Colin Dawson Windows Ltd. v Borough Council of King's Lynn & West Norfolk & Anor

An occupier's possession is not adverse while it is held by the paper owner's express or implied permission. Permission may be inferred objectively from overt acts and correspondence. Where occupation continues during genuine negotiations for the grant or sale of an interest in identified land, it is natural to infer permission until the negotiations have irretrievably broken down.

The question is whether a reasonable person would understand that the occupier was permitted to remain. Conditional demands to leave if negotiations fail may support, rather than negate, that inference. A period of implied permission prevents the continuous adverse possession required for a twelve-year limitation period.

Colin Dawson Windows Ltd had used part of a cleared site at North End Yard as a car park from about August 1987. Mrs Howard counterclaimed on the basis of title to the site of her former demolished house.

His Honour Judge Darroch, sitting in Norwich County Court, found that Mrs Howard had proved title to the relevant plot, but held that the company had acquired title by adverse possession. He rejected the contention that the company's occupation had been under an implied licence while the parties negotiated a sale.

Mrs Howard appealed. The company challenged the finding of paper title and sought permission to advance a new point concerning the timing of the assent of the land from her late husband's estate. The central issue was whether the correspondence objectively established implied permission which interrupted adverse possession.

Appeal allowed. Rix LJ, with whom Jonathan Parker LJ agreed, held that the company had not established twelve years of adverse possession.

1. The judge was entitled to find that Mrs Howard had established paper title to the former No 4A North End Yard. The historical conveyances, the 1958 plan and the evidence concerning the house's location supported that conclusion despite later uncertainty in correspondence and changes in numbering.
2. The judge erred in treating J A Pye (Oxford) Ltd v Graham [2002] UKHL 30 as assistance against an implied licence. In that case the owners had expressly refused renewal and required the occupier to leave, so no issue of implied permission arose.
3. The correspondence here objectively conveyed that the company could remain on the land while negotiations for its purchase continued. The conditional requests to vacate, and later to stake out the plot, applied only if negotiations did not proceed. By December 1990 the land had been identified as No 4A, and negotiations continued until at least August 1991.
4. The court respectfully adopted the principle in Bath & North Somerset District Council v Nicholson (22 February 2002, unreported): occupation pending negotiations for an interest in land naturally supports an inference of permission until the negotiations irretrievably break down. The correspondence was overt and objective conduct from which a reasonable person would conclude that the company had permission. If sued in trespass during the negotiations, it would have had a defence based on that permission.
5. That implied licence made the occupation non-adverse during a period within twelve years before the counterclaim. The court therefore rejected the adverse-possession claim. It also refused permission to advance the fresh point under paragraph 8(4) of Schedule 1 to the Limitation Act 1980, since evidence at trial might have shown that Mrs Howard acted with the personal representative's authority.
6. The county court order was set aside. Mrs Howard was granted possession within 14 days. Damages for loss of use and enjoyment, with interest, were to be assessed on remission to King’s Lynn County Court.

• Court of Appeal (Civil Division) — allowed Mrs Howard's appeal and set aside the county court order: [2005] EWCA Civ 9.
• Norwich County Court — His Honour Judge Darroch found that Mrs Howard had proved paper title but held that Colin Dawson Windows Ltd had acquired title by adverse possession, and dismissed her counterclaim.