England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
His Honour Judge Cox

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 14th June 2001

LORD JUSTICE CLARKE:

Introduction

1. This is an appeal from an order of His Honour Judge Cox made in the Lambeth County Court on 19^th February 2001 in which he made an order for possession of flat 6 Granville House, Rushcroft Road, London SW2 ("the flat"). The order was made in favour of the respondent ("the Council") and against the appellant. The judge refused permission to appeal. So did Simon Brown LJ on paper but permission was subsequently given by Pill and Arden LJJ.
2. The appellant claimed a right to possession of and title to the flat by adverse possession. The judge rejected his claim and the issue on this appeal is whether he was right to do so.

Background and Issues

3. The freehold of the building containing the flat is and has since 1975 been registered in the Council's name. The flat is a second floor flat in a four-storey purpose built block dating from the 1880s which is situated in the heart of Brixton close to the tube station. There are eight flats in all, two on each floor. There is no leasehold interest in the flat. The Council issued these proceedings on 27^th April 2000.
4. The appellant was joined as a defendant on 16^th May 2000. By his defence and counterclaim he contended that he had been in sole possession of the flat since February 1988, that the Council's claim was statute barred by reason of section 15(1) of the Limitation Act 1980 and that the Council held the flat in trust for him under section 75(1) of the Land Registration Act 1925. The judge held that the claim was not statute barred.
5. The judge's reasoning was that, although the appellant had established physical possession over 12 years, he had not shown the necessary intention to possess the flat during that period and therefore that he had not been in adverse possession and time had not run against the Council.
6. Section 15(1) and (6) of the Limitation Act 1980 provide:

"(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."

7. Part 1 of Schedule 1 to the Limitation Act 1980 provides so far as relevant as follows:

"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."

8. The effect of adverse possession is as follows. Section 17 of the Limitation Act 1980 provides so far as relevant:

"Subject to

…

(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.

9. It follows from the fact that this action was brought on 27^th April 2000 that the question is whether the appellant was in adverse possession of the flat from 27^th April 1988 until 26^th April 2000. If (contrary to the view of the judge) the answer to that question is 'yes', a further question will arise between the parties, namely whether the appellant is or was entitled to acquire an easement of right of access to the flat over the common parts of the block. It has, however, been agreed between the parties that if this appeal succeeds that further question should be remitted to the county court for hearing.
10. The judge held that the appellant had factual possession of the flat for the requisite period. The Council, however, now wish to take a point which was not taken below, namely that the appellant had factual possession of only one room and not the whole flat. The Council did not take that point before the judge but sought permission to do so in this court. We refused permission to allow the Council to take the point. The point should have been taken before the judge and, if it had been, it is likely that some parts of the evidence would have been different. In these circumstances we reached the conclusion that it would not be just to allow the Council to advance the point now.
11. As already stated, the judge held that, although the appellant had factual possession of the flat for the requisite twelve years, he did not have the necessary intention to possess. In the light of the ruling to which I have just referred, the Council does not challenge the judge's conclusion as to factual possession of the flat, so that it follows that the question for decision on this appeal is whether the appellant had the necessary intention to possess or, as it is sometimes called in the cases, animus possidendi. Before addressing that question on the facts, in the light of the submissions that were made by Mr Arden QC on behalf of the Council, it is I think appropriate to consider briefly the relevant principles in the light of the authorities.

The Principles

12. It is common ground that in order to establish adverse possession, a trespasser must show that he has both factual possession of the land and the requisite intention to possess the land: Buckinghamshire County Council v Moran [1990] 1 Ch 623 per Slade LJ at 636 C. Those features of adverse possession were considered in detail by Slade J in Powell v McFarlane (1977) 38 P & CR 452. The principles there stated were expressly approved by this court in Moran: see per Nourse LJ at 646 H.
13. In Powell Slade J put the principles thus (at pp 470):

"(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.

Factual Possession

14. Slade J added (at pp 470-1):

"(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."

15. It is important to note on the facts of the instant case that that test was satisfied. Thus the appellant was in exclusive occupation of the flat and dealt with it, in terms of occupation, as an occupying owner would have done.

Intention to Possess

16. It was made clear in Moran (per Slade LJ at p 643) that an intention to own the land is not required. Some of the statements of principle in Powell must be read subject to that reservation. It is correctly accepted on behalf of the Council that it cannot argue the contrary in this court. The requisite intention is thus not to own the land but to possess it to the exclusion of everyone else, including the true owner. The nature of the intention was addressed by Slade J in the paragraph in Powell marked (4) (which follows those marked (1) to (3) quoted above) at pp 471-2 as follows:

"(4) The animus possidendi, which is also necessary to constitute possession, was defined by Lindley MR in Littledale v Liverpool College [1900] 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."

17. That is an important passage in the context of the present case because it emphasizes the fact that trespassers are likely to be aware that they will in practice be unable to exclude the owner if he takes steps to recover possession of his property. It thus shows that in order to have the necessary intention the trespasser does not have to regard himself as entitled to exclude the lawful owner from the premises. It is to my mind sufficient if he intends to keep the true owner out for the time being and until he is evicted.
18. It is not perhaps immediately obvious why the authorities have required a trespasser to establish an intention to possess as well as actual possession in order to prove the relevant adverse possession. It seems to me that the answer lies in the fact that the possession must be adverse, that is adverse to the interest of the paper owner. It can only be adverse if the adverse possession is apparent to the owner; that is if it is manifest to the owner that the trespasser intends to maintain possession against the whole world including the owner. That does not mean that it must in fact be known to the owner, but that it must be manifested to him so that, if he were present at the property he would be aware that the trespasser had taken possession of it and intended to keep others out.
19. The necessity for the manifestation of the adverse possession is clear from the next passage in the judgment of Slade J in Powell which follows from that just quoted:

"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."

20. It is thus of crucial importance that the trespasser's acts must be unequivocal. They must make it clear to the owner, if present at the land, that he intended to exclude the owner, as Slade J put it "as best he can". To similar effect Slade J said (at p 480):

"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.

21. It is I think because of the need for the acts of the trespasser to be unequivocal and manifested to the true owner that the courts have tended to say that whether the trespasser had the necessary intention is to be inferred from the acts themselves. Again guidance is to be found in the judgment of Slade J in Powell. He said (at p 476):

"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.""

22. As Mummery LJ pointed out in JA Pye (Oxford) Ltd v Graham [2001] EWCA 117 Civ, [2001] 2 WLR 1293 at paragraph [34(1) and (2)], the issue of intention at any time is one of fact and must be proved like any other fact. Mr Arden submits that Mummery LJ said in paragraph [34(3)] that where the inference to be drawn from his acts was that the trespasser had the requisite intention but that his own evidence contradicts that conclusion, the trespasser cannot establish the requisite intention. I do not, however, so read that paragraph. Mummery LJ was simply making a comment on the facts of that case to the effect that the trespasser's evidence supported the paper owner's case and was not self-serving but evidence against interest. Such evidence is ordinarily regarded as of considerable weight because it is more likely to be true than evidence which is self-serving.
23. In the instant case, as appears further below, it is my view that the appellant's evidence does not support the Council's case. In my judgment, as so often, this case largely turns on the inferences which can be drawn from the acts of the appellant. In considering what inferences can be drawn from them, some assistance can I think be obtained from the cases. Thus enclosure of the land has been regarded in the past as of some importance. None of the cases to which we were referred involved occupation of a flat or building, but in Moran the defendant or his predecessor in title Mr Wall enclosed a plot of land owned by the plaintiff council. It was the defendant's understanding that Mr Wall would only lose the land if the council were to require it for a by-pass. The defendant had put a new lock and chain on the gate.
24. Slade LJ expressed the view (at p 641) that the defendant and his mother had been dealing with the plot as any occupying owner would have done and agreed with the judge, Hoffmann J, that he had factual possession of it. Slade LJ then considered whether the defendant had the requisite intention. He cited these observations by Lord Halsbury in Marshall v Taylor [1895] 1 Ch 641 at 645:

"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."

25. Slade LJ then referred to the fact that a number of authorities indicate that enclosure by itself indicates the requisite animus possidendi, as for example "the strongest possible evidence" per Cockburn CJ in Seddon v Smith (1877) 36 LT 168, 169 and "the most cogent evidence" per Russell LJ in George Wimpey & Co Ltd v Sohn [1967] Ch 487, 511. It was submitted on behalf of the council in Moran that none of the defendant's acts was inconsistent with the council's known future intentions, namely to use the land for a by-pass in due course. Slade LJ expressed his conclusions thus (at p 642 E to F):

"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.""

26. That approach seems to me to be of assistance here because, as appears below, it is my view that the actions of the appellant in breaking the Council's lock on the flat and replacing it with a new one of his own and thereafter living in the flat as his home were also unequivocal indications to the Council that he was intending to exclude everyone, including the Council, from the flat. I shall, however, return to the facts below.
27. Mr Arden submits that it is not sufficient for an adverse possessor to intend to possess the property only temporarily. He does not go so far as to say that he must intend to possess the property for twelve years or more but submits that at least he must intend to possess it indefinitely and not temporarily. However, for my part, I would not accept that submission. It seems to me to be inconsistent with both principle and authority. In Moran it was submitted that the defendant's claim should fail because he did not intend to exclude the council in all future circumstances. Thus he did not intend to exclude the owner when and if the land was required for a by-pass. This court held that it was not necessary to intend to exclude the paper owner in all future circumstances.
28. Slade LJ expressed his conclusion in this way (at p 643 E to F):

"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."

29. It is in my judgment plain from that decision and the principles to which I have referred that in order to be an adverse possessor a trespasser must have actual possession of the property throughout the twelve year period before the commencement of the proceedings and that throughout that period he must have a present manifested intention to possess the property to the exclusion of all others including the paper owner. As Slade LJ put it in the passage just quoted, he must have that intention "for the time being". The fact that at any particular moment he expects or intends to leave the property in the near future does not prevent his having that intention, but in order to defeat the paper owner's claim for possession he must in fact remain in possession for the full twelve years and he must have a present intention to remain in possession throughout that period.
30. Mr Arden seeks to draw a distinction between occupation which amounts to mere trespass, as in the case of Slade J's person who is "merely a persistent trespasser", and occupation which amounts to adverse possession. He also points to the fact that occupation "under" the owner as tenant or licensee cannot give rise to adverse possession. He refers to the cases which have considered the significance of a willingness on the part of the person in occupation to pay for that occupation, whether as tenant or licensee, and seeks to distinguish between the following:

(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 [1969] 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).

31. Mr Arden recognizes that the distinction is a fine one, but submits that it can also be put as a difference between someone who actively wants to pay because his prime object is to be able to stay (like the appellant here, who would have "leapt" at the opportunity to pay) and someone who is passively willing to pay if he needs to do so as an alternative to being evicted because the owner exercises his rights. Mr Arden submits that an adverse possessor of any class is therefore someone who is seeking to hold possession of land (and thus dispossess the owner), whether by mistake or by positive intention, as distinct from someone who either has a right to possession as a tenant or licensee or hopes to stay on as a trespasser. The question he submits is what is the dominant intention of the person concerned.
32. I am not sure that I entirely follow the distinctions which Mr Arden is seeking to make, but there are to my mind too fine. First, I accept Mr Rowley QC's submission that no assistance is to be found in a comparison with those who are in occupation with the owner's consent, whether as tenant or licensee. Secondly, I can see no support for fine distinctions of the kind proposed in any of the authorities. There is, to my mind, no distinction between active and passive occupation, unless active occupation simply means possession with animus possidendi whereas passive occupation means occupation without such an intention.
33. Thirdly, the relevance of willingness to pay to remain in the property may depend on the circumstances. Thus in Pye, which was a very different case from this on the facts, Mummery LJ said (at paragraph 13) under the heading "Oral Offers of Squatter":

"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 [1995] 2 EGLR 124 at 126; cf Davies … at p 496."

34. There may perhaps be cases in which an expression of willingness to pay rent, when assessed in its context, might tend to negative an intention to possess property, but I would expect the ordinary case to be that expressed by the Judicial Committee of the Privy Council in Ocean. In that case the squatter had said that, if the owner had come along, he "would either have taken a lease or got off the land". Lord Diplock said (at p 24):

"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.

35. Mr Arden places some reliance upon Davies, in which there is a passage in the judgment of Neill LJ at p 496, which suggests (as Neuberger J put it at first instance in Pye [2000] Ch 676 at 692 H) that the court took the view that the fact that the squatter said that she would have been prepared to pay rent prevented her from having the requisite animus possidendi. However, like any case, Davies must be considered in its context, which was an application for judicial review of a decision by the relevant Secretary of State that she could not appeal against an enforcement notice because she had no interest in the land on part of which her caravan was placed. The dispute came to this court on appeal from a refusal of an application for judicial review on the basis that it was not unreasonable or perverse of the Secretary of State to hold on the evidence that she was a trespasser. Neill LJ simply said at p 496 that it seemed to him that the offer to pay rent "in the context of this correspondence" was inconsistent with an intention to claim a right to possession against the world including the true owner. He concluded in this way:

"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".

36. In all these circumstances there is in my judgment no place for the kind of narrow distinctions suggested by Mr Arden. The questions are those posed by Slade J in Powell and endorsed by this court in Moran. Much depends upon what inferences can be drawn from the facts which would be apparent to the owner. I recognise that for obvious reasons the courts have tended to approach claims by trespassers that they are adverse possessors with disfavour. However, I would not for my part think it appropriate to strain to hold that a trespasser who had established factual possession of the property for the necessary twelve years did not have the animus possidendi identified in the cases. I express that view for two reasons. The first is that the requirement that there be a sufficient manifestation of the intention provides protection for landowners and the second is that once it is held that the trespasser has factual possession it will very often be the case that he can establish the manifested intention. Indeed it is difficult to find a case in which there has been a clear finding of factual possession in which the claim to adverse possession has failed for lack of intention. For example it appears to me that the claim essentially failed in Powell because there was no dispossession of the owners by the 14 year old Mr McFarlane in 1956 or 1957 (see page 480) and in Pye I do not read this court as concluding that the Grahams had factual possession of the land.
37. Finally before turning to the facts, I note that the Law Commission is in the course of considering some aspects at least of adverse possession: see Part X of its consultation paper "Land Registration for the Twenty-First Century dated 24^th June 1998. If it is thought that trespassers like the appellant should not in principle be entitled to obtain an interest in the property by adverse possession, it seems to me that it should be left to Parliament to decide what the law should be.

The Facts

38. The question is whether, on the facts, the appellant had animus possidendi of the flat in the sense discussed above throughout the twelve year period. These were the salient findings of fact. In 1978 the Council granted a tenancy of the flat to a named tenant (not the appellant), but in about 1982 or 1983 it gave the tenant notice to quit. Until it began taking action in 2000 the Council had (as the judge put it) done absolutely nothing about the flat since about 1983. As I understand it the flats in the building became squats.
39. The judge accepted the appellant's oral evidence that he had moved into the flat by February 1988. His evidence was supported by others, including a Ms Rice. The judge said that he accepted, as he put it, without any reservation, that the appellant did move into the flat in February and that he has been in de facto occupation of it for the entirety of the relevant twelve year period.
40. The appellant's evidence was that on arrival he broke the padlock which had been on the front door. Although the judge did not make an express finding to that effect, he accepted the appellant's evidence as reliable and there is no reason to think that he did not accept that part of his evidence. In any event, the Council does not suggest the contrary. Indeed, it was put to the appellant in cross-examination that he broke the padlock which had been on the front door. The judge held that one of the first things that the appellant did on arriving at the premises was to install his own yale lock on the front door, which was a substantial metal door. The appellant secured the door with a single yale lock, which the judge said "did not make it particularly secure, although it might have appeared to be so".
41. The appellant had been in a number of squats previously. When he moved into the flat it was regarded even within the squatting community as uninhabitable. The flat was in a lamentable condition. There had been a fire which had caused considerable damage. Ceilings had come down and other trespassers had been guilty of depredation of the premises. An earlier squatter had even removed the bath. When he first arrived there the appellant was without electricity, heating, and any means of cooking or bathing, although he did have a water supply and there was a flushing toilet. He later made an arrangement with the squatters in the flat upstairs for them to drill a hole in the ceiling and pass an electrical cable into flat 6, through which he obtained light and, later, power.
42. At first he used only one room but gradually as time went on he set about improving the premises and ultimately all the rooms became habitable. One he used as a studio and others he used as a living room, a kitchen, a bathroom (in which in due course he installed a bath) and a bedroom. By 1998 he had had electricity installed and had rewired the flat so that it became completely habitable.
43. I accept Mr Arden's submission that we are concerned with the possession which the appellant had throughout the twelve years. We are thus concerned with the position at the outset, which can be summarised as follows. The appellant broke the padlock on the front door and installed his own yale lock. He moved into the flat and lived there as his home. He continued to live there for the next twelve years or more, gradually improving the flat and making it more habitable as time went by. He was in factual possession of the flat throughout the whole of that period.
44. Mr Rowley submits that on those facts the appellant intended to possess the flat to the exclusion of everyone including the Council and that he manifested that intention to the world including the Council as the true owner. He submits that from the outset the appellant satisfied the tests for intention discussed above. In particular he makes two submissions. The first is that the appellant dispossessed the owner by breaking the padlock and replacing it with a yale lock of his own, as contemplated by Slade J in Powell (see paragraph 19 above), by Lord Halsbury in Marshall (see paragraph 24) and by Slade LJ in Moran (see paragraph 25).
45. The second submission is that that dispossession was manifest to the true owner or, more relevantly, would have been if the Council or its representative had been present at the property (see paragraphs 19 to 21). If the owner had had a representative present at the flat from the beginning, he would have appreciated that the existing padlock had been removed, that it had been replaced by a new yale lock and that the appellant was living in the flat.
46. I accept those submissions. In my judgment, if the appellant's intentions are to be judged entirely by reference to his acts, as Sachs LJ said in Tecbuild in general they are (see paragraphs 21 and 25), the position may be summarised much as it was by Hoffmann J in Moran at first instance (paragraph 25). I do not think that if the council, on making an inspection had found the old padlock removed, a new yale lock installed and the appellant in residence it could have come to any conclusion other than that the appellant was intending to exclude everyone including the council itself from the flat. Mr Arden submits that the installation of a yale lock was equivocal and not unequivocal because it might only have indicated an intention to keep whatever had been put inside the flat secure from thieves. However, for my part, I do not think that that is a fair conclusion. In any event the installation of the yale lock was not the only step taken. The appellant had also removed the existing padlock and was living in the flat as his home. Those facts, taken together, would in my opinion have shown the owner unequivocally that the appellant intended to exclude everyone, including the Council, from the flat. They amounted to a "final unequivocal demonstration of the defendant's intention to possess the land", as Slade LJ put it in Moran (see paragraph 25).
47. Indeed, if, contrary to the view which I expressed in paragraph 32, it is appropriate to draw the distinctions suggested by Mr Arden (and set out in paragraphs 30 and 31) this is a case in which the appellant actively sought to dispossess the owner and did not simply passively occupy the property so that, even on that approach, in my opinion he had the requisite intention to possess.
48. I turn to the reasons why the judge held, albeit reluctantly, that the appellant did not have the relevant intention. They depended to a large extent upon the oral evidence given by the appellant. I accept of course that such evidence is relevant, especially if it is against his interest: see Pye per Mummery LJ at paragraph [34(3)] and paragraph 22 above. Such evidence is of course only part of the evidence in the case and must be considered along with the evidence of overt acts to which I have already referred.
49. The judge said that the appellant had given evidence with commendable honesty and frankness, but that he made a number of significant admissions. As I read the judgment, it was essentially those admissions which led the judge to hold that the appellant did not have the requisite intention. The judge first set out that part of the appellant's evidence which focused on how long he expected to stay in the flat. The judge said:

"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.

50. Mr Arden relies upon that evidence and those findings as contradicting the necessary intention to possess because they show that the appellant only expected to be in the flat for a short period and that his intention to possess was a temporary one and not being exercised against the paper owner. However, I do not accept that submission. It seems to me to run counter to the approach in the cases. The appellant said that he had no intention of leaving until he was evicted, although he expected to be evicted at any time. As I see it, he thus satisfied the test propounded by Slade J in Powell (see paragraphs 16 and 19), namely by showing an intention to exclude the world at large including the paper owner "so far as is reasonably practicable and so far as the processes of the law will allow" or "as best he can". He intended to keep the true owner out for the time being and until he was evicted, which was in my judgment sufficient (see paragraphs 17, 20 and 28).
51. The judge set out a further part of the appellant's evidence as follows:

"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."

52. The judge then referred to the evidence as to the locks to which I have referred and quoted a considerable part of the judgment of Slade J in Powell, which I have already set out. Thereafter he observed that the appellant did not regard himself as being "entitled to exclude the lawful owner of the premises". His conclusions are set out as follows:

"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, 1^st December 2000.

53. Although Mr Arden places some reliance upon the appellant's evidence (and the judge's finding) that he would have leapt at the chance of paying rent if he had been approached by the Council and allowed to stay, he does not seek to rely upon that part of the judge's reasoning which relies upon the appellant's acknowledgment of the Council's title. He is right not to do so, because, as already stated, an intention to own the property is not required and, as Slade J put it Powell, the squatter on property will realise that, at least until he acquires a statutory title by long possession, he will not for practical purposes be able to exclude the owner (see paragraph 16). He must merely intend to exclude the owner so far as reasonably practicable and so far as the processes of the law allow.
54. The fact that, if the Council had come along, the appellant would have negotiated with him and, if he had been allowed to stay if he paid rent, he would have leapt at the chance, does not, in my judgment, negative the requisite intention to possess. While recognising, as I indicated in paragraph 34, that there may perhaps be cases in which an expression of such willingness might tend to negative an intention to possess property, this seems to me to be an example of the ordinary case, where, as Lord Diplock put it in Ocean, an admission that if the owner had come along the trespasser would either have taken a lease or got off the land does not indicate an absence of the animus possidendi necessary to constitute adverse possession.

Conclusion

55. In all these circumstances I have reached the conclusion that the judge should have held that there was nothing in the appellant's evidence to lead to the conclusion that he did not have the requisite intention. On the contrary his evidence supports the inference to be drawn from the appellant's acts in breaking the padlock, replacing it with a yale lock, moving into the flat and living there as his home, namely that he had shown an intention to dispossess the owner and to remain in possession for the time being until evicted. That intention did not alter throughout the twelve years or more that he remained in factual possession of the flat. It follows that, in my judgment, the appellant established adverse possession of the flat for the necessary twelve years before the proceedings were brought with the result that the council's claim to possession was time barred by section 15(1) of the Limitation Act 1980. For these reasons I would allow the appeal.

LORD JUSTICE LAWS:

56. I agree that this appeal should be allowed for the reasons given in the judgments prepared by Clarke and Judge LJJ, which I have had the advantage of reading in draft.

LORD JUSTICE JUDGE:

57. I agree with Clarke LJ. I add some comments of my own in deference to the contrary conclusion reached by Judge Cox.
58. The judge rejected the defendant's assertion of rights based on adverse possession under the Limitation Act 1980 because the defendant accepted 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….."

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".

59. In my judgment, of itself, the judge's findings did not provide a sufficient basis for concluding that Mr Blackburn had failed to establish the required animus. There are those whose possession of land as trespassers is inadvertent: they honestly but wrongly believe that the land belongs to them or they have a title to it or better right to possession than anyone else. There are others who fully appreciate that they are in possession as trespassers, squatting on or using the land contrary to the rights of the "owner" (a word used in a non technical sense), who may or may not be known to them, and therefore acknowledge that they are liable to be evicted at any time. Mr Blackburn fell within this second category. What is more, in his own mind he wisely accepted throughout the period of his trespass that if the true "owner" came along, rather than assert any title or right to possession which he knew perfectly well he did not have, he would defer to him, either by negotiating a rent, or leaving the premises. Carried to its logical conclusion, if Judge Cox were right, the trespasser who took possession of land, knowing that he had no right to do so, but saying to himself as he did, "here I am, they will never get me out", and thereafter proceeded actively to resist any attempt to remove him, would, in the context presently under consideration, be in a much stronger position to sustain a claim based on adverse possession. That conclusion would be surprising.
60. In my judgment however it is clear that the necessary animus is not dependent on the trespasser demonstrating an intention to oust the "owner" from the land, or to claim or assert rights of ownership. In Ocean Estates Limited v Norman Pinder [1969] 2 AC 19, the defendant's claim to a possessory title would have been rejected on the basis of an admission that

"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.

61. With one possible exception, R v Secretary of State for the Environment, ex parte Davies (1990) 61 P. & C.R., 487 to which I shall come shortly, this principle had been consistently acknowledged. Thus for example, in Powell v McFarlane (1977) 38 P. & C. R. 452, at 471 – 472, Slade J commented:

"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."

62. Powell v McFarlane has been endorsed as providing a valuable analysis of the relevant principles on at least three occasions in this court. (See Buckinghamshire County Council v Moran [1990] 1 Ch 623: Lodge v Wakefield Metropolitan City Council [1995] 2 EGLR 124 and JA Pye (Oxford) Limited and Another v Graham, [2001] EWCA Civ 117, [2001] 2 WLR 1293.)
63. In Buckinghamshire County Council v Moran Slade LJ, after considering dicta in various authorities, including Littledale v Liverpool College [1900] 1 Ch 19, at 23, and George Wimpey & Co Limited v Sohn [1967] Ch 487, at 510, and one of his own observations in Powell v McFarlane itself, concluded:

"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."

64. Nourse and Butler Sloss LJJ both agreed, and in his short judgment Nourse LJ provided a valuable analysis of the distinction between dispossession and discontinuance of possession of the land, which, in my view, represents a consistent application of the same principle.
65. In the context of Judge Cox's decision, it is perhaps sufficient to mention only that in Lodge v Wakefield Metropolitan City Council, a former tenant's claim based on adverse possession was successful, notwithstanding that when he stopped paying rent, he continued to believe that he remained a tenant. In summary therefore although he apparently accepted the rights of the true owner, that did not prevent his possession for the purposes of the Limitation Act 1980 being "adverse".
66. Although apparently inconsistent with this line of authorities, R v Secretary of State for the Environment, ex parte Davies, was concerned with a different, evidential problem, arising not under the Limitation Act 1980 but under the Town & Country Planning Act 1971. Significantly, Powell v McFarlane and Buckinghamshire County Council v Moran were regarded as "modern authorities which give very valuable guidance". Plainly nothing in Neill LJ's judgment was intended to cast doubt on them.
67. Neill LJ referred to an offer to pay rent made by Miss Davies which appeared to be "inconsistent with an intention to claim a right to possession against the world including the true owner". This offer was made in the context of a fairly protracted exchange of correspondence by a member of the travelling or gypsy community in relation to land made subject to an enforcement notice, who was seeking to establish that she had an appropriate interest in the land, based on the need to have somewhere to live. Writing to the Secretary of State, Miss Davies asserted:

"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."

68. This decision therefore underlines that an offer to pay rent may, when taken with other evidence, serve to demonstrate that the trespasser lacked the appropriate animus, but it is very far from establishing that an offer to pay rent, or an intention to do so if asked by the owner, conclusively undermines any claim based on adverse possession. Accordingly, rather than representing an exception, this passage in the judgment goes to the question of evidence rather than principle, which in my judgment, continues to be encapsulated in the observations of Lord Diplock in Ocean Estates Limited.
69. In my judgment, Mr Blackburn's claim based on adverse possession was not liable to be dismissed simply because he recognised that he had entered and remained in the flat as a trespasser, willing to vacate, or change his status from that of trespasser rather than require the owner to take proceedings and obtain an appropriate order from the court. I agree with Clarke LJ's analysis, and with his conclusion that this appeal should be allowed.
ORDER: The order of His Honour Judge Cox dated 19^th February 2001 is to be set aside. The claimant/respondent's claim for possession is dismissed. The claimant/respondent holds the property at Flat 6 Granville House, Rushcroft Road, London SW2 ("the flat") on their trust for the defendant/appellant pursuant to section 75 of the Land Registration Act 1925. The defendant/appellant is forthwith entitled to be registered as the freehold owner of the flat. The claimant/respondent shall pay the defendant/appellant's costs of these proceedings, both at first instance and on appeal on the standard basis. There shall be a detailed assessment of the defendant/appellant's community legal service funding in accordance with the Access to Justice Act. Permission to appeal to the House of Lords refused.
(Order does not form part of approved Judgment)