Lodge (t/a JD Lodge) v Wakefield Metropolitan Council [1995] EWCA Civ 41 (21 March 1995)

HTML VERSION OF JUDGMENT ____________________ Crown Copyright © LORD JUSTICE BALCOMBE: This is an appeal by the Plaintiff from an order made by His Honour Judge Barr-Young in the Pontefract County Court on the 11th May 1993 whereby he dismissed the Plaintiff's claim for a declaration that the Defendant's title to 11.9 acres of land near the former Whitwood Sewage Works, Achton, Castleford, West Yorkshire had been extinguished. The Plaintiff became a tenant of this piece of land from the Defendant's predecessor in title in 1969. There was no written tenancy. The rent payable was £15.0s.9d per quarter. On 6th February 1970 the Defendant's predecessor consented to the quarterly rent being paid half-yearly. The last payment of rent was made in January 1974 for the two succeeding quarters. However, in the course of evidence before the judge the Plaintiff was asked when it came to his attention that he was not paying rent for this particular land and he thought it was the late 1980s. The judgment contains a quotation apparently of the subject to certain exceptions which are not here material. Then Schedule 1 of Part I Paragraph 5 is headed Accrual of right of action in case of future interests and reads: "Subject to sub-paragraph (2) below, a tenancy from year to year or other period, without a lease in writing, shall for the purposes of this Act be treated as being determined at the expiration of the first year or other period; and accordingly the right of action of the person entitled to the land subject to the tenancy shall be treated as having accrued at the date on which in accordance with this sub-paragraph the tenancy is determined. "(2) Where any rent has subsequently been received in respect of the tenancy, the right of action shall be treated as having accrued on the last receipt of rent." Under the sub-heading Right of action not to accrue or continue unless there is adverse possession, paragraph 8 (1) reads: "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'); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land." The short point taken by the judge, and sought to be maintained before us by counsel for the Respondent/Defendant, is that because the Plaintiff believed up until 1981, or even later, that he was still paying rent to the Defendant as his landlord, his possession was therefore not adverse within the meaning of paragraph 8 (1) of Schedule 1 to the 1980 Act. There is no doubt that the Plaintiff has been in factual possession of this land since 1969. The question is whether he had, at the relevant time, the requisite intention to possess the "animus possidendi." That is what the law requires - it does not require an intention to become the owner of the land. In Powell v McFarlane (1977) 38 P & CR 452 Slade J in a case which concerned the acquisition of title under the Limitation Act by a squatter, defined animus possidendi at page 471: "The animus possidendi, which is also necessary to constitute possession, was defined by Lindley MR, in Littledale v Liverpool College (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 in a position 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 himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow." A tenant in possession is, of course, during the subsistence of the tenancy, entitled to exclude from the land the world at large, including the landlord. In Buckinghamshire County Council v Moran [1990] Ch 623, Slade LJ, after referring to Powell v McFarlane said at page 643: " ..... 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. No authorities cited to us establish the contrary proposition." So merely on the application of basic first principles it seems to me that the Plaintiff here had the necessary animus possidendi. This is consistent with the reported decisions on the acquisition of title under the Limitation Acts by an ex-tenant against his erstwhile landlord to which we were referred. Thus in Moses v Lovegrove (1952) 2 QB 533 a similar point had been taken in the court below by the landlord, but this was expressly abandoned in the Court of Appeal. Sir Raymond Evershed MR said at page 536: " ..... it was argued in the court below that since the defendant was admittedly the tenant of the plaintiff up to the time he ceased to pay rent, therefore all his subsequent occupation, albeit without any payment of rent or other acknowledgment, was referable to his having been a tenant of the plaintiff, so that at no stage was he ever in adverse possession of the premises. That point was expressly abandoned by Mr Heathcote-Williams in this court, and I do not therefore spend further time upon it, for it is now conceded by him that from the expiration of one week after May 28, 1938 (that is, after the last payment of rent) until the impact on these premises of the new Rent Act of 1939, there was adverse possession on the part of the tenant within the meaning of the Limitation Act, 1939. "But the argument is that, when on September 1, 1939, the premises again were brought within the scope of the Rent Restriction legislation, then by reason of the terms and the effect of that legislation, the adverse possession of the defendant ceased, and ceased for this reason, that thenceforward, by virtue of the Acts, the plaintiff had no right, as of course, to recover possession against the defendant, the tenant." Romer LJ in the same case said at page 543: "The tenancy was quite obviously an oral weekly tenancy, with the result that time started to run by virtue of section 9 of the Limitation Act, 1939, from one week after the last payment of rent, which was on May 28, 1938." I pause there to interpolate that Section 9 (2) of the Limitation Act 1939 is equivalent to paragraph 5 (1) of Schedule 1 to the Limitation Act 1980. The judgment of Romer LJ continues: "As no notice to quit was given, the tenant could not thereafter be said to be in immediate adverse possession in the ordinary sense, for he remained on under his contractual tenancy. Nevertheless, for the purposes of the Limitation Act, 1939, his tenancy ceased to exist, and therefore he is deemed to have remained on in adverse possession. Accordingly, the fact that for some purposes his contractual right remained in the absence of a notice to quit a writ for possession is irrelevant, as also is the precise date on which the lessor could properly have started proceedings in ejectment. The point is that after the expiration of one week from the date of the last payment of rent, the defendant is deemed to have had no contractual right to possession, and therefore to have been a trespasser or a squatter. "Why should he be regarded as being in possession by virtue of permission or grant of the owner merely because of the passing of the Rent Act of 1939?" He goes on to consider that point and later at page 544 says: "It seems to me that one can, in addition to looking at position and rights of the owner, legitimately look also at the position of the occupier for the purpose of seeing whether his occupation is adverse. In my opinion, if one looks to the position of the occupier and finds that his occupation, his right to occupation, is derived from the owner in the form of permission or agreement or grant, it is not adverse, but if it is not so derived, then it is adverse, even if the owner is, by legislation, prevented from bringing ejectment proceedings." In Moses v Lovegrove it was not suggested by a very strong court that the concession made by Mr Heathcote-Williams had been wrongly made, and Romer's LJ judgment which I have quoted does not depend upon the concession. Hayward v Chaloner [1968] 1 QB 107 is another strong case. The facts there suggested that the tenant (the rector of a parish) knew that rent was payable. Lord Denning MR said at page 117 of the judgment: "Only one of the previous rectors gave evidence. He was the Rev. Richard Phillips ..... " He gave the dates. "He knew the rectory cottages and said that the land behind the cottages was used by the occupants, including the land in dispute. He added that the land was sadly neglected and an old couple lived there. He never paid any rent for it. Mr and Mrs Hayward," they were the owners of the land, "were prominent supporters of the church. He said that he would not expect them to ask him for the 10s. per annum rent." In that same case Russell LJ said at page 122 of the report: "Nor do I doubt the applicability of section 9 (2) to the present case," I repeat that is the equivalent of paragraph 5 (1) of Schedule 1 of the 1980 Act, "just because the freeholders were content that the rector should not pay his rent and did not bother to ask for it for all those years. In Moses v Lovegrove in this court it was assumed on all hands that when section 9 apparently operates, adverse possession starts: see especially Lord Evershed, and Romer LJ. The principle clearly accepted was that once the period covered by the last payment of rent expired, the tenant ceased to be regarded by the Limitation Acts as the tenant. This case was not cited to the county court judge. A similar assumption was made in Nicholson v England , under the then existing principles which section 10 (1) was designed to embody. Textbooks to the same effect include Cheshire's Modern Law of Real property, 9th ed. (1962), pp. 797, 798: Megarry & Wade's Textbook of the Law of Real Property, 3rd ed. (1966), p. 1010: and Preston & Newsom on Limitation of Actions, 3rd ed. (1953), p.89. I am not aware that the contrary view has been anywhere expressed ..... " Jessamine Investment Company v Schwartz [1978] QB 264, also in the Court of Appeal, was the case where the tenants Mr and Mrs Levy did not know their landlord Mrs David's address and had no means of paying the rent. As Sir John Pennycuick said in giving the leading judgment: " ..... indeed they were worried at their inability to do so. There is no suggestion that they withheld rent for any other reason." Nevertheless, it was held they had acquired the title by adverse possession against their mesne landlord (Mrs David) - but that nevertheless their statutory tenancy had continued against the freeholder. Stephenson LJ put the matter thus at page 276, and in order to understand references in his judgment it is necessary to know Mr Levy had died and his widow Mrs Levy had become Mrs Schwartz: "Decisions of this court prevent us from deciding that Mrs Schwartz was not, from the receipt of the last payment of rent by Mrs David, 'a person in whose favour the period of limitation can run,' and so not 'in adverse possession' within section 10 (1) of the Act of 1939: Hayward v Chaloner ..... and Moses v Lovegrove ." Mr Lancaster, for the Respondent, bravely sought to distinguish these cases on the grounds that in none of them was it held that the tenant believed himself still to be paying rent. In my judgment it is clear, from the passages that I have read from those judgments, that even if there had been such a belief it would have had no relevance. Mr Lancaster also referred us to Smirk v Lyndale Developments [1975] Ch 317. I do not derive any assistance from that case. In my judgment the Plaintiff has established his possessory title to this piece of land. I would allow the appeal and grant a declaration that the title of the Defendant to the land has been extinguished. LORD JUSTICE PILL: I agree. SIR ROGER PARKER: I also agree. Order: Appeal allowed with costs here and below. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII