Batsford Estates (1983) Company Ltd v Taylor & Anor

Occupation is not presumed permissive merely because it is compatible with the owner’s present or future enjoyment of land. However, paragraph 8(4) of Schedule 1 to the Limitation Act 1980 permits implied permission where the actual facts justify that finding. Permission may be inferred from an overt act or demonstrable circumstances, and where a reasonable person with knowledge of the material facts would appreciate that occupation was permitted. In an adverse-possession claim, permission need not have been communicated. Where occupation of adjoining land is inextricably connected with permitted occupation of demised premises, the adjoining occupation may also be permissive.

The Estate sought possession of the Old Farmhouse, adjoining farmyard and buildings, orchard and paddock. The first defendant claimed through his late father, Algy Taylor, asserting that title had been acquired by adverse possession from 1 October 1985. The Estate contended that occupation after 1985 was either under the tenancy or by implied permission.

Following a three-day trial, Mr Recorder Evans ordered delivery of possession, declared that the defendants had no interest in the land and ordered the caution to be vacated. The appeal concerned whether occupation was by implied permission within the second part of paragraph 8(4) of Schedule 1 to the Limitation Act 1980, and whether that conclusion extended beyond the farmhouse.

The appeal was unanimously dismissed. The Estate was entitled to possession of all the disputed land.

1. Applicable statutory framework. Section 15 of the Limitation Act 1980 imposes the relevant twelve-year limitation period. Under paragraph 8(1) of Schedule 1, no right of action accrues unless the land is in the possession of a person in whose favour time can run. Paragraph 8(4) prevents permission being presumed merely because occupation is compatible with the owner’s present or future enjoyment, but expressly permits a finding of implied permission justified by the actual facts.
2. Implied permission. The general test is twofold. There must be an overt act by the landowner or demonstrable circumstances from which permission was in fact given can be inferred. A reasonable person, assumed to know the material facts, must also have appreciated that the occupation was with the owner’s permission. The test, derived from London Borough of Lambeth v Rumbelow and approved and applied in Colin Dawson Windows Limited v Borough Council of King’s Lynn & West Norfolk [2005] EWCA Civ 09, was capable of applying outside cases involving negotiations for acquisition.
3. Application to the farmhouse. The Estate’s acceptance of the status quo after the parties’ positions had crystallised, its failure to pursue possession after the 1985 notice to quit, and Mr Algy Taylor’s return to the farmhouse in 1986 constituted demonstrable circumstances supporting implied permission. A reasonable person with knowledge of those matters would have appreciated that occupation was permitted. Permission did not need to be communicated by words or conduct; if communicated, it would be express rather than implied.
4. Other land. The recorder found that occupation of the green and red land was inextricably bound up with occupation of the farmhouse. The established encroachment principle treated land occupied by a tenant through possession of demised premises as an addition to the demise, subject to the tenancy, unless the tenant’s conduct showed occupation for his own benefit. The necessary implied permission therefore extended to the adjoining land.

• Court of Appeal (Civil Division): On 29 April 2005, the court dismissed the appeal and upheld the order for possession.
• Worcester County Court: Mr Recorder Evans delivered judgment on 4 October 2004, ordering the defendants to deliver up the disputed land, declaring that they had no right or interest in it, and ordering the caution to be vacated.