Robert Smart v The Mayor and Burgesses of the London Borough of Lambeth
| Jurisdiction | England & Wales |
| Judge | Lord Justice Floyd,Lord Justice Underhill,Lord Justice Longmore |
| Judgment Date | 07 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1375 |
| Docket Number | Case No: B5 2012 3202 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 November 2013 |
[2013] EWCA Civ 1375
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
CHANCERY BUSINESS
HHJ DIGHT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Underhill
and
Lord Justice Floyd
Case No: B5 2012 3202
Simon Williams (instructed by Public Access) for the Appellant
Terence Gallivan (instructed by Devonshires) for the Respondent
The appellant, Robert Smart ("Mr Smart"), claims on this appeal that he and his predecessors were in adverse possession of a property known as 11 Lillieshall Road, London, SW4 0LP ("the property") for a continuous period of 12 years prior to 4 November 1993. On the basis of this period of adverse possession he claims to have extinguished the registered title of the respondents, the Mayor and Burgesses of the London Borough of Lambeth ("Lambeth"). HHJ Dight, sitting in the Central London County Court, rejected Mr Smart's claim by his judgment dated 30 August 2012, along with similar claims of other claimants occupying other properties in Lillieshall Road. The principal ground on which he did so was that Mr Smart's (and his co-claimants') occupation of the property had been with the express or implied permission of Lambeth, and therefore not adverse possession at all. From that decision, Mr Smart appeals with the permission of Arden LJ. There is no appeal by the other claimants.
Background
The property is a Georgian or Victorian cottage situated in what is now a conservation area in Clapham, South London. The freehold of the property was acquired by Lambeth pursuant to compulsory purchase powers in December 1971. The property, along with others in Lillieshall Road, was then in a relatively poor condition. Lambeth had decided, at some stage, to demolish the property as part of a redevelopment of the area. This did not happen immediately, and so, in the mid to late 1970s, squatters moved into the property. In about 1978, Alannah Currie, one of Mr Smart's predecssors in the property, entered the property and took possession of it.
By virtue of the Housing Act 1974, grants were available to housing associations for projects which included providing, improving, or repairing housing or residential accommodation, being " dwellings which are or are to be let or available for letting". By the late 1970s Lambeth were aware that there were squatters in the properties on Lillieshall Road, including the property. Lambeth decided on a policy which would involve re-housing rather than evicting the squatters if possible. To this end, Lambeth set about negotiating both with the squatters (and their subsequently formed housing co-operative) and with a housing association named Solon Housing Association ("Solon"). They had in mind a scheme whereby the houses in Lillieshall Road could be repaired and improved (using housing association grants) so that they could be used as a short-term source of housing accommodation for those who were then squatting in them ("the scheme"). The scheme which Lambeth intended to adopt is summarised thus at [24] in the judge's judgment:
"(i) Lambeth would enter into a licence with Solon;
(ii) Solon in turn would enter into agreements with a housing co-operative (which insofar as these houses are concerned came to be known as the Lillieshall Road Housing Co-operative Limited) to provide temporary accommodation for its members;
(iii) the squatters in the houses in Lillieshall Road would become members of the co-operative and they would be permitted to occupy various houses on the road on a temporary basis;
(iv) Solon would obtain small grants from the Housing Corporation under the Housing Act (and therefore called mini-HAGs) to carry out repairs to the houses;
(v) the grant monies would be passed to the co-operative to administer in putting the houses occupied by its members into habitable condition."
Lillieshall Road Housing Co-operative ("LRHC") was in due course formed under the Industrial and Provident Societies Act 1965. It is common ground that LRHC has legal personality. Its rules were in due course resolved to be amended to restrict membership to residents of Lambeth registered on its housing waiting list.
The grants from the Housing Corporation were not available directly to Lambeth to carry out the work, but only to housing associations. The interposition of Solon was necessary to enable applications for grants to be made. If it were otherwise, Lambeth could have obtained the grants and licensed LRHC and other co-operatives directly.
The judge found that the purpose of the scheme was to provide short-term accommodation in a suitable state of repair to people who were initially squatters. Regularisation of the occupation of the property was, as a result of the statute and Lambeth's policy, a necessary part of the scheme. He also held that squatters in the houses in Lillieshall Road (who did not at this stage include Mr Smart) became aware of the scheme and, with that in mind, were actively considering forming a housing co-operative through which they could negotiate with Lambeth over the future occupation of the houses. The judge also found that the claimants and their predecessors knew that the obtaining of repair grants for the houses and control of occupation of those houses by Lambeth were two sides of the same coin.
In September 1980 the secretary of LRHC wrote to the chairman of Lambeth's housing committee indicating that LRHC would be prepared to negotiate a suitable arrangement with Lambeth to cover the houses in Lillieshall Road including the property. In a document entitled "LRHC Statement of Intent", the treasurer and secretary of LRHC wrote that Solon had agreed to act as management agents for LRHC when applications for Housing Corporation grant (so-called "mini-HAGs") were made.
On 16 October 1980 there was a meeting between LRHC and Lambeth. The judge found that it was agreed in principle at that meeting that there should be a scheme pursuant to which, with the co-operation of Solon, the houses could be occupied by members of LRHC (so long as they were on Lambeth's housing list), Solon would be appointed to manage the properties in Lillieshall Road, and Lambeth would grant a licence of up to five years depending on the life expectancy of the property in question. The judge also held that it was implicit in the scheme, well understood by all the claimants and their predecessors, that the existing occupiers of houses in Lillieshall Road would, on joining LRHC, be permitted to stay in their houses. The meeting was attended by Mr Smart's predecessor in the property, Alannah Currie. A letter written by LRHC in November 1980 discusses delay in the grant of the "Council licence". A letter from LRHC to Lambeth later in November 1980 expressed the hope that the licence would be granted in the near future. The judge concluded that LRHC were dealing with Lambeth on the understanding that they would be part of the implementation of the scheme which had already been discussed with Lambeth, and that the members of the co-operative would be permitted to stay in the houses on a temporary basis on condition that they participated in the scheme.
Solon wasted no time in making a mini-HAG application to the Housing Corporation. In its application it explained that " Property is licensed by Lambeth to user groups, via Solon as an intermediary…" and that LRHC were negotiating a licence with Lambeth which would be issued subject to the availability of mini-HAG funding.
Subsequently, in January 1981, Lambeth's Urgency Sub-Committee formally approved the proposal for the squatters, through LRHC, to remain in the properties to assist in carrying out repairs with the support of mini-HAGs obtained with the assistance of Solon. Thereafter Lambeth wrote to Solon explaining that a licence would be granted to Solon expiring in January 1986. The judge explained at [42] of the judgment:
"The later records show that the recommendations in this briefing were approved and the council resolved to enter into the scheme which had been outlined. The subsequent documentary evidence satisfies me, on the balance of probabilities, that the policy and the scheme were then implemented and whether directly or indirectly the squatters were granted permission by Lambeth to occupy their houses in accordance with the scheme."
By March 1981 LRHC had started to collect rent from occupiers to be paid into a common fund to be used for essential repairs. The judge found that these sums were paid by the occupiers in respect of their occupation of the land, and not merely for membership of LRHC. He said this at [45] of the judgment:
"At that point in time, therefore, the occupiers of the houses, including the occupiers of numbers 10, 11 and 19, had begun to pay fees to the co-operative in respect of their occupation of the houses. The co-operative expressly recognised that Lambeth was the owner of the houses and that it was entitled to control the occupation of the houses in the street, which they did by delegating the day to day administration of the occupation and funding and carrying out of repairs to the co-operative and Solon."
By June 1981 Solon had received mini-HAG funds which, after consultation with Lambeth, it agreed to spend on the Lillieshall Road properties. In September 1981 Lambeth wrote to Solon enclosing a draft licence which it proposed to use to license short life properties to entities such as Solon. The draft was obviously still the...
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