Lodge (t/a J D Lodge) v City of Wakefield Metropolitan Council

For limitation purposes, an unwritten tenancy is treated as determined at the end of the first relevant period, or on the last receipt of rent if rent was later received. After that point, a former tenant may be in adverse possession even if he believes that rent remains payable. The required animus possidendi is an intention to possess land to the exclusion of others, including the paper-title owner, so far as reasonably practicable and as the law permits. It is not an intention to own the land. A belief that the former tenancy continues therefore does not prevent limitation running under Schedule 1, paragraph 8(1) of the Limitation Act 1980.

The claimant had occupied 11.9 acres under an oral tenancy from 1969. Rent was last paid in January 1974, although he later believed that he was still paying rent for the land. His claim for a declaration that the Council’s title had been extinguished was dismissed by His Honour Judge Barr-Young in the Pontefract County Court on 11 May 1993.

On appeal, the Council argued that the claimant’s possession was not adverse under Schedule 1, paragraph 8(1) of the Limitation Act 1980 because he believed that the tenancy and rent payments continued. The central issue was whether that belief negatived the required intention to possess.

Appeal allowed. The claimant had established possessory title, and a declaration was granted that the Council’s title to the land was extinguished.

1. The claimant had been in factual possession since 1969. The relevant intention was animus possidendi. Following the approach in Powell v McFarlane (1977) 38 P & CR 452 and Buckinghamshire County Council v Moran [1990] Ch 623, this required an intention, for the time being and on the possessor’s own behalf, to exclude the world at large, including the paper-title owner, so far as reasonably practicable and as the processes of law allowed. It did not require an intention to become owner.
2. Schedule 1, paragraph 5 of the Limitation Act 1980 treated an unwritten tenancy as determined at the end of the first year or other period, or on the last receipt of rent where rent was subsequently received. Paragraph 8(1) required adverse possession before a right of action to recover land could accrue. The reasoning in Moses v Lovegrove (1952) 2 QB 533, Hayward v Chaloner [1968] 1 QB 107 and Jessamine Investment Company v Schwartz [1978] QB 264 supported treating possession as adverse after the last rent payment, notwithstanding the absence of a notice to quit or a continuing contractual relationship for other purposes.
3. The claimant’s belief that he continued to pay rent was immaterial. The authorities could not be distinguished on that basis. The court derived no assistance from Smirk v Lyndale Developments [1975] Ch 317.

The order was appeal allowed with costs here and below.

1. Pontefract County Court: On 11 May 1993, His Honour Judge Barr-Young dismissed the claimant’s claim for a declaration that the Council’s title had been extinguished.
2. Court of Appeal (Civil Division): The court allowed the appeal, granted the declaration, and ordered costs here and below: [1995] EWCA Civ 41.