A claim to title by adverse possession was made by a purchaser of a flat owned by the defendants who had been let into possession pending completion of the intended sale, which completion never in fact occurred.
Held: Chadwick LJ said: ‘In this case the terms of the licence have to be implied. What terms should the court imply? In particular, should the court … imply a term that the licence will determine automatically as soon as there is no real prospect of the transaction proceeding to completion, whether or not both parties appreciate that. Or is it necessary to imply a term that the licence continue, until and unless one party does something to communicate to the other that the transaction is no longer to proceed to completion?’ . . And: ‘I accept that the term to be implied is that the licence will determine when it is no longer required; that is to say, when the parties are no longer proceeding towards completion of the transaction in relation to which the licence to occupy has been given. But such a term will be unworkable in practice unless (and so must itself require that) the intention not to proceed is communicated.
I would not hold that the intention not to proceed needs to be communicated in express terms (although that will be the usual case). In the usual case either the proposed vendor or the proposed purchaser (or their respective agents) will write to the other in terms which make it clear that the party is no longer proceeding towards an exchange of contracts, or towards completion of the transaction without an exchange of contracts. But there may be sufficient indication from what one is doing, to the knowledge of the other, that a court will hold that a reasonable person, with that knowledge, would appreciate that the transaction is not going to proceed.
What is essential, in my view, is that there should be some mutual communication from which the objective observer could deduce that each would appreciate that the transaction is no longer proceeding. That element is missing in this case.’
Judges:
Auld, Chadwick, Mummery LJJ
Citations:
[2003] EWCA Civ 531
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Totton and Eling Town Council v Caunter and Another ChD 11-Jun-2008
The council appealed against an award by the adjudicator of title by adverse possession in favour of the respondents.
Held: The appeal succeeded. On any sensible analysis from the Council’s perspective, the Caunters were entitled to remain in . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 07 June 2022; Ref: scu.181156