Property Law uk

Maintained by Gary Webber

Consent

Introduction

If a person is in occupation of property with the consent of the owner he is not in adverse possession. "It is clearly established that the taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Act." (Pye v Graham at para 37). A number of matters arising out of this principle are dealt with on this page.


Change of paper owner

Clowes Developments (UK) Ltd v Walters
[2005] EWHC 669 (Ch)

Facts

The paper owner transferred the property and the new owner (the claimant in the case) became the registered owner. The defendants argued that this transfer brought the original licence granted by the original to an end so that adverse possession then started.

Held

The defendants did not suddenly acquire an intention to possess when the transfer took place. They still believed that their possession was with the consent of the paper owner. Thus, adverse possession did not arise. To acquire adverse possession it is necessarily to show factual possession and intention to possess. Hart J at paras 40 and 41:
    "It is .. in my judgment clear that a person who is in factual possession and who intends to remain in possession (and to use that factual possession for his own benefit) so long as the true owner continues to permit him to do so does not have the necessary intention to possess for the purpose of starting a period of limitation running in his favour. Thus if .. As response to an inquiry as to how he happens to be in occupation and control of the locked house is that he is there with the permission of the true owner, it is not open to him to say that by being there he intends to dispossess the true owner. He does not have the necessary intention, and that is so whether or not he is correct in his belief that he does have that permission and whether or not he is correct in his belief as to the identity of the true owner.

    That position must (and can) be distinguished from the case where the squatter, knowing he has no permission, has the intention to possess until such time as the true owner chooses to evict him.

    If that approach is correct it is, in my judgment, sufficient to dispose of this case. Both Claire and Nigel believed that they were in possession of the property as a result of the permission which Mrs Walters had from Mayfair and as a result of Mrs Walters having been content for them to stay on at the property notwithstanding her own departure. They may not have known of, or attached any significance to, the change of the ownership from Mayfair to Clowes Developments. They believed throughout that their factual possession of the property was the result of some arrangement reached with Mrs Walters."

Continuing consent

Trustees of Grantham Christian Fellowship v The Scouts Association Trust Corporation
[2005] EWHC 209 (Ch)

Facts

The Scouts purchased a plot of land in February 1957. The Church purchased the adjoining plot a few days later. The Church had paper title of the land in dispute. In 1959 the Church noticed that the Scouts had tents pitched on the disputed land. Permission was granted for the tents to remain so long as the grass was cut and the land was kept tidy. As there was permission there could not be adverse possession. In 1985 the Scouts constructed a rockery garden, planted some ornamental trees and shrubs and erected a new picket fence at one end of the disputed land.

In 2000 the Scouts obtained possessory title of the disputed land from the Land Registry. In 2002 the Church applied for first registration as freehold proprietors with absolute title of the disputed land and for cancellation of the Scouts registration. The deputy solicitor concluded that the Scouts had been in adverse possession from 1985. The Church appealed.

Held

On the facts as found by the deputy solicitor he was wrong to find adverse possession from 1985 onwards. The Church continued to be in occupation with consent. The fact that licence continued for many years did not mean that it ceased to be a licence. Blackburne J.
    "28. The difficulty was that the licence was oral and did not require any payment to be made for the right to use the disputed land. It merely required the Scouts to keep the land neat and tidy, which they did. The fact therefore that very many years passed without there being any contact between the Church and the Scout Group over the latter's use of the disputed land, much less any acknowledgement of the continuing existence of the licence, did not mean that somehow the licence ceased to be operative. In this respect the licence is in marked contrast to the grazing agreement in [Pye v Graham] which was for a fixed term which expired and which the landowner refused to renew."
In relation to the acts in 1985 relied upon as establishing adverse possession Blackburne LJ said:
    "31. It is difficult to see why some at least of those actions should be regarded as outside the scope of the 1959 licence. The fencing in of the land which, according to the unchallenged evidence of the Scout Association's witnesses, had occurred years earlier, so far from being inconsistent with the licence, seems to me to be entirely consistent with keeping the land neat and tidy given that, at the time that the land was purchased by the Church in 1957, it had been used as a place on which to dump rubbish. It is likewise a little difficult to see why the planting of ornamental trees or shrubs should be outside the scope of the consent."
And even if some of the acts were outside the terms of the licence that did not mean that adverse possession arose:
    "32. Be that as it may and assuming that the activities (or some of them) referred to by the Deputy Solicitor were outside the scope of the licence and that as a result the Scouts 'were treating the land as their own, unrestricted by any licence or consent', I do not see that it follows that the Scouts' licence to use the disputed land thereby came to an end. In an earlier passage in his Decision, the Deputy Solicitor seems to suggest that the continued existence of the licence was dependent upon the Scouts not stepping outside the range of activities on the land permitted by the licence

    33. Whilst it is of course possible to agree a term of a licence that the licence will automatically end on the occurrence of a particular event and while, if the circumstances of the case justify it, it may be possible to imply such a term, I cannot think that, in a licence as vague as this (to have the use of the land in return for cutting the grass and keeping it neat and tidy), it would be remotely right to imply a term that so soon as the Scouts stepped outside the terms of their permitted user, for example by failing for a period to keep the land neat and tidy or by allowing an activity to take place on the land which was outside the range of activities contemplated by the parties when the licence was granted, the licence automatically ended and thereafter the Scouts became trespassers on the land."
Comment

Personally I am not too sure about the last point. I would have thought that if a squatter has done a number of possessory acts over a period of time he has done them outside the licence and that this would be sufficient to give rise to adverse possession. Note also that the solicitor to the Land Registry is no longer an arbiter of Land Registry disputes. All such disputes are now referred to the independent Land Registry Adjudicator . And of course, subject to transitional provisions, adverse possession claims are now governed by the Land Registration Act 2002.

Implied consent - negotiations

Bath and North East Somerset DC v Nicholson
Kim Lewinson QC sitting as a High Court judge.
(Referred to at paragraph 34 of Colin Dawson Windows Ltd v Howard [2005] EWCA Civ 9 - see immediately below)

An occupier cannot establish adverse possession where he is in occupation with the consent of the owner. In this case the squatter had broken into the property without the knowledge of the claimant and was in adverse possession. However, when the owner became aware of his presence negotiations commenced for the grant of a lease to him. The judge held on all the facts that once the claimant had become aware of the squatter he remained in possession with consent. The owner was entitled to rely upon a letter headed without prejudice from the occupier proposing terms for a new lease. The squatter failed to establish 12 years adverse possession and had to leave.


Colin Dawson Windows Limited v Howard

[2005] EWCA Civ 9

Claim to title by adverse possession failed because for a number of years the claimants (the Dawsons) negotiated with the defendant (Mrs Howard) to purchase the property. It is natural to draw an inference of permission where a person is in possession pending negotiations for the grant of an interest in that land. Where that inference is drawn the possession cannot be adverse. (Bath and North East Somerset DC v Nicholson above applied).
    "In the present case, the implication of the correspondence was that Dawsons could remain on Mrs Howard's property only if negotiations proceeded for its sale to them. That had been the position during the latter part of September 1987 and was again the position during the period from November 1990 down to at least August 1991. The latter period prevents Dawsons' possession being adverse for twelve years prior to Mrs Howard's counterclaim. The correspondence certainly constituted overt and objective acts, and in my judgment a reasonable person in the position of either Dawsons or Mrs Howard would conclude that Dawsons were being permitted to remain on the land pending the completion of the negotiations. Thus, if Mrs Howard had sued pending the breakdown of the negotiations for trespass to her property, Dawsons would have had a defence based on her implied permission. In my judgment Dawsons' claim in adverse possession therefore fails." (para 39, Rix LJ).
Smart v The Mayor and Burgesses of the London Borough of Lambeth
[2013] EWCA Civ 1375

Summary

The occupation by the Claimant and his predecessors had been with the express or implied permission of the owner. The court will look at the reality of the situation when applying the test as to whether there was in fact express or implied consent. The absence of a contractual relationship does not prevent consent being validly given. The fact that a licence may be withdrawn at any time will not assist a party seeking to establish adverse possession if in fact that licence is not withdrawn for the period in question.

Facts

The council (C) acquired some properties which were subsequently occupied by squatters. C allowed the squatters to remain in order to assist with repairs. An unincorporated association was established to manage the properties. T occupied the property and T’s boyfriend signed a licence agreement under a scheme organised by C. The only issue on appeal was whether it could be said that the occupation by T was without C’s permission. There was no dispute as to factual possession for the relevant period.

First instance

The High Court held that one of the key aspects of the scheme entered into by C was the regularisation of the occupation of the houses so as to avoid the need to evict the existing squatters. By these negotiations C tacitly or impliedly gave permission to T to occupy the property at least during the pendency of those negotiations. The Court held that there had been an express or implied grant of permission to occupy the premises.

Decision on appeal

Court of Appeal dismissed the appeal and found for C. It held that there needed to be some overt act by the landowner or some demonstrable circumstances from which the consent could be implied. It was irrelevant that the user was aware of the overt act or demonstrable circumstance. It did, however have to be established that a reasonable person would have appreciated that the user was with the permission of the owner (London Borough of Lambeth v Rumbelow (2001) WL 239755 followed).

It was conceded on appeal that the occupation during the negotiation period at the start was with permission.

The Court considered whether the judge was right to hold that once the scheme was implemented, the occupation of the property by T and his predecessors was with the express or implied consent of C. T was aware that he derived his right to occupy from the superior title which the association possessed under the scheme of occupation and this was demonstrated by his payment of rent and his involvement with certain possession proceedings. Any reasonable person would have been aware that their occupation was under the scheme. The Court rejected T’s arguments that the court should infer that the licence to occupy was limited in duration. The judge at first instance was entitled to find that the consent would continue until revoked.


Lack of knowledge of occupation

Tower Hamlets London Borough Council v Barrett
[2005] EWCA CIV 923

An implied permission to occupy cannot properly be inferred where the supposed licensor is unaware of the occupation of the supposed licensee.


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