Ramnarace v Lutchman
| Jurisdiction | UK Non-devolved |
| Judge | Lord Millett |
| Judgment Date | 21 May 2001 |
| Neutral Citation | [2001] UKPC 25 |
| Court | Privy Council |
| Docket Number | Appeal No. 8 of 2000 |
| Date | 21 May 2001 |
[2001] UKPC 25
Present at the hearing:-
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Millett
Lord Scott of Foscote
Privy Council
[Delivered by Lord Millett]
In July 1974 with the consent of her uncle and aunt Angad and Kushmee Lutchman the appellant entered into occupation of a piece of land which they owned at Orange Field Road, Carapichaima, in central Trinidad. The land is described in the statement of claim as comprising 2½ lots more or less and measuring 75 feet on each of its northern and southern boundaries and 200 feet on each of its eastern and western boundaries and bounded on the north by Orange Field Road, on the south by lands occupied by Abdool, on the east by lands of Rampersad and on the west by lands of Mr and Mrs Lutchman. It became clear in the course of the trial that the reference to 2½ lots in the statement of claim is an error: the area so described comprises four lots. The land was unfenced, but identifiable on the ground.
The appellant had been living with her husband and three children rent-free in a house on another parcel of land a short distance away which belonged to her brother-in-law. He asked the appellant to leave as he needed the house, and she approached her uncle and aunt in search of somewhere to live. Her uncle told her that she could live on the land or as much of it as she wanted until she could afford to buy it. The appellant went into occupation with her family. She built a three-bedroomed wooden house on the highest part of the land, and has lived there ever since without paying any rent or other sums for her occupation. Her uncle died in 1977, her aunt in 1988. In 1990 she demolished the wooden house and built a concrete house in its place. She also enclosed an area of 2½ lots round the house ("the disputed land") by erecting a chain link fence around it. The appellant accepts that she had not then been in possession of the land for sufficiently long to have acquired a possessory title, and that thereafter she ceased to occupy the 1½ lots. She has remained in possession of the disputed land and claims to have acquired a possessory title to it.
The respondent, who is Mr and Mrs Lutchman's son, has periodically challenged the appellant's right to live on the land. In 1978 and again in 1985, on both occasions while his mother was alive, he served what purported to be a notice to quit on the appellant, though he took no steps to enforce either of them. The Court of Appeal criticised the judge for making no finding in regard to the service of these notices. Their Lordships consider the criticism to be misplaced. By themselves the notices were not effective to stop time running in favour of the appellant, and as will appear they were not relevant to anything which the judge had to decide.
The appellant remained in undisturbed possession of the whole of the land until October 1990, when she erected the chain link fence round the disputed land. The respondent thereupon used a wrecker to pull down the fence. In September 1991 the respondent cut down the appellant's iron gate with a cutting torch.
The appellant brought the present proceedings in November 1990. Time had not yet run in her favour, and she was unable to claim a possessory title. By her writ she sought a declaration that she was a tenant of the disputed land, damages for trespass and injunctive relief. By the time she served her statement of claim on 20th November 1991, however, time had run in her favour, and she claimed a declaration that the title of the respondent and his predecessors in title to the disputed land had been extinguished. By his defence and counterclaim served on 24th December 1991 the respondent disputed the appellant's claim and counterclaimed for a declaration that he was the owner of the disputed land and an order for possession. By her reply the appellant contended that the respondent's title (if any) to the disputed land had been extinguished before 24th December 1991.
The appellant's claim to a possessory title in the statement of claim may have been liable to be struck out as a departure from the relief claimed in the writ, but this is of no moment. The respondent did nothing to stop time running until he served his counterclaim for possession on 24th December 1991. The issue which falls to be decided thus arises, not in the action, but on the counterclaim.
The judge found that the appellant entered into occupation of the four lots as tenant at will in July 1974; that by virtue of section 8 of the Real Property Limitation Ordinance 1940 ("the Ordinance") the tenancy determined one year later at the end of July 1975; that she had remained in exclusive possession without interruption of the four lots until October 1990 and of the disputed land thereafter; and that by July 1991 the respondent's title to the disputed land was extinguished by the operation of section 3 of the Ordinance.
The Court of Appeal allowed the respondent's appeal. It did so on the ground that the appellant had entered into occupation originally as licensee and not as tenant at will, and that her licence had been determined at the earliest by the service of notice to quit by the respondent in 1985 and at the latest by the death of her aunt in 1988. She had thus not been in adverse possession of the land for the period required to extinguish the respondent's title. In holding the appellant to have been in occupation as licensee, the Court of Appeal relied on the dictum of Denning LJ in Facchini v Bryson (1952) 1 TLR 1386 at p. 1389 where he said:
"In all the cases where an occupier has been held to be a licensee there has been something in the circumstances such as a family arrangement, an act of friendship or generosity, or suchlike, to negative any intention to create a tenancy."
This statement was accepted as correct by Scarman LJ in Heslop v Burns (1974) 1 WLR 1241 at p. 1252.
The Ordinance substantially reproduces the provisions of the English Real Property Act, 1833. The limitation period for an action to recover land is 16 years, and the period starts when the right to bring the action first accrues to the person bringing the action or someone through whom he claims: section 3 of the Ordinance (corresponding to section 2 of the 1833 Act). Neither the Ordinance nor the 1833 Act contains any reference to the concept of adverse possession which became enshrined in the English statute by section 10(1) of the Limitation Act 1939, but this was no more than a statutory enactment of the case law on the earlier English Limitation Acts (see Moses v Lovegrove [1952] 2 QB 533, 539 per Sir Raymond Evershed MR). In these circumstances their Lordships do not doubt that the concept is incorporated into the Ordinance also.
Generally speaking, adverse possession is possession which is inconsistent with and in denial of the title of the true owner. Possession is not normally adverse if it is enjoyed by a lawful title or with the consent of the true owner. Section 8 of the Ordinance, however, (reproducing section 7 of the 1833...
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...between Maurice Defreitas and the Defendant was that of owner and licensee. Counsel realized that the Privy Council case ofRamnarace v Lutchman on which the Defendant relies stood in his way and in effect submitted that there are factual differences between that case and the one with which ......
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