Lambeth London Borough Council v Blackburn

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE PILL,LADY JUSTICE ARDEN,LORD JUSTICE CLARKE,LORD JUSTICE LAWS,LORD JUSTICE JUDGE
Judgment Date14 Jun 2001
Neutral Citation[2001] EWCA Civ 912,[2001] EWCA Civ 668
Docket NumberCase No: B2/2001/0565,B2/2001/0565

[2001] EWCA Civ 668

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM LAMBETH COUNTY COURT

(His Honour Judge Cox)

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Pill

Lady Justice Arden

B2/2001/0565

London Borough of Lambeth
Claimant/Respondent
and
Jack Blackburn
Defendant/Applicant

MISS NICOLE SANDELLS (Instructed by Messrs Thomas & Co, 21–22 Camberwell Green, London SE5 7AA) appeared on behalf of the Applicant.

The Respondent did not appear and was not represented.

Tuesday, 20th April 2001

LORD JUSTICE PILL
1

Arden LJ will give the first judgment.

LADY JUSTICE ARDEN
2

This is a renewed application by the defendant for permission to appeal from the order of His Honour Judge Cox, sitting the Lambeth County Court, dated 19th February 2001. The judge ordered that the defendant should give up possession of Flat 6, Granville House, Rushcroft Road, London S12. In addition, the applicant seeks an extension of time for making this application as the application was made one day late. I can say immediately that I have no difficulty with that application, particularly on the evidence shown. The application for permission to appeal was refused on paper by Simon Brown LJ.

3

I now turn to the facts as found by the judge; and I will deal with them quite briefly.

4

Flat 6 is in a block of flats, and it was damaged by a fire and left empty by its owner, Lambeth Borough Council. The judge found that the defendant took possession in February 1988. That is over 12 years before the commencement of the current proceedings. The judge's further findings were as follows.

5

The judge accepted, without any reservation, that the defendant had moved into the premises in February 1988 and that he had de facto occupation of the premises for the entirety of the 12 year period with which the court was concerned. He also found that the defendant had made various improvements to the property. Indeed, it appears that the property was in a very bad condition indeed after it was damaged by fire.

6

The judge turned to the question of the intention of the defendant. He said that the defendant when he moved in regarded the flat as a temporary home, and he knew that one day he was going to be evicted but that he had no intention of moving out until he was evicted. The judge also held that it was not until after the proceedings were served on him that he sought legal advice and realised the present position. He referred to the fact that in his evidence the defendant had said that if in the 12 year period somebody had asked him to pay rent, he would have said "Great". The judge also found that one of the first things that the defendant did on arriving at the premises and occupying it was to install his own Yale lock on the front door.

7

The judge then turned to the authorities, particularly to Powell v McFarlane (1977) 38 P&CR 471 in which Slade J had said that the person seeking to establish adverse possession had to show an intention of excluding the owner as well as other people. He also said in his judgment that, where the person seeking to establish adverse possession was a trespasser, clear and affirmative evidence was required before the court could be satisfied that he had had the requisite intention to possess and that, accordingly, if his acts were open to more than one interpretation and he had not made it perfectly plain to the world at large by his actions or words that he intended to exclude the owner as best he could, the court would not treat him as having the requisite intention.

8

Having cited this authority, the judge held that in the light of the evidence of the defendant it was clear that the defendant did not regard himself (during at least the beginning if not the whole of the relevant period) as somebody who was entitled to exclude the lawful owner of the premises. He pointed out that if the landlord had come along and endeavoured to treat with him in order to regularise his position, the defendant would have cooperated with the landlord. In those circumstances, the judge held that adverse possession was not established.

9

The essential ground of appeal, as appears from the grounds attached to the application, is that the judge did not correctly apply the law as laid down in Buckinghamshire County Council v Moran 1990 Ch at 623. In that judgment Slade LJ refers to the animus possidendi which is required in cases of adverse possession. At 641 E, he cited a passage from his own judgment in Powell v McFarlane which counsel had accepted as correct. That said:

"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 process of the law will allow."

10

Then at 643 B his Lordship dealt with an argument that there were dicta in the authorities which could be read as suggesting that there had to be also an intention to own the land. His Lordship referred to earlier authorities such as Littledale v Liverpool College [1900] 1 Ch 19. Slade LJ concluded at 643 E that he agreed 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."

11

Nourse LJ gave a separate judgment, but he agreed with Slade LJ and, likewise, Butler-Sloss LJ agreed with both judgments.

12

We have enquired of counsel whether there are any more recent authorities which bear on the question of the intention to be shown by a squatter who takes possession or who goes into occupation of a flat or other property. Counsel is aware of some recent authorities but says that they do not assist on this particular point.

13

In this case, it seems to me that there is a reasonable prospect of success in arguing on appeal that all the defendant had to do was to prove an intention to exclude the landlord and all others, not an intention that he should own the property from the start. In this connection, I note that in Ocean Estates Ltd v Pinder [1969] 2 AC 19, 24 the Privy Council states as follows:

"The learned judge also considered that there was a third ground upon which the claim" [that is the claim to adverse possession in that case] "should be rejected, viz., that until 1947 the defendant's entry upon the land was not made with intent to oust the true owner. This was based upon an admission of the defendant at the trial when he said:

`I would have paid rent on the land in dispute if anyone had come along. Nobody showed up. I didn't try very had 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.'

Their Lordships do not consider that an admission of this kind, which any candid squatter hoping in due course to acquire possessory title would be almost bound to make, indicates an absence of the animus possidendi necessary to constitute adverse possession. But the other grounds relied on by the judge are valid and in themselves sufficient to defeat the defendant's claim for a possessory title."

14

So it appears from this authority, which is of course only persuasive authority, and the point was not one which was decisive in the case before the Privy Council, that the Privy Council were of the view that if a person who was in occupation of land considered during the period in which he was occupying the property (and before the period of adverse possession had come to an end) that he would pay rent or be subject to eviction if the true owner came along, it would not necessarily mean that the occupier did not have the necessary intention to exclude the owner. On the basis of that authority, and I suspect that there are others too, there seems to me to be in this case a tenable argument that the statements made by the defendant in his evidence did not exclude the requisite intention on his part.

15

I am, of course, mindful that permission to appeal was refused on paper and that in the course of refusing permission to appeal Simon Brown LJ stated that:

"It is one thing to lock the door of the flat to guard it and its contents against the depredations of ill-willed individuals; quite another to suggest that by so doing the applicant was manifesting an intention to possess as against the owner."

16

It may be that that argument is one which is pursued by the respondent. But I note from the transcript of the defendant's evidence that in relation to the Yale lock the defendant states that he had to put on a proper Yale lock so that he could get in and out, and he says:

"before that, obviously if I hadn't put a lock on, I mean, I understood someone could just come and throw me out."

17

I have not drawn further citations from the evidence -there may be other relevant passages as well -but it seems to me, on the basis of what I have read, that there is a tenable argument also that there was sufficient evidence of intention to exclude the owner and the rest of the world by putting the lock on to the premises.

18

In those circumstances I would, as I have already said, extend time for this application and grant permission to appeal.

LORD JUSTICE PILL
19

I agree.

Order: Application allowed. Costs to be costs in the appeal. Stay of execution granted. Appeal to be heard with expedition, with a time estimate of three hours, before a three judge court.

[2001] EWCA Civ 912

IN THE SUPREME COURT...

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