COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
His Honour Judge Cox
Strand, London, WC2A 2LL
Thursday 14th June 2001
B e f o r e :
LORD JUSTICE CLARKE
LORD JUSTICE LAWS
| THE MAYOR AND BURGESSES OF THE
LONDON BOROUGH OF LAMBETH
|- and -
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
for the Claimant/Respondent)
Mr Keith Rowley QC and Ms Nicole Sandells (instructed by Thomas & Co for the Defendant/Appellant)
Crown Copyright ©
LORD JUSTICE CLARKE:
Background and Issues
"(1) No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some other person through whom he claims, to that person.
(6) Part 1 of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases they mention."
"1 Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.
8(1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as "adverse possession");
(2) Where a right of action to recover land has accrued and after its accrual, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be treated as having accrued and no fresh right of action shall be treated as accruing unless and until the land is again taken into adverse possession."
(b) Section 75 of the Land Registration Act 1925;
at the expiration of the period prescribed by this Act for any person to bring an action to recover land the title of that person to the land shall be extinguished."
By Section 75 of the Land Registration Act 1925, the registered proprietor's title is not extinguished by adverse possession but is deemed to be held on trust by him for the trespasser. The trespasser must then apply to be registered as proprietor of the estate.
"(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of land, as being the person with the prima facie title to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.
(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ("animus possidendi")."
I shall consider them in turn.
"(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so."
Intention to Possess
"(4) The animus possidendi, which is also necessary to constitute possession, was defined by Lindley MR in Littledale v Liverpool College  1 Ch 19, 23 (a case involving an alleged adverse possession) as "the intention of excluding the owner as well as other people". This concept is to some extent an artificial one, because in the ordinary case the squatter on property such as agricultural land will realise that, at least until he acquires a statutory title by long possession and thus can invoke the processes of the law to exclude the owner with the paper title, he will not for practical purposes be able to exclude him. What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not the possessor, so far as is reasonably practicable and so far as the processes of the law will allow."
"The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with a right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position is, however, quite different from a case where the question is whether a trespasser had acquired possession. In such a case the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having the requisite animus possidendi and consequently as not having dispossessed the owner."
"In view of the drastic results of change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intentions sufficiently clear so that the owner, if present at the land, would clearly appreciate that the claimant is not merely a persistent trespasser, but is actually seeking to dispossess him."
The distinction between an adverse possessor and a persistent trespasser is important here because Mr Arden submits that the appellant was no more than a persistent trespasser. I shall return to this distinction below.
"Though past or present declarations as to his intentions, made by a person claiming that he had possession of the land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute. For the same reasons, even contemporary declarations made by a person that he was intending to assert a claim to the land are of little evidential value for the purpose of supporting a claim that he had possession of the land at the relevant date unless they were specifically brought to the attention of the true owner. As Sachs LJ said in Tecbuild Ltd v Chamberlain (1969) 20 P & CR 633 at 643 "In general intent has to be inferred from the acts themselves.""
"The true nature of this particular strip of land is that it is enclosed. It cannot be denied that the person who now says he owns it could not get to it in any ordinary way. I do not deny that he could have crept through the hedge, or, if it had been a brick wall, that he could have climbed over the wall; but that was not the ordinary and usual mode of access. That is the exclusion the dispossession which seems to me to be so important in this case."
"If the defendant had stopped short of placing a new lock and chain on the gate, I might perhaps have felt able to accept these submissions. Mr Douglas submitted that this act did not unequivocally show an intention to exclude the council as well as other people. (It is well established that it is no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner: see for example Tecbuild per Sachs LJ.) In my judgment, however, the placing of the new lock and chain did amount to a final unequivocal demonstration of the defendant's intention to possess the land. I agree with the judge in his saying (1988) 86 LGR 472, 479:
" I do not think that if the council, on making an inspection, had found the gate newly padlocked, they could have come to any conclusion other than that [the defendant] was intending to exclude everyone, including themselves, from the land.""
"Nevertheless, I agree with the judge that "what is required for this purpose is not an intention to own or even an intention to require ownership but an intention to possess" that is to say, an intention for the time being to possess the land to the exclusion of all other persons, including the owner of the paper title. No authorities were cited to us to establish the contrary proposition. The conversation and the letter of 18 December 1975, to my mind demonstrate the intention of the defendant for the time being to continue in possession of the plot unless and until the proposed by-pass is built."
(1) someone who actively "seeks to dispossess" (see Powell at p 480) but who in default of being able to stay on as a trespasser admits that he may be willing to pay to do so (see Ocean Estates Ltd v Norman Pinder  2 AC 19 per Lord Diplock at p 24); and
(2) someone who passively occupies the property and would like to go on doing so (regardless of the basis on which he does so, ie whether as a trespasser or as a licensee or a tenant) but who does not have an intention of doing so contrary to the will of the owner and who thus may intend to occupy but not adversely to possess (see Moran per Nourse LJ at p 645 and R v Secretary of State for the Environment ex p Davies (1990) 61 P & CR 487 per Neill LJ at p 496).
"Evidence that the squatter was willing to pay rent to the paper title owner during the relevant period or to take a paper tenancy from him, may be relevant to ascertainment of the squatter's intention to possess the land; but the squatter's statements to that effect do not necessarily constitute admissions by him that he lacked the requisite intention to possess: see Ocean at p 24 and Lodge v Wakefield Metropolitan City Council  2 EGLR 124 at 126; cf Davies at p 496."
"Their Lordships do not consider that an admission of this kind, which any candid squatter hoping in due course to acquire a possessory title would be almost bound to make, indicates an absence of the animus possidendi necessary to constitute adverse possession."
See also Lodge, which is to similar effect.
"But it is really the correspondence from which I think inferences are to be drawn. It seems to me, having read and re-read it, that in the present case the appellant has failed to show the requisite animus possidendi. I do not consider that if the owner had been present and had seen the correspondence he or she would have appreciated that the appellant was actually seeking to dispossess the owner and was not merely a persistent trespasser."
It is thus clear that all turned on the correspondence between the parties. It is, however, to be observed that Neill LJ asked the same question as was identified by Slade J in Powell at p 480, namely whether if the owner had been present he would have appreciated that the claimant was not acting merely as a persistent trespasser but was "actually seeking to dispossess him".
"He said that when he moved in he did not regard the premises as anything other than a temporary home. He said in terms, that this was a squat, that he felt it was so bad that maybe, after having been evicted from a number of previous squats, he would be able to stay there for a while. He did not expect to be in the premises for more than about six months. He was waiting for an eviction notice from the landlords of the premises, confidently expecting that it would be coming, for a period of some 12 years. He knew that one day he was going to be evicted, but he said he had no intention of moving out until he got evicted."
In fact the appellant said in evidence that he did not expect to be there longer than six months or a year.
"He went further. He was unaware of the provisions of the Limitation Act. He did not move in thinking that after 12 years he would become the owner of the flat and, indeed, he acknowledged in the course of his cross-examination that it was not until after proceedings were served upon him by the local authority and he sought legal advice that he realised that that was the position.
He said "I realised that I'd not got a leg to stand on, except that I'd been there for 12 years. I don't want the freehold of the premises " - He is not seeking to make any sort of profit out of his situation. " and if in the last 12 years someone had asked me to pay rent to them I would have said 'Great'". The final point he made in this context was that if the council had approached him at any time during that period and given him the chance to stay there he would have leapt at the chance."
"I think that the matter which bears most particularly upon this is that whereas it may be right that he would be entitled to do the best he could within the processes of the law to exclude the landlord, what Mr Blackburn actually indicated to me in terms of the course of his evidence was that if the landlord had come along and endeavoured to treat with him in order to regularise his position he would have co-operated in that negotiation. In other words, he did not regard himself as someone who was there to the exclusion of the landlord. He regarded himself as someone there at the sufferance of the landlord with whom he would be prepared to negotiate in the event that the landlord came to reassert his title. In other words, far from having the animus possidendi required, what he actually had was the intention to squat in the premises for so long as it was practicable that he should do so, recognising that his tenure could come to an end at any time.
. the fact of the matter is that for a very significant period of time, if not throughout that time, Mr Blackburn clearly was of the view that he held subject to the overriding interest of the local authority, which he acknowledged."
The acknowledgment referred to there was an acknowledgment in evidence, not a written acknowledgment for the purposes of section 29 of the Limitation Act 1980 of the kind considered by this court in the recent unreported case of Lambeth v George Bigden, 1st December 2000.
LORD JUSTICE LAWS:
LORD JUSTICE JUDGE:
"If the landlord had come along and endeavoured to treat with him in order to regularise his position he would have co-operated in that negotiation .."
From this conclusion, the judge inferred that:
"In other words, far from having the animus possidendi required, what he actually had was the intention to squat in the premises for as long as it was practicable that he should do so, recognising that his tenure could come to an end at any time .. Mr Blackburn clearly was of the view that he held subject to the overriding interest of the local authority, which he acknowledged."
To avoid any misunderstanding, the acknowledgement to which the judge was referring was the evidence given by Mr Blackburn to him at the hearing, rather than any evidence of an acknowledgement to the local authority at any time during the period of adverse possession that it enjoyed an "overriding interest".
"I would have paid rent on the land in dispute if anyone had come along. Nobody showed up. I didn't try very hard to find the owner. If somebody had come along I would either have taken a lease or got off the land. After I had been on the land for seven years I started claiming the land."
Lord Diplock, giving the advice of the Privy Council, observed, at 24:
"Their Lordships do not consider that an admission of this kind, any candid squatter hoping in due course to acquire a possessory title would be almost bound to make, indicates an absence of the animus possidendi necessary to constitute adverse possession."
I do not find any relevant distinction in principle between the admission made by the defendant in Ocean Estates Limited, and Mr Blackburn's concessions in the present case.
"The animus possidendi involves the intention, in one's own name and one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the law will allow."
"Nevertheless, I agree with the judge that 'what is required for this purpose is not an intention to own or even an intention to acquire ownership but an intention to possess' that is to say, an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title."
"My interest in the land is this. All we want is to be allowed to keep our caravans here to live. It's a big quarry and we are only at one corner. I would like to know if perhaps someone could tell me how much the small corner where we are would be to buy. I am sending £66 off this week for planning permission. I don't want to build anything I just want to live."