References: [1963] AC 510, [1962] UKHL 1, [1962] 2 WLR 1020, [1962] 2 All ER 288
Links: Bailii
Coram: Lord Radcliffe, Lord Denning
Ratio: To defeat a defence of adverse possession, the plaintiff must succeed in an action which itself had been commenced within the twelve year period. A squatter does not succeed to the title that he has disturbed: by sufficiently long adverse possession he obtains a title of his own, but ‘his possession only defeats the rights of those to whom it has been adverse’. Therefore, said Lord Radcliffe: ‘the effect of the ‘extinguishment’ sections of the Limitation Acts is not to destroy the lessee’s estate as between himself and the lessor; and that it would be incorrect to say that if he offers a surrender to the lessor he has nothing to surrender to him in respect of the land in the possession of the squatter. What the lessee surrendered in this case was the incumbrance on the fee simple in possession which was represented by the term of years . . Now if the landlord then goes to the lessee and gets him to surrender the outstanding term, which incumbers his fee simple in possession, then the squatter’s defence against the landlord disappears and, since he has not completed adverse possession against the landlord, he must give way to the rightful owner’s claim to the land.’
Lord Denning said: ‘the title of the leaseholder is extinguished as against the squatter, but remains good as against the freeholder.’ and ‘The only reason, it seems to me, which can be urged against this conclusion is that it means that a squatter’s title can be destroyed by the leaseholder and freeholder putting their heads together. It is said that they can by a surrender – or by a surrender and regrant – destroy the squatter’s title completely and get rid of him. So be it. There is no way of preventing it.’
Statutes: Land Registration Act 1925 75(1)
Jurisdiction: England and Wales
This case cites:
- Wrongly decided – Walter v Yalden QBD ([1902] 2 KB 304)
The surrender of a lease by a lessee whose right and title to possession had been extinguished by effluxion of time gave the leaseholder no right of re-entry during the remainder of the term. . .
(This list may be incomplete)
This case is cited by:
- Distinguished – Chung Ping Kwan and others v Lam Island Development Company Limited PC (Times 16-Jul-96, Bailii, [1996] UKPC 23)
(Hong Kong) Various provisions had been made for the termination of long leases in Hong Kong. Land had come to be occupied by adverse possession. At first instance the judge had given judgment against the squatters, but then retracted after a later . . - Cited – Markfield Investments Ltd v Evans CA (Bailii, [2000] EWCA Civ 281, [2001] 1 WLR 1321)
The claimants were paper owners of land occupied by the defendant. The claimant said the acquiescence had been interrupted by an abortive court action by the claimant’s predecessor in title.
Held: With regard to any particular action the . . - Cited – Roberts v Swangrove Estates Ltd and Another ChD (Bailii, [2007] EWHC 513 (Ch), [2008] 2 WLR 1111, [2007] 2 PandCR 17)
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 – Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA (Bailii, [2010] EWCA Civ 200, [2010] NPC 31, [2010] 11 EG 121, [2010] 3 All ER 113, [2010] 21 EG 92, [2010] 3 WLR 1223, [2011] 1 QB 413)
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
(This list may be incomplete)
Last Update: 06 April 2019
Ref: 191153