Adverse possession – Consent of landowner – Respondent council acquiring residential properties by compulsory purchase – Squatters then taking up occupation – Occupation regularised by scheme for grant of temporary rights of occupation in prescribed form by housing co-operative of which occupants to be members – Appellant not signing prescribed form – Whether appellant acquiring title by adverse possession – Adverse possession held to be precluded by respondents’ consent to occupation – Whether such consent existing in absence of agreement in prescribed form – Appeal dismissed
The appellant was the occupant of a residential property in Clapham, London SW4, which was one of several houses in the same road that the respondent council had acquired by compulsory purchase in December 1971, at a time when they were in a poor condition, with a view to demolition as part of a redevelopment of the area. The redevelopment did not happen immediately and, by the mid-to-late 1970s, squatters had moved into some of the properties.
Rather than evicting the squatters, the respondents negotiated a scheme under which, in 1981, they granted a licence to a housing association, which in turn entered into an agreement with a housing co-operative to provide temporary accommodation for squatters who became members of that co-operative. That agreement provided for the grant of rights of occupation in a prescribed form. The scheme enabled the housing association to obtain small grants under the Housing Act 1974 to restore the houses to a habitable condition. The appellant moved into one of the properties in the early 1980s when he was given the keys by the then occupants; they moved out in 1984, whereupon the appellant became the sole occupant. Thereafter, he became actively involved in the running of the co-operative.
The appellant and others later claimed to have acquired title by adverse possession to the properties that they occupied. In the court below, those claims were dismissed on the ground that the appellant and his co-claimants occupied with the express or implied permission of the respondents. The judge found that the regularisation of their occupation of the property was a necessary part of the respondents’ scheme and that they had paid rent until 2000.
The appellant appealed. He relied on occupation for a period of 12 years prior to a right-to-buy application that he had made in November 1993, but had later discontinued. He submitted that, although the respondents had given an implied permission to occupy for the duration of the negotiations for their scheme, any occupation after the implementation of the scheme in 1981 had to accord with the terms of the relevant agreements; he contended that his occupation was adverse since he had never signed an occupation agreement in the prescribed form.
Held: The appeal was dismissed.
The possession of the appellant and his predecessors in occupation of the property was not adverse since, at all material times, they had been in possession with the consent of the respondents. Possession with the consent of the owner was not adverse possession. The relevant consent could be either express or implied. In the latter case, it was not sufficient simply to show that the occupation was not inconsistent with the owner’s present or future enjoyment of the land; however, consent did not have to be contractually binding. To imply a consent there needed to be some overt act by the landowner, or some demonstrable circumstance, from which the consent could be implied. It had to be established that a reasonable person would have appreciated that the occupation was with the permission of the owner.
Where a person in possession of land was negotiating with the owner for the grant of some interest in that land, it might be a natural inference from the circumstances that the owner permitted the occupier to be on the land pending the result of the negotiations: Colin Dawson Windows Ltd v King’s Lynn and West Norfolk Borough Council [2005] EWCA Civ 9; [2005] 2 P&CR 19; [2005] PLSCS 6 applied. The judge had properly found that, during the negotiations for the implementation of the scheme, those in occupation of the properties had been there with the consent of the respondents. He had also been entitled to find as a fact that the occupiers continued to occupy the premises thereafter with the express permission of the respondents. The occupiers could not avoid the conclusion that their occupation was permissive by relying on the specific terms of the 1981 agreement. It was wrong to assume that, once the scheme came into being, the mechanism provided by the 1981 agreement was the only way that the respondents could express their consent to the occupation of the properties. The licence to the housing association invested it with the right to grant permission on behalf of the respondents but did not exclude the respondents’ right to communicate their own permission to the occupiers. The judge had been entitled to find that the respondents were giving their consent to the scheme in a much more general sense, by consenting to and encouraging the continued occupation by the current occupiers when the scheme came into effect. It was that permission and consent that both the housing association and the co-operative had authority to convey to the occupiers, which they had plainly done. Once the scheme came into effect, there could have been no doubt in the minds of any current occupier of the property that their continued occupation was with the respondents’ consent.
When the negotiations for the scheme reached a successful conclusion, so as to allow the continued use of the properties and make available the grant funding, the existing occupiers were entitled to assume that their temporary right to occupy granted during those negotiations was going to continue until they received notice to the contrary. The inclusion of a term in the 1981 agreement between the housing association and the co-operative that permission to occupy was to be given in a specified form could not constitute such notice.
The judge had therefore been entitled to find that the occupation of the property, once the scheme was implemented, was with the consent of the respondents. That state of affairs had continued until at least 1984 when the appellant’s predecessors gave up possession. That was sufficient to answer his claim to have been in adverse possession for 12 years.
Simon Williams (instructed by direct access) appeared for the appellant; Terence Gallivan (instructed by Devonshires Solicitors) appeared for the respondents.
Sally Dobson, barrister