Aylwen v Takla

Occupation of a storage room by a flat tenant is ordinarily presumed to be permissive where the room is not included in the lease. Exclusive use, possession of a key, or the ability to exclude others does not, without more, establish adverse possession. The claimant bears the burden of proving adverse possession, and convincing evidence is required where the surrounding circumstances ordinarily indicate permission. A proprietary estoppel cannot be established by speculation or by conduct which merely permits use of a room. The representation relied on must be identifiable, intended to be relied upon, and in fact relied upon.

The head lessor sought possession of a basement box room from the assignee of Flat 3. The lease demised a different box room, but the respondent and her predecessor had occupied the disputed room. The respondent relied on adverse possession and, alternatively, proprietary estoppel.

The Central London County Court held that the disputed room had become part of the premises demised with Flat 3. The appeal concerned whether the evidence supported adverse possession or a representation binding the appellant as successor to the former landlord.

1. Appeal allowed. The respondent failed to establish either adverse possession or proprietary estoppel. Possession was ordered within 28 days, with costs of the appeal and no order as to costs below.
2. Whether occupation is possession, and whether it is adverse, depends on all the circumstances. The character and use of the property, and the conduct reasonably expected of the owner, are relevant. The principle stated in Lord Advocate v Lord Lovat [1880] 5 AC 273 was applied.
3. The disputed rooms were in a basement controlled by the landlord. They were generally used for storage by flat occupiers who were not tenants of the rooms. In those circumstances, use would ordinarily be understood as permissive. A key enabling the occupier to lock the room did not alter that conclusion. Payment of a storage charge was inconsistent with adverse possession.
4. Paragraph 8(4) of Schedule 1 to the Limitation Act 1980 prevents permission being inferred merely because occupation is compatible with the owner's present or future enjoyment. It does not prevent a finding of implied permission based on the actual facts. Here, the respondent did not discharge the burden of proving that her predecessor's occupation was adverse.
5. The evidence did not justify an inference that the predecessor believed the disputed room was the room identified in the lease. Nor did it establish a clear representation by the former landlord that the disputed room formed part of the demise. The suggestion that permission to use the room amounted to such a representation was speculative. The former landlord could not be taken to have represented that the disputed room was included in the lease merely because a later assignee failed to check the lease.

• Court of Appeal (Civil Division): allowed the appeal from the Central London County Court; possession of the disputed box room was ordered within 28 days.