London Borough of Tower Hamlets v Barrett & Anor

Adverse possession requires factual possession and an intention to possess. Factual possession depends on the land’s nature and use, and possession must be exclusive. A paper owner does not retain possession merely because structures belonging to it remain on the land or because it has an unexercised responsibility concerning them.

A tenant who encroaches on adjoining land is presumed to acquire possessory title for the landlord. The presumption is rebuttable. An acknowledgment by that landlord does not restart limitation under section 29(2) of the Limitation Act 1980, because it must be made by the person actually possessing the land.

Where the landlord later transfers the reversion to the tenant, the circumstances and transaction may show that the adjoining possessory title was transferred with it.

The council obtained a county court possession order concerning registered open land beside a public house. The publicans appealed, contending that their enclosure, storage, building works and maintenance of the land had given rise to possessory title.

The county court had found that the publicans’ activities would otherwise establish adverse possession, but held that supporting props placed on the land preserved the council’s factual possession. It also concluded that possessory title could not benefit the publicans because they had occupied as tenants.

The appeal required the court to determine whether there had been continuous adverse possession, whether the props preserved the paper owner’s possession, whether negotiations by the tenants’ landlord created a licence or effective acknowledgment, who acquired and later received the possessory title, and whether section 3 of the Human Rights Act 1998 affected title acquired before that Act came into force.

1. Appeal allowed unanimously. The possession order was set aside. The council held the registered freehold title on trust for the appellants under section 75 of the Land Registration Act 1925.

2. The appellants had factual possession and an intention to possess from 1977 or 1978. They controlled access through a locked gate, maintained the enclosure, stored property, permitted another person to use the land and later undertook substantial works. Their less intensive use after 1995, and the fact that replacement fencing fell slightly inside the boundary, did not terminate possession when assessed in context.

3. The supporting props did not preserve the council’s factual possession. An easement or contingent responsibility to enter land is not physical control. The council neither entered to maintain the props nor otherwise exercised possession. Chattels left by a paper owner on occupied land likewise do not, without more, defeat adverse possession.

4. No licence arose from negotiations between the council’s predecessor and the appellants’ landlord. An implied permission to occupy could not arise when the supposed licensor did not know of the occupation and the occupiers did not know of the negotiations.

5. The negotiations included an offer concerning the disputed land and therefore acknowledged the paper owner’s title. A non-binding offer made subject to contract can constitute an acknowledgment. The acknowledgment was nevertheless ineffective under section 29(2) of the Limitation Act 1980, because it was made by the landlord rather than by the appellants, who were the persons in possession.

6. The tenant-encroachment doctrine created a rebuttable presumption that possessory title accrued to the landlord when the 12-year period expired. The land was adjoining, occupied with the demised premises and used for the public-house business. The presumption was not rebutted.

7. On the subsequent sale of the reversion, the possessory title was included in the transfer to the appellants. The physical circumstances, the existing tenancy and the terms and commercial coherence of the transaction supported that conclusion. Alternatively, the appellants’ tenancy of the area had not merged and continued to entitle them to possession.

8. Section 3 of the Human Rights Act 1998 could not alter property rights which had accrued before it came into force. The council therefore could not invoke article 1 of the First Protocol to reverse the earlier acquisition of possessory title.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously and the possession order was set aside: [2005] EWCA Civ 923.

2. Bow County Court: His Honour Judge Bradbury ordered the appellants to give possession of the disputed land to the council on 25 November 2004.