Plaintiff inheriting property occupied by defendant – Plaintiff promising not to collect rent – Defendant making statutory declaration that entitled to freehold – Defendant conveying property to nephew – Nephew re-conveying to defendant – Plaintiff seeking declaration of ownership and that defendant in occupation as licensee – Judge finding plaintiff’s title extinguished by operation of Limitation Act 1980 – Appeal allowed
By a conveyance in 1930 the property, Lawrence Villa, Orsett, was conveyed to Thomas Smith who was the father of the plaintiff and the brother of the defendant. The defendant lived at the property from 1913 – 1989. From the death of her father in 1952 until the death of Thomas Smith on January 13 1978 the defendant paid to Thomas Smith the sum of 10 shillings per week. In his will Thomas Smith left the property to his widow, the plaintiff’s mother, who conveyed it to the plaintiff in June 1978. After the death of Thomas Smith, the defendant paid no sums at all to anyone by way of rent, the plaintiff having told her at a meeting on January 14 1978 that he would collect no more rent. Although she left the property in1989, the defendant remained in occupation in the sense that her furniture was still there. In April1990 the defendant signed a statutory declaration to show that she had become the freehold owner of the land and on the same date sold it to another nephew, who was registered with possessory title at the Land Registry. The nephew died but before his death he re-transferred the land to the defendant.
In 1993 the plaintiff sought declarations against the defendant, his aunt, that he was the freehold owner of the property and that she occupied the property as a licensee. At trial the judge found that at a meeting on January 1 1978 the plaintiff told the defendant that he would not collect any more rent and that thereafter the defendant did not pay rent, and that therefore the defendant continued in occupation as a weekly tenant and her previous tenancy was not terminated. He decided that therefore the plaintiff’s right of action accrued in January 1978 and by January 1990 his title had been extinguished by operation of the Limitation Act 1980. The plaintiff appealed.
Held The appeal was allowed.
1. The plaintiff ‘s title to the property had not been extinguished because time could not and did not start to run pursuant to the provisions of the Limitation Act 1980.
2. The statement by the plaintiff that he would not collect any more rent was a promise upon which the defendant had acted. The court was entitled to, and did, infer that the non-payment was due to the defendant acting upon the plaintiff’s representation: see Central London Property Trust v High Trees House [1947] KB 130.
3. Under Schedule 1 para 8 to the 1980 Act the right of action accrued when the occupier could establish adverse possession. However the defendant was not in adverse possession because the plaintiff had promised not to collect rent and would therefore have been estopped from recovering the property for non-payment. The Limitation Act period did not run when the person entitled to occupy the property had no right of entry: see Warren v Murray [1894] 2 QB 648.
John Holt (instructed by Jackaman Smith & Mulley, of Felixstowe) appeared for the appellant;
Richard Roberts (instructed by Saunders & Co, of Rainham) appeared for the respondent.
