Ofulue and another v Bossert

Land – Possession – Limitation of action – Appellants seeking possession of property occupied by respondent – Respondent previously claiming to have tenancy – Whether respondent establishing requisite intention for adverse possession – Whether respondent acknowledging appellants’ title to stop time running for adverse possession – Appeal dismissedIn 1976, the appellants became the registered owners of a UK property. They subsequently went to live in Nigeria. In 1981, a former tenant let the respondent and her father (B) into the property. The property was in a state of disrepair and, in June 1981, a closing order was made. B looked after the property, carried out repairs and paid the rates, but did not pay any rent. In 1983, the appellants became aware that the respondent and B occupied the property, but it was not until 1987 that they began proceedings for possession. B counterclaimed on the basis that he had undertaken extensive work on the property, having been offered a 14-year lease in return for completion of the work. In 1991 and 1992, B made without prejudice offers to purchase the freehold of the property, which were rejected.In 1996, B died and the appellants failed to pursue their action for possession which was automatically stayed in 2000 under the Civil Procedure Rules. In August 2000, they served a notice to quit on the respondent and applied unsuccessfully to lift the stay on their possession proceedings. In 2001, the appellants returned to the UK and asked the respondent vacate the property. She refused and they issued a further notice to quit, followed by proceedings seeking possession of the property. In her defence, the respondent contended that ownership of the property had passed to her by way of adverse possession. The county court held that the respondent had acquired the property by adverse possession so that the appellants’ title had been extinguished. The appellants appealed, contending, inter alia, that: (i) the respondent did not have the necessary intention for adverse possession since she and B had claimed that they had a tenancy of the property in their defence to the earlier proceedings; and (ii) although the respondent had occupied the property for some 25 years, the communications in connection with the earlier proceedings constituted an acknowledgement of the appellants’ title for purposes of section 29 of the Limitation Act 1980, which stopped time running beyond the commencement of the current proceedings in 2003. Held: The appeal was dismissed.(1) It was necessary to show only that the person who claimed to have acquired property by adverse possession was in possession without the consent of the paper owner and intended to possess. A person who wrongly believed that he was a tenant could occupy property in such a way that he had possession, just as much as a squatter. He did not have to show that he had an intention to exclude the paper owner: JA Pye (Oxford) Ltd v United Kingdom 44302/02 [2007] RVR 302 applied. (2) The service of the defence and counterclaim did not prevent the running of time in the respondent’s favour for the purposes of the 1980 Act. There was no reason in principle why a statement in the pleading could not constitute an acknowledgement for the purposes of section 29. Starting proceedings stopped time running for the purpose of those proceedings, but not, without more, for other proceedings. In the instant case, the inception of the first set of proceedings would have stopped time running so long as those proceedings were on foot, but not thereafter. That rule applied where proceedings were permanently stayed, as in this case: Markfield Investments Ltd v Evans [2001] 1 WLR 1321 and BP Properties v Buckler [1987] 2 EGLR 168; (1987) 284 EG 375 applied. For the appellants to succeed, the respondent had to have had acknowledged that they had the better right to possession and this had not been acknowledged. By claiming to be entitled to a lease of the property, the respondent had admitted that the appellants were the rightful owners, but had not accepted that they were entitled to immediate possession. There had been no acknowledgement or admission that the respondent was not in possession or that time was not running in her favour for the purpose of the 1980 Act.: Surrendra Overseas Ltd v Sri Lanka (The Apj Akash) [1977] 1 WLR 565 and Re Flynn (deceased) (No 2) [1969] 2 Ch 403 considered.Richard Wilson QC and Christopher Jacobs (instructed by Hodge Jones Allen) appeared for the appellants; Peter Crampin QC and Simon Williams (instructed by Ronal Fletcher Baker) appeared for the respondent.Eileen O’Grady, barrister