The putative owner of the paper title wrote to the defendant who occupied the relevant property in October 1974 as follows: ‘Since we wish to help you as much as possible we are prepared to allow you to remain in occupation of the house and garden rent free for as long as you may wish and for the rest of your life if you so desire. I am pleased accordingly to confirm that we will not require you to give up possession during your lifetime or until such time as you may choose no longer to live in the house and we have given the necessary instructions so that no proceedings will be commenced until you personally no longer live there.’
There was a pending warrant for possession against the defendant. Her solicitors produced the letter written to her from the paper title owner to the County Court judge who stayed the warrant as a result. They sought her instructions on the letter but before obtaining a response the then paper owner withdrew the warrant. The defendant never did respond to the letter by accepting or rejecting it. She remained in possession until her death some nine years later. The paper title owner contended subsequently that no claim for adverse possession could arise after October 1974 because by then the defendant was occupying the land pursuant to a licence and so her possession was not adverse. The licence was unilateral in the sense that it was not one to which she had expressly assented, but it was contended that this would make no difference.
Held: Where a person claimed to have obtained a title by adverse possesssion, it did not matter if the person in possession did not know that his or her possession was lawful; the lawful title would still preclude the person with the paper title from evicting the person in possession.
Dillon LJ said: ‘The claim that a unilateral licence can stop time running is a new one. It may be of some general importance in that it would enable a person who is not prepared to incur the cost of bringing proceedings for possession or of enforcing a possession order to keep his title alive for very many years until it suits him to evict. It might be thought that for title to be kept alive in this way was contrary to the policy of the statute as exemplified by section 13 of the 1939 Act which reproduced earlier statutory provision to the same effect and prevented any right of action to recover land being preserved by formal entry or continual claim . . It may be that the result would have been different if Mrs Buckler had, assuming she had learnt of the letters, plainly told BP Properties Limited that she did not accept the letters and maintained her claims to be already the owner of the property. She, however, did not do that. She accepted her solicitor’s advice that, as the warrant for possession had been withdrawn, she should do nothing while the 12-year period from the date of possession order expired . . Whether BP Properties could or could not in law in the absence of consideration have sought to determine in her lifetime the licence, they did not in fact seek to do so. Had they sought to do so they would in the absence of any repudiation of the letters by Mrs Buckler have had to have given Mrs Buckler a reasonable time to quit, as with any licensee. The nature of Mrs Buckler’s possession after receipt of the letters cannot be decided just by looking at what was locked up in her own mind. It must depend even more on this aspect of the case, on the position as seen from the standpoint of the person with the paper title. What could that person have done? The rule that possession is not adverse if it can be referred to a lawful title applies even if the person in possession did not know of the lawful title. The lawful title would still preclude the person with the paper title from evicting the person in possession.
So far as Mrs Buckler was concerned, even though she did not ‘accept’ the terms of the letter, BP Properties Limited would in the absence of any repudiation by her of the two letters have been bound to treat her as in possession as licensee on the terms of the letters. They could not have evicted her (if they could have done so at all) without determining the licence. I can see no escape therefore from the conclusion that, whether she liked it or not, from the time of her receipt of the letters Mrs Buckler was in possession of the farmhouse and garden by the licence of BP Properties Limited.’
Judges:
Dillon LJ, Mustill LJ, Sir Edward Eveleigh
Citations:
[1987] EWCA Civ 2, (1988) 55 PCandR 337
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Ofulue and Another v Bossert CA 29-Jan-2008
The claimants appealed an order finding that the defendant had acquired their land by adverse possession. They said that the defendant had asserted in defence to possession proceedings that they were tenants, and that this contradicted an intent to . .
Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river 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, Limitation
Updated: 07 July 2022; Ref: scu.245288
