St. Marylebone Property Company Ltd v Fairweather
| Jurisdiction | UK Non-devolved |
| Judge | Lord Radcliffe,Lord Denning,Lord Morris of Borth-y-Gest |
| Judgment Date | 16 April 1962 |
| Judgment citation (vLex) | [1962] UKHL J0416-1 |
| Date | 16 April 1962 |
| Court | House of Lords |
[1962] UKHL J0416-1
Lord Radcliffe
Lord Denning
Lord Morris of Borth-y-Gest
Lord Guest
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Fairweather against St. Marylebone Property Company Limited, that the Committee had heard Counsel, as well on Tuesday the 6th, as on Wednesday the 7th, Thursday the 8th, Monday the 12th and Tuesday the 13th, days of March last, upon the Petition and Appeal of Alastair Harold Fairweather, of 57 Elgin Avenue, W.9, in the County of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 28th of July 1961, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of the St. Marylebone Property Company Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered, and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 28th day of July 1961, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
This appeal raises a short but, possibly, important point with regard to the effect of the Real Property Limitation Acts. For the purpose of deciding it we were invited to consider a good deal of ancient learning and somewhat obscure pronouncements by sages of the past as to such subjects as the operation of mergers and surrenders and the "drowning" of estates. I do not at all complain of this, because the argument was in itself informative and, no doubt, such statutes as the Real Property Limitation Act, 1833, cannot be understood without reference to older forms and conceptions of conveyancing, many of which are now outmoded. Nevertheless I have come to the conclusion that the solution of the problem which we have before us depends upon nothing more than the inferences to be drawn from one or two principles about real property limitation that are themselves, I believe, incapable of being disputed at the present day.
Let me try to state our facts in skeleton form, for their details do not contribute anything that is material. What is in dispute between the Appellant and the Respondents is which of them is presently entitled to possession of part of a shed. The shed has been so constructed at some past date that its entrance is on a property known as No. 311 West End Lane, Hampstead, and its back wall on the adjoining property, No. 315; three-fourths of the length in 315, one-fourth in 311. The Respondents own the freehold of No. 315, and since they acquired it they have bought and taken a surrender of the only outstanding lease of that property, a lease for 99 years granted in 1894 to expire by effluxion of time on the 29th September, 1992.
The Appellant derives his rights to the shed from a sublease of the ground floor and shop of No. 311, of which he is the assignee and which runs for a term of 21 years from the 29th September, 1951. There is no dispute that that sublease included the shed in the premises demised, as appurtenant to the ground floor and shop, or that there passed under the demise squatter's rights to so much of the shed as was actually on the site of No. 315. The squatter's rights in question arose from adverse possession of that part of the shed by the Appellant's predecessors in title, who, since the year 1920, had maintained adverse possession without acknowledgment of title against the lessee of No. 315, who or whose successors in title have now surrendered their lease to the Respondents.
The Respondents' claim to possession can be stated in a few words. They are the fee simple owners of No. 315, including the site of the shed, so far as it is on that land; they have cleared off the lease which stood between them and their present right to possession; and, although the Appellant as squatter was entitled to hold possession against the lessee, he had held no adverse possession against them until by the surrender of the lease, which took place on the 14th December, 1959, their right to claim possession from him accrued for the first time. As they began their ejectment proceedings in August, 1960, their right is not statute barred.
The Appellant's position is a little more complicated to state. By 12 years adverse possession as against the lessee of No. 315 his predecessor, he says, acquired a squatter's rights in that part of the shed that was on the property and upon that event the lessee's title thereto became extinguished. That extinguishment would have occurred some time in the year 1932. Had the lease continued for its full term, until 1992, he would have been entitled by virtue of his rights against the lessee to continue to occupy the shed as squatter and the lessee, he says, cannot by surrendering the lease to the landlord put the landlord in a position to claim possession against him before the time when the lease would have expired. One branch of his argument is to say that the lessee had lost any right or title to possession of the shed, because his title was extinguished under section 34 of the Real Property Limitation Act, 1833, and he had nothing, therefore, in this respect that he could transfer to the landlord: the other branch involves the proposition that until 1992 the landlord could only claim a present right to possession through the lessee and, if the lessee himself had no right to possession against the squatter, the landlord claiming through him could be in no better position.
It is plain that the case on each side involves several deductive steps which are claimed to follow by irrefutable logic from their respective premises. After some hesitation between two inviting paths, I have come to the conclusion that the Appellant's arguments are vitiated by the fact that their reasoning contains an engaging but considerable fallacy. It seeks to revive in an elegant new form the rejected proposition that a squatter becomes in some way the successor to the title of the dispossessed owner.
It is necessary to start, I think, by recalling the principle that defines a squatter's rights. He is not at any stage of his possession a successor to the title of the man he has dispossessed. He comes in and remains in always by right of possession, which in due course becomes incapable of disturbance as time exhausts the one or more periods allowed by statute for successful intervention. His title, therefore, is never derived through but arises always in spite of the dispossessed owner. At one time during the 19th century it was thought that section 34 of the Act of 1833 had done more than this and effected a statutory transfer of title from dispossessed to dispossessor at the expiration of the limitation period. There were eminent authorities who spoke of the law in just these terms. But the decision of the Court of Appeal in 1892 in Tichborne v. Weir, 67 L.T. 735, put an end to this line of reasoning by holding that a squatter who dispossessed a lessee and "extinguished" his title by the requisite period of occupation did not become liable in covenant to the lessee's landlord by virtue of any privity of estate. The point was fully considered by the members of the Court, and they unanimously rejected the idea that the effect of the limitation statute was to make a "Parliamentary conveyance" of the dispossessed lessee's title or estate to the dispossessing squatter.
In my opinion this principle has been settled law since the date of that decision. It formed the basis of the later decision of the Divisional Court in Taylor v. Twinberrow [1930] 2 K.B. 16, in which it was most clearly explained by Scrutton, L.J. that it was a misunderstanding of the legal effect of 12 years adverse possession under the Limitation Acts to treat it as if it gave a title whereas its effect is "merely negative" and, where the possession had been against a tenant, its only operation was to bar his right to claim against the man in possession (see loc. cit. p. 23). I think that this statement needs only one qualification: a squatter does in the end get a title by his possession and the indirect operation of the Act and he can convey a fee simple.
If this principle is applied, as it must be, to the Appellant's situation, it appears that the adverse possession completed in 1932 against the lessee of No. 315 did not transfer to him either the lessee's term or his rights against or his obligations to the landlord who held the reversion. The appellant claims to be entitled to keep the landlord at bay until the expiration of the term by effluxion of time in 1992: but, if he is, it cannot be because he is the transferee or holder of the term which was granted to the lessee. He is in possession by his own right, so far as it is a right: and it is a right so far as the statutes of limitation which govern the matter prescribe both when the rights to dispossess him are to be treated as accruing and when, having accrued, they are thereafter to be treated as barred. In other words, a squatter has as much protection as but no more protection than the statutes allow: but he has not the...
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