Implied Consents in Adverse Possession_ C Shea - 1 PROPERTY BAR by dfsiopmhy6


									                                PROPERTY BAR ASSOCIATION

                                        2009 CONFERENCE



1. In the context of claims for possession of land, in order to start time running under the
   Limitation Act 1980 or the Land Registration Act 2002 the squatter’s possession must be
   adverse to the paper title owner’s interest. At any time when an occupier has permission from
   the landowner to occupy land, the 12 year limitation period will not run.

2. It is possible for such permission to be express or implied, and whether or not permission has
   been granted is a question of fact. When it comes to implied permission, the application of
   this requirement can cause difficulties and has I suggest led to some decisions which are hard
   to sustain. Against the background of those difficulties the courts now coming to emphasise
   that the permission albeit implied must be actual permission; and such actual permission
   must be found as a fact: J Alston & Sons Limited v BOCM Pauls Limited [2008] EWHC 3310
   (Ch), 28 November 2008, at [51] and [56].

3. The background to the development of the law in this respect starts with London Borough of
   Lambeth v Rumbelow (unreported, 25 January 2001). The squatter in that case moved into a
   flat belonging to the council in 1984. The Council needing to effect repairs issued possession
   proceedings in 1986 which the squatter defended on the basis he occupied under a licence,
   the flat being a licensed squat. As a result the possession proceedings were withdrawn. Years
   later, the squatter applied to be registered with possessory title. The Council defended the
   application on the basis that the proceedings having been withdrawn following the allegation
   of licence, the squatter must have continued in possession with the permission of the Council,
   albeit implied. Etherton J stated that the applicable principles were as follows:

        “... in order to establish permission in the circumstances of any case, two
       matters must be established. First there must have been some overt act by the
       landowner or some demonstrable circumstances from which the inference can be
       drawn that permission was in fact given. Secondly, a reasonable person would
       have appreciated that the user was with the permission of the landowner.”

4. As to the first element, the judge relied on the fact that in the past the premises had been a
   licensed squat properly so called, and that the claim for possession had been defended on the
   basis that there was a licence to occupy. As a result of the defence the proceedings had been
   discontinued. These circumstances were sufficient to found an inference that permission had
   been granted. The judge held that the second element of the test was also satisfied, since a
   reasonable person would conclude that in withdrawing the proceedings the council had
   accepted the truth of the facts founding the defence.

5. It has recently been observed by at least one Adjudicator that the second part of the test
   arguably adds nothing. It is the function of the tribunal to determine whether there has been
   “some overt act by the landowner or some demonstrable circumstances from which the
   inference can be drawn that permission was in fact given”. Once this has been determined by
   the Adjudicator, on the assumption that he or she is a reasonable person, it is difficult to see
   how the second element cannot be satisfied. The reasonable person must be someone in
   possession of all the material facts otherwise any inference he drew (or did not draw) would
   be flawed. In possession of all the material facts, he is in no different position form the
   tribunal in drawing the inference. It follows that if the tribunal is content to draw the
   inference, the second element will by the same token be satisfied.

6. It is important to distinguish between acquiescence and permission, whether express or
   implied. Further if permission is to be implied it must be a necessary implication, that is to
   say, an implication which arises necessarily on the particular facts of the case. In Hicks
   Developments Limited v Chaplin [2007] EWHC 141 (Ch) the disputed land was owned by a
   development company but had been planted and maintained by the squatter to what was said
   to be a “rustic standard”. At one point the development company and the squatter agreed that

   a boundary hedge should be planted to separate the disputed land from the reminder of the
   land intended for residential development. It was argued that the agreement to plant the
   hedge was evidence of an implied licence. Briggs J rejected this contention and found in
   effect that the purpose of the hedge was to provide a barrier between the rustic land and the
   land intended for development. The motivation for the agreement was cosmetic and the
   discussions did not reference nor entail even impliedly              questions of ownership or

7. Briggs J approved the Rumbelow test, and added important provisos and explanatory

       “provided it is borne in mind that there is a real difference between permission
       on the one hand, and mere non-objection or acquiescence on the other. Adverse
       possession is commonly, indeed typically, achieved during periods of non-
       objection or acquiescence by the land owner. Using the language of Etherton J
       approved in the Batsford Estates case, the question is whether “permission was
       in fact given”, either expressly or by necessary implication. As with other cases
       where the question is whether something should be implied, it is not enough that
       the overt acts or demonstrable circumstances are consistent with there having
       been permission. They must be probative of it.”.

8. A classic case where permission is often implied is where the parties are negotiating for the
   grant of an interest in the land. In Bath & North East Somerset District Council v Nicholson,
   the squatter refurbished and occupied vacant property belonging to the Council. Negotiations
   for the grant of a lease commenced in 1983 and continued until 2000 and in 1984 the Council
   at the squatter’s request performed various works to the property. In 2002 the Council sought
   possession. At first instance it was held by the Deputy Judge that the test for factual
   possession was met, in that the squatter had occupied as an occupying owner would. The
   Judge referred to Rumbelow, and found that the negotiations for a lease necessitated the
   implication of a licence.

                 “Where a person is in possession of land pending negotiation for the grant
                 of an interest in that land, it is a natural inference to draw that the owner
                 permits him to remain there, at least until the negotiations have irretrievably
                 broken down. In the present case, that inference is reinforced by the

              Council's actions in facilitating occupation by installing the drain, providing
              the Elsan closet, and also by authorising the payment of a grant for
              insulation works.”

9. A second case is Colin Dawson Windows Ltd v King’s Lynn and West Norfolk Borough
   Council and Howard . In that case the squatter was negotiating with the owner to buy a piece
   of land from which he the squatter had been operating a car parking business.                The
   negotiations took place over a number of years, ending with an offer made by the squatter in
   August 1991 to which the owner made no response. In deciding that an implied licence had
   arisen, Rix LJ, while noting that the Bath & North Somerset District Council v Nicholson
   was a case which was “stronger on the facts”, stated that [37G]:

              “… the essence of [the Bath case] was that it was natural to draw an
              inference of permission where a person is in possession pending
              negotiations for the grant of an interest in land, a proposition with
              which I would respectfully agree.”

10. The limits of the application of the principle to this kind of case were set out in Clowes
   Developments (UK) Ltd v Walters, in which the owner relied on sending surveyors to the
   land on three different occasions, the surveyors themselves being ignorant of the past
   dealings between the parties. Hart J said, on the facts of this case, it would be a strained
   application of the doctrine of implied licence.

11. Although these cases come close to suggesting that there is a general principle that where
   parties are negotiating for the grant of an interest in land then occupation must be pursuant to
   an implied licence, in fact each case is fact dependent, as was emphasised by Neuberger LJ in
   London Borough of Tower Hamlets v Barrett. In that case, the squatters were tenants of a
   public house. Negotiations had been previously been conducted between the squatters’
   predecessors in title as freeholders of the land now demised to the squatters, and the
   freeholder of the disputed land, to acquire the disputed land. The paper title owners of the
   disputed land claimed that those negotiations founded an implied licence to occupy the

   disputed land. However, during these negotiations, the paper title owner had no idea that the
   squatter was at that time in occupation of the disputed land. Neuberger LJ stated that

          “[66] The court will readily infer the grant of a licence during negotiations for the
          purchase or letting of land, where the negotiating purchaser or tenant is in occupation
          of the land concerned. Support for that proposition may be found in Colin Dawson
          Windows Ltd v King's Lynn Borough Council [2005] EWCA Civ 09, at paragraphs 33
          and following. However, the insurmountable problem for the Council's case on this
          issue, as I see it, is that there is no evidence to suggest that the Council knew, or even
          suspected, that the area was occupied by the Barretts.

          [67] Although Colin Dawson's case shows that the Court is, understandably, very
          ready to infer the grant of a licence, to a prospective purchaser or tenant, to occupy
          during negotiations, whether the inference can be made in a particular case must
          depend on the application of normal legal principles to the facts of that case. The
          inference of a licence involves some sort of implied grant, or at least an indulgence,
          on the part of the licensor. I cannot accept that a grant, or even an indulgence,
          involving an implied permission, to occupy, can properly be inferred where, as here,
          the supposed licensor is unaware of the occupation of the supposed licensee.

          [68] The conclusion that there was an implied licence in this case as a result of the
          negotiations up to 1985 would be remarkable. It would mean that a licence to occupy
          should be inferred from negotiations, in circumstances where the alleged licensor was
          unaware of the occupation of the alleged licensee, and where the alleged licensee was
          not aware of the negotiations said to give rise to the licence. Legal fictions have their
          place, but this would be legal fairyland.”

12. This approach seems to me with respect to be right and to be part of a broader requirement
   that where a squatter is in occupation whilst negotiations for the grant of an interest are being
   conducted a licence can only be implied if there is a nexus between the occupation and the
   licence. That is why if the owner was ignorant of the actual occupation of the squatter the
   negotiations cannot absent more found an implied licence. The negotiations may of course
   constitute an acknowledgement of title (which is a different subject) but if they are to found
   an implied licence the owner must be taken on the facts to know of that which he is
   permitting by conducting the negotiations. In my view the application of this principle to this
   category of case is much more precarious than the authorities would suggest, and is very fact

13. A second group of cases concerns the situation where an owner threatens to take action to
   eject an occupier, but then reconsiders and changes his stance. Batsford Estates (1983)
   Company Ltd v Taylor, concerned a farmhouse joint tenants, and previous generations of
   their family, had occupied a farmhouse under a succession of tenancies. There came a point
   when the farmhouse was eventually left empty and the freeholder served notices to quit on
   the joint tenants, whereupon they moved back into the farmhouse asserting occupational
   rights under a tenancy. The freeholder chose not to take any further action. Upon a claim by
   the sole surviving tenant to have acquired title by adverse possession, Sir Martin Nourse
   found that he in fact occupied under an implied licence under the principles in London
   Borough of Lambeth v Rumbelow. He stated that, although Bath & North Somerset District
   Council v Nicholson and Colin Dawson Windows Ltd v King’s Lynn and West Norfolk
   Borough Council and Howard were He decided that the Bath & North Somerset District
   Council and the Colin Dawson cases were “examples of the more familiar kind of case where
   the occupation of the person claiming a possessory title is in the course, or as a result, of
   negotiations for his acquisition of the land” but that “the test is a general one which is
   capable of applying in a case such as the present”. He found that contrary to the submission
   of the squatter permission did not have to be communicated verbally or non verbally, and that
   on the facts of this case an implied licence had been established.

14. This case has been the subject of notable disquiet, expressed openly by a number of
   tribunals. It seems to stretch the notion of implication too far and is generally regarded as the
   high point of the cases decided in favour of the squatter. It is difficult to see how these facts
   justify crossing the line from acquiescence into implied permission; how they meet the test of
   necessity emphasised, rightly in my opinion, by Briggs J in Hicks Development. Briggs J
   required that the evidence on which the inference is to be drawn is probative of an implied
   license not merely consistent with it. Another way of expressing the test is that the evidence
   must unequivocally point to the implication of a licence. Query whether facts which might be
   explained by reference to a licence, but which could be explained by reference to other
   matters, including mere acquiescence, meet the unequivocality requirement.

15. The application of the Rumbelow test was further considered in the case of J Alston & Sons
   Limited v BOCM Pauls Limited [2008] EWHC 3310 (Ch), 28 November 2008. HHJ Hazel
   Marshall QC, sitting as a deputy High Court judge said, at [115], that “the implied licence
   has to be real” and, at [116], that “the finding of an implied licence in fact must be fully
   justified on the basis of evidence of substance”. So the emphasis in the later cases is on the
   actual, factual existence of a license to be inferred necessarily from the factual matrix.

16. In that case the squatter was a famer who had farmed the disputed land under licence from its
   previous owner. That licence had determined. After which the squatter continued to use the
   land in exactly the same way as he had done before with the benefit of the licence. HHJ
   Hazel Marshall, sitting as a Deputy Judge of the High Court, rejected the submission that the
   continuing occupation was referable to an implied licence. She took the opportunity to
   provide a comprehensive analysis of the earlier cases as follows:

       “[137] In all the cases, (Lambeth, Bath, Dawson, and Batsford) where such an
       implied licence has been found, there has been one of two situations. Either the
       occupation was pending negotiation of the grant of an interest in the land (Bath
       and Dawson) in which drawing such an inference is relatively easy, or the
       history of the matter has shown that there was a specific intention on the part of
       the owner to seek to eject the occupier, followed by an express reconsideration
       and change of stance, with a good deal of communication going on between the
       parties, from which the obvious inference, obvious to anyone who knew the
       facts, was that the owner had made an express decision to permit the occupation,
       and the occupation was continuing for that reason, thus amounting to the giving
       of permission by implication.
       [138]     In this case, however, neither situation is present. Plainly, the mere fact
       that Mr Alston continued farming without objection or comment from Pauls is
       nothing but acquiescence by them. To find that that gave rise to an implied
       licence is to fly in the face of the basic proposition that, at law, the actual
       permission granted in 1974 terminated. It would also mean that in just about any
       case where permission to occupy expired, the continued occupation of the
       possessor would be taken to be by implied licence of the owner, such that time
       did not run. This is contrary to the established principles of law.
       [139] Beyond that, I simply do not find that the acts invoked by Mr McGhee
       are sufficient to bear the weight he seeks to place on them, and to give rise to
       any inference that a permission had impliedly, but without communication,
       been actually granted. The evidence is simply insufficient to be probative of
       this. It may be consistent with such a possibility, but that is not enough.”

17. In conclusion in order to determine whether an implied licence exists so as to
   prevent the squatter’s occupation being adverse
           (1) Start with the Rumbelow test, bearing in mind the second element
              probably adds nothing;
           (2) Remember that what is sought, although implied, is an actual licence,
              based on the facts, not any species of imputed licence;
           (3) Bear in mind that the evidence must be probative of an implied licence
              and not merely consistent with it. In other words it must be necessarily
              implied, not just capable of being implied. It must be the only
              explanation, not just an explanation which fits the facts.
           (4) In cases involving occupation pending negotiations for the grant of an
              interest the occupation must be connected in some factual way to the
           (5) Carefully distinguish implied licence from mere acquiescence. Standing
              by will not do. There has to be something about the facts from which a
              licence must necessarily be implied.

18. The Calgarth [1926] 1 P 93, at 110, contains Scrutton J’s well-known dictum that

    “when you invite a person into your house to use the staircase, you do not
   invite him to slide down the banisters, your invite him to use the staircase in
   the ordinary way in which it is used”.

19. This was endorsed by the House of Lords in Hillen and Pettigrew v. I.C.I. (Alkali)
   Ltd [1936] A.C. 65, at 69 – 70. Lord Atkin (in the context of the scope of the duty
   owed by occupiers of land to licencees) stated that:

       "… this duty to an invitee only extends so long as and so far as the
       invitee is making what can reasonably be contemplated as an ordinary
       and reasonable use of the premises by the invitee for the purposes for
       which he has been invited. He is not invited to use any part of the
       premises for purposes which he knows are wrongfully dangerous and
       constitute an improper use … So far as he sets foot on so much of the
       premises as lie outside the invitation or uses them for purposes which
       are alien to the invitation he is not an invitee but a trespasser, and his
       rights must be determined accordingly.”

20. The above observations are obviously relevant in adverse possession cases. When
   can a paper owner rely on the fact of permission as a complete defence to an adverse
   possession claim?

21. The mere fact that a squatter has a pre-existing right to use land does not bar his
   right to claim title by adverse possession, though it may make such a claim harder to
   get off the ground. The usual case is one in which the claimant squatter has an
   easement over the land which he is claiming.

The Easement Cases
22. The usual authority cited in this context is Littledale v Liverpool College [1900] 1
   Ch 19. The squatters claimed a strip of land over which they had a right of way.
   They gated, and locked, each end of the strip. One end of the strip led to land which
   they in fact owned, and the gate at that end was located on their land. The other end
   of the strip led to a public highway. The Court of Appeal held that these acts (which
   one might have thought quite compelling) were in fact equivocal. Sir FH Jeune
   stated (at 26) that

       'The erection of the gates and the locking and keeping them locked
       would appear referable rather to the exercise of the undoubted right of

       way than to acts of user such as to constitute dispossession. In the same
       way the grazing, although to a less extent, admits in my view of
       explanation. It was necessary to keep down the grass in order to make
       the right of way practically exercisable by the person entitled to it. Of
       course, he would not like the grass to grow to such a length that there
       remained no path over it.'

23. As an aside, there is some doubt as to whether Littledale would still be decided the
   same way. In the generally very useful decision of Purbrick v London Borough of
   Hackney [2003] EWHC 1871 (Ch), Neuberger J warned that reliance upon
   Littledale could be “dangerous” except in cases which were “very close” factually,
   and he expressed “some doubt” as to the “soundness” of the decision. He noted that
   the Court of Appeal in Littledale was far from unanimously enthusiastic about the
   conclusion reached, and also the comments of Lord Browne-Wilkinson in Pye v
   Graham which cast doubt on the correctness of the decision.

24. Nonetheless, a Littledale-style argument has assisted paper owners on occasion. The
   squatter failed on the basis of it in George Wimpey & Co Ltd v Sohn [1967] Ch 487.
   The Defendants, owners of a hotel, had an easement to use land between the hotel
   and a road as a garden. This land was fenced off from the road. This act was
   equivocal against the background of the pre-existing right to use the land as a
   garden. Harman LJ stated (at 506) that

       “The question here is whether what has been done is enough to exclude
       the freeholder who has a title on paper. Now it seems to me that the
       only act which has any weight at all is the maintenance of the fences
       along the road, and the question is whether that fencing must of
       necessity have been intended to exclude the true owner or whether, as
       the judge found, it is equivocal and can be explained by the desire of the
       owners of the Montpelier Hotel or its component parts to keep the
       public from straying from the road into the gardens backing on the
       hotel. In other respects nothing was done inconsistent with the view that
       the Montpelier Hotel owners thought of themselves as merely
       exercising their rights to use the garden. It seems to me that this is
       precisely how they did regard themselves and that is shown by the fact
       that right up to 1960 when the contract was in preparation it never
       occurred to the defendants or their predecessors that they had more to
       sell than the hotel building and easements over the garden Where an act
       done is equivocal the intention with which it is done is of importance.'

25. Russell LJ stated (at 512)

       'I am unable to hold that it is established that the occupation by the
       predecessors of the vendors of the blue land was animo possidendi in
       the sense of owning the land as distinct from exercising an easement to
       use it as a garden ... It must, of course, be a very exceptional case in
       which enclosure of the order indicated will not demonstrate the relevant
       adverse possession required for a possessory title. But where there is an
       easement as against the landowner to use the land as a garden, it seems
       to me that a very clear case must be made to establish possession
       adverse to the landowner so long as the land continues to be used as a

26. Most clearly on the other side of the line is a case like Seddon v Smith (1877) 36 LT
   168. In that case, the lord of the manor owned some land which was subject to a
   right of way leading to the land of the squatter. Over many years, the squatters had
   dug up and cultivated 75% of the land, though left some if it untouched for the
   purposes of access. The squatter succeeded in establishing title to the cultivated part
   of the land, which was effectively part of his farm, but not the access strip.

27. In Williams v Usherwood (1983) 45 P&CR 235, the squatters enclosed the paper
   owner’s land over which they had a right of way. The existence of a right of way did
   not appear to cause any difficulty for the Court of Appeal at all, and the squatter

28. Finally one has the Court of Appeal’s decision in Pleming v Hampton [2004]
   EWCA Civ 446. The squatter had a right of way over a concrete pathway which
   straddled her, and her neighbour’s, back garden. Subsequently, the entire concrete
   pathway was blocked off at one end so that it could no longer be used for the
   purpose for which it had been granted, namely as an access, and was then enclosed
   with the squatter’s back garden. The squatter claimed title to the whole concrete
   pathway by adverse possession. The paper owner defended the claim by submitting

   that such us as she had, was referable to the fact that she had a right of way.
   Chadwick LJ rejected that submission. He stated as follows:

       “[23] What is said on this appeal is that the judge was not entitled to
       find as a fact that Mr and Mrs Hampton had taken factual possession of
       the concrete pathway; or to find as a fact that they had demonstrated an
       intention to use that land as their own. It is said, in effect, that their use
       of that half of the concrete roadway which was not within their paper
       title is referable to the right of way over the pathway to which they were
       undoubtedly entitled under the conveyance of 1950 and their own
       registered title.

       [24] To my mind, the flaw in that submission is that it overlooks the
       fact that the concrete pathway had long ceased to be used for the
       purposes for which the easement of way had been granted … the
       pathway no longer provided a means of gaining access and egress from
       [the squatter’s land] … So, whatever use was being made of that part of
       the garden […], it was not use referable to a right of way originally
       granted […] Not only was it being used in a way which amounted to
       factual possession of it, but its enclosure within the garden seems to me
       the plainest demonstration of an intention to use that land as part of the
       garden, and an intention thereby to possess it.”

Other Cases

29. The question has also been considered in the context of other types of right. For instance, in
   Roberts v Swangrove [2007] EWHC 513 (Ch), the right in question was a several fishery.
   Lindsay J, at paragraphs 250 – 251, said as follows:

           “[…] if the several fishery which the Claimant admits the Third
           Defendant [the squatter] has […] is one that carries with it property
           in the bed of the river, then adverse possession and limitation does
           not assist the Third Defendant. It may be that in that context adverse
           possession would be irrelevant in the sense that ownership of a
           several fishery with associated rights to the river bed would meet all
           the wishes of the Third Defendant […] I do not need to look into
           that but the true contest, in such a case, will be one of paper titles
           between the Claimant and the Third Defendant, a contest with
           which I have not been concerned.

          251. But what is the situation if the admitted several fishery does
          not include the underlying soil? If that is the case, and running again
          over the acts of possession and control described above and bearing
          in mind, too, that a squatter’s possession is usually against the fee
          and for an estate in fee, I would hold that the Third Defendant and
          his predecessors, or, more particularly, his predecessors, acquired a
          fee simple by adverse possession over any number of 12 year
          periods […]”

30. A certain amount of blurring occurred in Port of London v Ashmore [2009] EWHC 954 (Ch).
   That case involved the mooring of a vessel in the Thames. The public right of navigation
   carries with it the incidental right to moor. Is mere mooring enough to amount to adverse
   possession in those circumstances? Stephen Smith QC, sitting as a deputy judge of the High
   Court, found that it was. Although a disinterested third party coming to the boat for the first
   time would not be able to tell whether the ship was permanently there or temporarily moored
   pursuant to the public right, he found that repeated visits would have revealed that no right of
   navigation was being exercised at all. In short, the extent and purpose of the mooring fell
   outside what was justified by reference to the public right of navigation.

Licence Cases

31. How does this translate to permission cases? There are not as many cases on the impact of
   unexpired licences (as opposed to the question of the “after effects” of a licence when the
   squatter holds over), however in the last few years the issue has been considered on three
   occasions. It would appear that the same principles apply, namely an enquiry whether the
   acts, whether as to quality or quantity, can be justified by reference to the terms of the
   permission. Depending on what the licence is for, the terms may be restricted or general. In
   the latter case, a squatter will, of course, be most unlikely to succeed.

32. The first case was Trustees of the Grantham Christian Fellowship v Scouts Association Trust
   Corporation [2005] EWHC 209. This was a battle between a local church and scout troupe.
   The scout troop had been permitted by the church to make use of some grassland behind the
   church hall, which the church had intended to build on, but never did. The condition imposed
   was that they should keep the land mowed and clean. This permission was granted in 1959.

   When approached in 1982 by the local council in connection with a proposed development,
   the scouts stated that the land belonged to the church. The scouts did, however, give the
   council permission to access the site. Additionally, from 1985 the scouts built a rockery,
   planted ornamental trees, erected one fence on one side, and installed a commemorative
   bench on a concrete plinth. The boundary between the disputed land, and the scouts’ other
   land, remained open throughout, though the disputed land was otherwise enclosed.

33. The dispute crystallised when the church wrote in 1994 thanking the scouts for keeping the
   site tidy, and asking for permission to use the scout hall. The scouts replied by way of a letter
   from the leader of the venture scouts, in terms described as “hostile”. They asserted that they
   had acquired the entirety of the land by adverse possession, having used it for thirty years.
   The told the church that it could not use the scout hall. The scouts additionally put the church
   to proof of its title.

34. The scouts succeeded below, before the then Deputy Solicitor to the Land Registry, where
   the scouts were represented by one of the Scout Group. It is not recorded whether he got a
   badge for this.

35. Blackburne J reversed the Adjudicator on appeal. He found it difficult to accept that all of the
   acts carried out by the scouts fell outside the scope of the licence, but, even if some did, he
   did not consider that this determined the licence (see at paras [31] – [32]). He went on to say
   at [33] that

                  Whilst it is of course possible to agree a term of a licence that
                  the licence will automatically end on the occurrence of a
                  particular event and while, if the circumstances of the case
                  justify it, it may be possible to imply such a term, I cannot think
                  that, in a licence as vague as this (to have the use of the land in
                  return for cutting the grass and keeping it neat and tidy), it
                  would be remotely right to imply a term that so soon as the
                  Scouts stepped outside the terms of their permitted user, for
                  example by failing for a period to keep the land neat and tidy or
                  by allowing an activity to take place on the land which was
                  outside the range of activities contemplated by the parties when
                  the licence was granted, the licence automatically ended and

              thereafter the Scouts became trespassers on the land. The
              obvious consequence of a breach of the terms of the licence, just
              as it usually will be of a breach of the terms of a tenancy, is to
              give to the licensor a right to terminate the licence and, if
              damage has been occasioned to the licensor by the breach, to
              claim damages. Of course, in the case of a licence of indefinite
              duration, as the Deputy Solicitor in effect held this one to be, it
              would in any event be open to the Church as licensor to bring it
              to an end upon reasonable notice.

36. The case therefore appears to have been argued on the basis that use falling outside the
   licence terminated it, rather than on the basis that the scouts could be in adverse possession if
   their acts went beyond the scope of their underlying permission.

37. This should be contrasted with Allen v Matthews [2007] EWCA Civ 216, a case which
   seems destined for adaptation by Guy Richie. The paper owners (A) of a scrap yard had
   permitted the squatter (M) to store items on the scrap yard in 1986. There was a difference in
   the evidence whether, on A’s case, that permission was limited to equipment storage, or
   whether, on M’s case, it extended also to scrap metal storage and reclamation works.

38. M, apparently because A had reneged on a loan, decided to take over the majority of the
   scrap yard in 1987. He used it for scrap storage and reclamation, and erected two Portakabins
   on site. A third party, P, and P’s companies P1 Ltd and P2 Ltd, also occupied a smaller part
   of the yard with him.

39. In the interim A was imprisoned for fraud. He was in prison from 1987 to 1992. In 1996, he
   was again in prison, for assault. M was then also imprisoned in 1987 (for a drugs offence),
   and was also released in 1992. For completeness, his conviction was overturned in 1996 due
   to fabrication of evidence by the police. A stated that, while he was in prison, he let P and P’s
   companies use the yard, which P did via both companies. When his son was killed in 1994, P
   traded through P2 Ltd only. P wound down his activities, and ceased altogether in 1998. M,
   after he was released in 1992, commenced use of the yard again as well. In 1998, he let the
   yard to his son.

40. While the case is principally about acknowledgments of title, for present purposes the
   treatment of the initial permission granted to M is of interest. A’s evidence on this was
   accepted by the trial judge, to the effect that the permission granted was limited to the uses
   set out in A’s evidence. The trial judge found that there was a change not just in degree of
   user, but also in the nature of the user, which the trial judge found amount to exclusive
   possession outside the scope of the initial permission.

41. Lawrence Collins LJ upheld that finding, explaining that:

              “[86] The requirement that the possession be adverse requires
              only that the possession was not pursuant to a licence, whether
              express or implied, from the owner. This is because possession is
              not adverse if it is enjoyed under a legal title. Whether a person
              with limited permission to use or occupy land might rely on more
              extensive activity to claim adverse possession is a question of fact
              turning on the circumstances of the case.
              [87] There must be a change in the nature of occupation in order
              for use or occupation by consent to become adverse possession,
              and it is not enough simply to increase use beyond what was
              permitted or contemplated. But certainly use with consent which
              becomes occupation without consent would result in adverse

42. For completeness, a similar approach was taken in Bawtree v Levett-Scrivener (HM Land
   Registry Adjudicator (REF/2005/1730), a case in which the squatter was given permission to
   enter the paper owner’s land to trim trees, but who then went on to carry out works and
   engage in activities well beyond the scope of that (obviously very limited) licence. In the
   circumstances, he claim for adverse possession succeeded.

43. The decisions in Grantham and the Allen are, of course, entirely different. Blackburne J in
   Grantham was only concerned with the question whether user in excess of the licence was
   sufficient, of itself, to terminate it. He found that it was not. The Court of Appeal in Allen, on
   the other hand, was not concerned with the continued existence of the licence as much as
   with the question whether the use which had been made by the squatter fell within the four
   corners of his permission, and, if it did not, amounted to unauthorised, that is to say adverse,
   exclusive possession.


44. The methods by which a licence can be terminated depend on the type of licence
   one is dealing with. Two types are relevant: a bare licence and a contractual licence.

Termination of Bare Licences
45. A bare licence may be terminated as follows:

       (1)    By express revocation of the licence by the licensee (even if the licensee has not
              yet completed that which he was authorised to do: Robson v Hallett [1967] 2 QB
       (2)    By completion of the act the licence authorised;
       (3)    “By death of the licensor or by assignment of the land over which the licence is
              exercised”: Terunnanse v Terunnanse [1968] AC 1086, 1095 – 1096.
       (4)    By the licensee unilaterally? It has been suggested that a bare licence could be
              terminated by the licensee simply leaving, perhaps even without prior notification
              of the licensor that the licence was to be regarded as terminated. The source of
              this proposition is to be found in one contractual licence case: Australian Blue
              Metal Ltd v Hughes [1963] AC 74, at 97 – 98 (Lord Diplock)
       (5)    By the licensor acting inconsistently with the licence? There is only one
              indication in the cases that this might be so, which is Webb v Paternoster (1616) 2
              Roll Rep 143; 81 ER. 713. It also happens to be reported in Law French…

46. However, a special rule may apply in relation to licences implied in the context of
   negotiations for the acquisition of an interest in land, which have been considered above
   (there may be a “classificatory” argument as to whether they are bare or contractual). This
   was first adverted to in the decision of Kim Lewison QC (as he was) in Bath and North
   Somerset DC v Nicholson (unreported, 22 February 2002). At paragraph 12, he suggested
   that in a “negotiations” case, permission to remain outlived the negotiations, and continued
   until determined. This is in contrast to the decision made in Dawson v King’s Lynn Borough
   Council [2005] 2 P & CR 19, in which the Court appeared to accept (though nothing turned
   on it) that the negotiations and the licence which was thereby implied ended together.
47. The most detailed consideration given to the question was in Sandhu v Farooqui [2004] 1 P
   & CR 3. In that case, S, the owner of a house containing two flats, entered into a contract to
   sell F the top floor flat. F paid a deposit and secured a mortgage. She continued to occupy,
   believing that the purchase had been completed. It had not. S appeared to have been
   implicated in a mortgage fraud and never passed title to her. F, in ignorance of this, remained
   in occupation. S disappeared for many years, but re-emerged in 2000, to serve a notice to quit
   on her. He claimed F was a licensee pending completion. However, by the time possession
   proceedings were launched, F could show 12 years’ possession. Chadwick LJ stated as

       [20] A licence to occupy premises may be granted for a term certain -
       so that it comes to an end on a fixed date limited by the term - or it may
       be granted until some event happens - in which case it comes to an end
       when the event occurs - or it may be granted until it is determined on
       notice - in which case it will be necessary to ask whether the occasion
       for giving notice has arisen and, if so, what period of notice (if any) is

       [21] In this case the licence clearly does not fall into the first of those
       categories. There was no term specified. Indeed there were no express
       terms at all. There was nothing in writing. That distinguishes this case
       from the more usual case where an intending purchaser is allowed into
       possession on signing and exchanging contracts. In such a case the
       terms of the licence are to be found in the standard conditions of the

       [22] In this case the terms of the licence have to be implied. What
       terms should the court imply? In particular, should the court, as Mr
       Atkins contends on behalf of Miss Farooqui, imply a term that the
       licence will determine automatically as soon as there is no real prospect
       of the transaction proceeding to completion, whether or not both parties
       appreciate that. Or is it necessary to imply a term that the licence
       continue, unless and until one party does something to communicate to
       the other that the transaction is no longer to proceed to completion?

       [23] I accept that the term to be implied is that the licence will
       determine when it is no longer required; that is to say, when the parties
       are no longer proceeding towards completion of the transaction in
       relation to which the licence to occupy has been given. But such a term

       will be unworkable in practice unless - and so must itself require that -
       the intention not to proceed is communicated.

       [24] I would not hold that the intention not to proceed needs to be
       communicated in express terms - although that will be the usual case. In
       the usual case either the proposed vendor or the proposed purchaser (or
       their respective agents) will write to the other in terms which make it
       clear that the party is no longer proceeding towards an exchange of
       contracts, or towards completion of the transaction without an exchange
       of contracts. But there may be sufficient indication from what one is
       doing, to the knowledge of the other, that a court will hold that a
       reasonable person, with that knowledge, would appreciate that the
       transaction is not going to proceed.

       [25] What is essential, in my view, is that there should be some
       mutual communication from which the objective observer could deduce
       that each would appreciate that the transaction is no longer proceeding.
       That element is missing in this case. There is nothing which occurred
       before 30 January 1989 that could be interpreted as a communication by
       Mr Sandhu that he and his wife were not proposing to complete the
       transaction; in respect of which they had already been paid in full and in
       circumstances in which Miss Farooqui and her brother were already in
       possession. Certainly, there was nothing from Miss Farooqui or her
       brother which suggested that they were not proceeding to completion.

48. It seems that the implied term works in either direction, i.e. where either the licensor or the
   licensee are seeking to bring an end to the licence. Accordingly, it would appear that it is not
   correct, in the context of “negotiations” licences, to hold that they determine somehow
   automatically, as the earlier cases on bare licences would appear to suggest. The Farooqui
   case was applied by the High Court in Totton and Eling v Caunter [2008] EWHC 3630 (Ch),
   a fairly typical negotiations case which has been considered above.

Contractual Licences: Termination
49. Apart from expiry by effluxion of time or completion of the authorised act, or by assignment
   of the land by the licensor (where the licence did not bind the successor in title under the
   Ashburn Anstalt v Arnold [1989] Ch 1 constructive trust), contractual licences are
   determined according to their contractual terms. It is not open to a licensor to terminate a
   contractual licence at will, in breach of express terms, due to the intervention of equitable
   remedies: see Winter Gardens, above.

50. What if the licence contains no contractual termination mechanism? The answer is that, from
   the point of view of a licensor’s seeking to terminate, a term will be furnished by implication
   to give a reasonable period for the licensee to get off the land. A recent example of such an
   implication may be found in Parker v Parker [2003] EWHC 1846 (Ch), at paragraphs 281 –

51. Finally, how can a licensee break the licence? Again, where there are no express terms, it
   may be that Farooqui reasoning would also be applied, and some form of notice provision
   would be implied into the contract. However the question is not entirely free from doubt in
   light of what was said in the Australian Blue Metal case. It is suggested that (depending, of
   course, on the other terms of the contractual licence) some form of notice provision on the
   part of the licensee can be justified where the parties appear to have overlooked the precise
   terms on which the licence can be terminated.

52. What will not do is a unilateral, and inconsistent, act by one party. The contractual licence
   has not been developed along the lines of a tenancy at will analogy, which was sometimes
   deployed in the earlier cases. As was stated in the Grantham case, mere wrongdoing would
   not terminate a licence. As Blackburne J indicated that mere wrongdoing by the licensee
   would not bring about the end of the licence of itself (at [34]). Instead, it seems that the issue
   is to be tested by reference to ordinary principles of repudiation and acceptance (at [40]):

              In any event, assuming that Mr Holmes was told that the parties'
              consensual relationship was being repudiated, it is not apparent
              from the Decision whether the Church, through Mr Holmes or
              anyone else, accepted that repudiation so as to bring the licence
              to an end. The Deputy Solicitor merely says that Mr Holmes
              was "sent away". If anything, the evidence before the Deputy
              Solicitor indicated that the repudiation, if such it was, was not
              accepted. Relevant to this is the evidence of the Reverend
              Frederick Mann who was a trustee of the Church until around
              2000 and whom, as I have mentioned, the Deputy Solicitor
              regarded as a good witness. He said that, so far as he was
              concerned, the arrangement with the Scouts continued until he
              learnt that the Scout Association had a registered possessory

              title to the land. He also stated (I am quoting from the Decision)
              that he used to pass the site frequently until 2002 and that he did
              so "to ensure that the site was being looked after and was being
              kept in a clean and tidy condition". Such evidence was scarcely
              consistent with an acceptance of the repudiatory conduct
              (assuming that it occurred). It is trite law that a repudiation
              which is not accepted has no consequence: the contract remains
              in being.

53.    When acting for a paper owner, a licence argument is sometimes the only thing which is
available as a defence to an adverse possession claim. As the first part of this paper
demonstrates, the Courts have been willing to imply licences even outside the “classic”
negotiations cases. Once a licence of some kind is found to have been created then, following
Farooqui, it should be difficult, absent some form of communication of intent to terminate or
some factual basis for demonstrating that it was limited in ime, for such a licence to be brought
to an end.

Case Study A
A marries B and goes to live with her in a house gifted to them both by B’s father in
Adjacent to the marital home and easily accessed at several points from it is some scrub
land which is owned to A’s knowledge by B’s father. A consistently works on the scrub
land, doing all the acts which an occupying owner would. Title to it is never discussed.
Is the occupation adverse? Or is there an implied licence?
B’s father dies. Title to the scrub land vests in B. A’s marriage which is not happy
irretrievably breaks down. A and B occupy separate rooms and never speak or
communicate. Is there a licence?
Some years later B moves out of the marital home and takes up occupation of a family
home on the other side of the scrub land with her children. Relations between A and B
are now non existent. Effect in terms of licence?
Is your answer different if for the first few months after B moves out A visits her house
on a daily basis, collects his supper which she has cooked, and takes it home to eat?

Case Study B
A owns and entire strip of land fronting its commercial operations apart from one
small plot in its centre which belongs to B. The entire strip is about 33 yards by 100 ft
deep. The plot owned by B is about 5 yards wide and extend back for the same depth.
In 1989 A negotiates with B for the purchase of the land. One of the proposed terms of
the intended purchase is that A will not be able to use the land other than as amenity
land; and that A will have a positive obligation to landscape and maintain the land.
The negotiations break down, A indicating that whilst it was prepared to recommend to
its board to undertake the maintenance obligation, the other terms of the deal including
price are not acceptable. No response is received to this last missive and there are
subsequently no more negotiations.

Prior to the breakdown of the negotiations A starts to maintain the small plot as part of
its general maintenance of the entire frontage. It strims, rakes, takes care of the

woodland at the back – no distinction is made between the small plot owned by B and
the rest of the frontage. It is held that factual possession is established.
B however says that as a result of the fact that the terms to maintain was included in the
proposed deal, A’s acts on the disputed land are referable to an implied license.
Is this correct?
Would the answer be any different if
                   (a) The occupation had commenced prior to the negotiations?
                   (b) The occupation had not commenced until after the negotiations?
                   (c) B had been aware of the occupation of A?

Case Study C
A Council owns several patches of useless land. One of those patches would make an
attractive extension to B’s land. Unbeknownst to the Council, he encloses the patch with
his land and uses it with his own garden, so as to be indistinguishable from the rest of
his land. The Council then starts to make enquiries whereupon B decides to make an
offer to buy the patch. Negotiations commence, but the Council loses track and B sells
his land (not mentioning the patch) on to C without the question of a sale of the patch
being resolved. C, who does not ask too many questions, continues to use the patch in
question as part of his garden, and has erected his shed and a compost heap on them.
The Council wakes up and issues proceedings, but unfortunately C has been there for 12
years prior to the commencement of the LRA 2002.

    (1) Can the Council rely on the implied licence as against C?
    (2) Would it be better, worse or no different for the Council if B had
        accepted a licence for an indefinite term as part of the negotiations, but
        providing that B was to enjoy exclusive possession of the land
    (3) Would it make a difference if the express licence in (2) above was
        expressed to be for B (without any further qualification or limitation), or
        for the “Occupier for the time being of the land in question”.


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