefract County Court on May 11 1993
whereby he dismissed the plaintiff’s claim for a declaration that the
defendants’ title to 11.9 acres of land near the former Whitwood Sewage Works,
Achton, Castleford, West Yorkshire, had been extinguished.
The plaintiff
became a tenant of this piece of land from the defendants’ predecessor in title
in 1969. There was no written tenancy. The rent payable was £15 0s 9d per
quarter. On February 6 1970 the defendants’ predecessor consented to the
quarterly rent being paid half-yearly. The last payment of rent was made in
January 1974 for the two succeeding quarters. However, in the course of
evidence before the judge the plaintiff was asked when it came to his attention
that he was not paying rent for this particular land and he thought it was the
late 1980s. The judgment contains a quotation apparently of the plaintiff’s
oral evidence:
If asked if I
was tenant in 1981 my answer would have been ‘Yes’
The judge
continues:
He clearly
then believed that in 1981 and perhaps later, as it was not until the late
1980s that it came to his attention that he was not paying rent, he believed
that he was in the position of tenant to the landlord.
The question
on this appeal is whether, as the judge held, this belief precluded the
plaintiff from obtaining a title by adverse possession to the piece of land. He
made his claim for a declaration to that effect in 1992.
The relevant
law is now contained in the Limitation Act 1980. Section 15(1) of that Act
provides:
No action
shall be brought by any person to recover any land after the expiration of
twelve years from the date on which the right of action accrued to him …
I need not
read anymore. Section 15(6) provides:
Part I of
Schedule 1 to this Act contains provisions for determining the date of accrual
of rights of action to recover land in the cases there mentioned.
Section 17
provides:
… at the expiration of the period prescribed by
this Act for any person to bring an action to recover land … the title of that person to the land shall be
extinguished
subject to
certain exceptions which are not here material.
Then Schedule
1, para 5 is headed Accrual of right of action in case of future interests
and reads:
Subject to
sub-paragraph (2) below, a tenancy from year to year or other period, without a
lease in writing, shall for the purposes of this Act be treated as being
determined at the expiration of the first year or other period; and accordingly
the right of action of the person entitled to the land subject to the tenancy
shall be treated as having accrued at the date on which in accordance with this
sub-paragraph the tenancy is determined.
(2) Where any
rent has subsequently been received in respect of the tenancy, the right of
action shall be treated as having accrued on the date of the last receipt of
rent.
Under the
subheading Right of action not to accrue or continue unless there is adverse
possession, para 8(1) reads:
No right of
action to recover land shall be treated as accruing unless the land is in the
possession of some person in whose favour the period of limitation can run
(referred to below in this paragraph as ‘adverse possession’); and where under
the preceding provisions of this Schedule any such right of action is treated as
accruing on a certain date and no person is in adverse possession on that date,
the right of action shall not be treated as accruing unless and until adverse
possession is taken of the land.
The short
point taken by the judge, and sought to be maintained before us by counsel for
the respondent/defendants, is that because the plaintiff believed up until
1981, or even later, that he was still paying rent to the defendants as his
landlords, his possession was therefore not adverse within the meaning of para
8(1) of Schedule 1 to the 1980 Act.
There is no
doubt that the plaintiff has been in factual possession of this land since
1969. The question is whether he had, at the relevant time, the requisite
intention to possess, the animus possidendi. That is what the law
requires — it does not require an intention to become the owner of the land. In
Powell v McFarlane (1977) 38 P&CR 452 Slade J, in a case
which concerned the acquisition of title under the Limitation Act by a
squatter, defined animus possidendi at p471:
The animus
possidendi, which is also necessary to constitute possession, was defined
by Lindley MR, in Littledale v Liverpool College (a case
involving an alleged adverse possession) as ‘the intention of excluding the
owner as well as other people’. This concept is to some extent an artificial
one, because in the ordinary case the squatter on property such as agricultural
land will realise that, at least until he acquires a statutory title by long
possession and thus can invoke the processes of the law to exclude the owner
with the paper title, he will not for practical purposes be in a position to
exclude him. What is really meant, in my judgment, is that the animus
possidendi involves the intention, in one’s own name and on one’s own
behalf, to exclude the world at large, including the owner with the paper title
if he be not himself the possessor, so far as is reasonably practicable and so
far as the processes of the law will allow.
A tenant in
possession is, of course, during the subsistence of the tenancy, entitled to
exclude from the land the world at large, including the landlord.
In Buckinghamshire
County Council v Moran [1990] Ch 623, Slade LJ, after referring to Powell
v McFarlane, said at p643:
I agree with
the judge that ‘what is required for this purpose is not an intention to own or
even an intention to acquire ownership but an intention to possess’ — that is
to say, an intention for the time being to possess the land to the exclusion of
all other persons, including the owner with the paper title. No authorities
cited to us establish the contrary proposition.
So merely on
the application of basic first principles it seems to me that the plaintiff
here had the necessary animus possidendi.
This is
consistent with the reported decisions on the acquisition of title under the
Limitation Acts by an ex-tenant against his erstwhile landlord to which we were
referred. Thus in Moses v Lovegrove [1952] 2 QB 533 a similar
point had been taken in the court below by the landlord, but this was expressly
abandoned in the Court of Appeal. Sir Raymond Evershed MR said at p536:
it was argued
in the court below that since the defendant was admittedly the tenant of the
plaintiff up to the time when he ceased to pay rent, therefore all his
subsequent occupation, albeit without any payment of rent or other
acknowledgment, was referable to his having been a tenant of the plaintiff, so
that at no stage was he ever in adverse possession of the premises. That point
was expressly abandoned by Mr Heathcote-Williams in this court, and I do not
therefore spend further time upon it, for it is now conceded by him that from
the expiration of one week after May 28, 1938 (that is, after the last payment
of rent) until the impact on these premises of the new Rent Act of 1939, there
was adverse possession on the part of the tenant within the meaning of the
Limitation Act, 1939.
But the
argument is that, when on September 1, 1939, the premises again were brought
within the scope of the Rent Restriction legislation, then by reason of the
terms and the effect of that legislation, the adverse possession of the
defendant ceased, and ceased for this reason, that thenceforward, by virtue of
the Acts, the plaintiff had no right, as of course, to recover possession
against the defendant, the tenant.
Romer LJ in
the same case said at p543:
The tenancy
was quite obviously an oral weekly tenancy, with the result that time started
to run by virtue of section 9 of the Limitation Act 1939, from one week after
the last payment of rent, which was on May 28, 1938.
I pause there
to interpolate that section 9(2) of the Limitation Act 1939 is equivalent to
para 5(1) of Schedule 1 to the Limitation Act 1980.
The judgment
of Romer LJ continues:
As no notice
to quit was given, the tenant could not thereafter be said to be in immediate
adverse possession in the ordinary sense, for he remained on under his
contractual tenancy. Nevertheless, for the purposes of the Limitation Act,
1939, his tenancy ceased to exist, and therefore he is deemed to have remained
on in adverse possession. Accordingly, the fact that for some purposes his
contractual right remained in the absence of a notice to quit a writ for
possession is irrelevant, as also is the precise date on which the lessor could
properly have started proceedings in ejectment. The point is that after the
expiration of one week from the date of the last payment of rent, the defendant
is deemed to have had no contractual right to possession, and therefore to have
been a trespasser or a squatter.
Why should he
be regarded as being in possession by virtue of permission or grant of the
owner merely because of the passing of the Rent Act of 1939?
He goes on to
consider that point and later at p544 says:
It seems to
me that one can, in addition to looking at the position and rights of the
owner, legitimately look also at the position of the occupier for the purpose
of seeing whether his occupation is adverse. In my opinion, if one looks to the
position of the occupier and finds that his occupation, his right to
occupation, is derived from the owner in the form of permission or agreement or
grant, it is not adverse, but if it is not so derived, then it is adverse, even
if the owner is, by legislation, prevented from bringing ejectment proceedings.
In Moses
v Lovegrove it was not suggested by a very strong court that the
concession made by Mr Heathcote-Williams had been wrongly made and Romer LJ’s
judgment, which I have quoted, does not depend upon the concession.
Hayward v Chaloner [1968] 1 QB 107 is another strong case. The facts
there suggested that the tenant (the rector of a parish) knew that rent was
payable. Lord Denning MR said at p117 of the judgment:
Only one of
the previous rectors gave evidence. He was the Rev Richard Phillips …
— he gave the
dates —
He knew the
rectory cottages and said that the land behind the cottages was used by the
occupants, including the land in dispute. He added that the land was sadly
neglected when an old couple lived there. He never paid any rent for it. Mr and
Mrs Hayward
— they were
the owners of the land —
… were prominent supporters of the church. He
said that he would not expect them to ask him for the 10s per annum rent.
In that same
case Russell LJ said at p122 of the report:
Nor do I
doubt the applicability of section 9(2) to the present case
— I repeat
that is the equivalent of para 5(1) of Schedule 1 of the 1980 Act —
just because
the freeholders were content that the rector should not pay his rent and did
not bother to ask for it for all those years. In Moses v Lovegrove,
in this court it was assumed on all hands that when section 9 apparently
operates, adverse possession starts: see especially Lord Evershed, and Romer
LJ. The principle clearly accepted was that once the period covered by the last
payment of rent expired, the tenant ceased to be regarded by the Limitation
Acts as the tenant. This case was not cited to the county court judge. A
similar assumption was made in Nicholson v England, under the
then existing principles which section 10(1) was designed to embody. Textbooks
to the same effect include Cheshire’s Modern Law of Real property, 9th
ed (1962), pp 797, 798: Megarry & Wade’s Textbook of the Law of Real
Property, 3rd ed (1966), p 1010: and Preston & Newsom on Limitation
of Actions, 3rd ed (1953), p89. I am not aware that the contrary view has
been anywhere expressed …
Jessamine
Investment Co v Schwartz [1978] QB 264, also
in the Court of Appeal, was the case where the tenants Mr and Mrs Levy did not
know their landlord Mrs David’s address and had no means of paying the rent. As
Sir John Pennycuick said in giving the leading judgment:
… indeed they were worried at their inability
to do so. There is no suggestion that they withheld rent for any other reason.
Nevertheless,
it was held they had acquired the title by adverse possession against their mesne
landlord (Mrs David), but that nevertheless their statutory tenancy had
continued against the freeholder.
Stephenson LJ
put the matter thus at p276, and in order to understand references in his
judgment it is necessary to know Mr Levy had died and his widow Mrs Levy had
become Mrs Schwartz:
Decisions of
this court prevent us from deciding that Mrs Schwartz was not, from the receipt
of the last payment of rent by Mrs David, ‘a person in whose favour the period
of limitation can run,’ and so not ‘in adverse possession’ within section 10
(1) of the Act of 1939: Hayward v Chaloner … and Moses v Lovegrove …
Mr Philip
Lancaster, for the respondents, bravely sought to distinguish these cases on
the grounds that in none of them was it held that the tenant believed himself
still to be paying rent. In my judgment, it is clear from the passages that I
have read from those judgments, that even if there had been such a belief it
would have had no relevance.
Mr Lancaster
also referred us to Smirk v Lyndale Developments Ltd [1975] Ch
317*. I do not derive any assistance from that case.
*Editor’s note:
Also reported at [1975] 2 EGLR 43.
In my
judgment, the plaintiff has established his possessory title to this piece of
land. I would allow the appeal and grant a declaration that the title of the
defendants to the land has been extinguished.
PILL LJ and SIR ROGER PARKER agreed and did not add anything.
Appeal
allowed.
