Mitchell v Watkinson and another

Tenancy – Implied grant – Limitation Act 1980 – Landowner granting tenancy of land for use as cricket club – Claimant seeking possession – Whether claimant’s title being barred by limitation – Whether defendants entitled to rely on doctrine of adverse possession – Claim dismissed For many years, members of the claimant’s family had owned the freehold of land in Cheltenham. In 1947, three members of a cricket club were granted a tenancy of part of that land for use as a cricket club. The tenancy agreement stated that the tenancy would commence on 25 March 1947 and continue from year to year. The last of those three members died in 1974 and the last payment of rent was made in October 1974. A dispute subsequently arose in respect of the ownership of part of the land. It was common ground that there had been a tenancy at all material times from year to year. However, the defendants, who were members of, and appeared on behalf of, the cricket club contended that the claimant’s title to the land was barred by the Limitation Act 1980 Act. They argued that the facts came within the statutory words “without a lease in writing” so that paragraph 5 of schedule 1 to the 1980 Act applied and the tenancy was to be treated as determined at the expiration of the first year with the claimant’s right of action accruing at the date on which the tenancy was determined. The claimant contended that there was “a lease in writing” so that paragraph 5 did not apply. Moreover, the defendants were not entitled to rely on paragraph 5 because the tenancy, which had been in existence on and after 8 October 1974, had been a business tenancy with security of tenure under Part II of the Landlord and Tenant Act 1954. It was agreed that the last receipt of rent for the purposes of paragraph 5(2) was on 8 October 1974 so that, if paragraph 5 did apply, the right of action for possession would be treated as having accrued on that date, subject to paragraph 8 of schedule 1 which provided that a right of action would not to accrue or continue unless there had been adverse possession. The claimant contended that a right of action for possession did not accrue on 8 October 1974 or at any time thereafter because there had been no one in possession for the purposes of paragraph 8. Therefore a further issue arose whether the tenant under the 1947 tenancy had been in possession for long enough to give effect to the doctrine of adverse possession. Held: The claim was dismissed. (1) The effect of the payment of rent and its acceptance by the claimant’s predecessor from 1947 onwards produced the result that, by implication from conduct, a tenancy had been granted, the terms of which were set out in the agreement of 10 June 1947. The tenancy had been impliedly granted by reason of the payment and acceptance of rent. However, a written document, whatever its terms and however clearly referable to the existence of a lease and comprehensive it might be in setting out the terms of the lease, was not a lease in writing for the purposes of paragraph 5(1) of schedule 1 to the 1980 Act unless at law the document itself operated to pass an interest, operated as a lease or created an estate. The fact that the terms of the tenancy had been the same as those set out in the written agreement and, to that extent, the written agreement evidenced the terms of the tenancy, did not suffice to make the written agreement the relevant lease in writing. It followed that the defendants had succeeded in showing that this case was within paragraph 5: Long v Tower Hamlets London Borough Council [1997] 05 EG 157; [1997] 1 EGLR 78 applied. (2) For the purposes of paragraph 5, the tenancy was treated as being determined at the expiration of the first period of the tenancy and the landlord’s right of action for possession was treated as having accrued at that date or, if later, the date of the last receipt of rent. Because the statute treated those things as having happened, it was nothing to the point that they had not actually happened. Thus, time ran under the 1980 Act against a landlord who had not given notice to quit to determine the tenancy and who was not entitled to possession. In those circumstances, it was irrelevant whether the tenancy which the landlord had taken no step to determine, could be determined at common law or had to be determined in accordance with Part II of the 1954 Act: Moses v Lovegrove [1952] 2 QB 533, Onyx (UK) Ltd v Beard [1996] EGCS 55 and Perry v New Islington and Hackney Housing Association (14 January 2004, unreported) considered. (3) For the purposes of paragraph 8 of schedule 1, in order for the right of action to accrue and for time to start to run, the relevant land had to be “in the possession of some person in whose favour the period of limitation can run”, i.e. adverse possession. That phrase was not directed to the nature of the possession enjoyed but to the capacity of the squatter. Thus if the person in possession was there as the licensee of the owner of the paper title, time did not run; similarly if the person in possession was the tenant of the land. The law would readily ascribe possession to the person who was legally entitled to possession, as a tenant was. The slightest acts done by or on behalf of an owner in possession would be found to negative discontinuance of possession, which would also apply to a tenant entitled to be in possession. However, in a case within paragraph 5 of schedule 1, the tenancy which actually existed was treated as having determined and so time could run in favour of the person who was actually a tenant: Powell v McFarlane (1977) 38 P&CR 452, Williams v James [2002] 3 EGLR 69 and JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 considered. (4) On the evidence in the present case, the tenant had been in adverse possession for the purposes of paragraphs 5 and 8 of schedule 1 to the 1980 Act for 12 years from 8 October 1974. Nothing had happened during that time which amounted to a cessation of possession. Accordingly, from 8 October 1986, the claimant’s title to the relevant land had been extinguished: Doe d Davy v Oxenham (1840) 7 M&W 131, Re Jolly [1900] 2 Ch 616, Nicholson v England [1926] 2 KB 93 and Barratt v Richardson [1930] 1 KB 636 considered. David Taylor and Timothy Harry (instructed by Keystone Law) appeared for the claimant; David Mitchell (instructed by Knights LLP, of Cheltenham) appeared for the defendants. Eileen O’Grady, barrister