Allen v Matthews

For adverse possession, the claimant must prove factual possession, an intention to possess, and possession that is adverse because it is not enjoyed under the owner’s licence. Where occupation began by consent, a mere increase in use is insufficient: the nature of the occupation must change so that it is no longer pursuant to consent.

An acknowledgment of title under the Limitation Act 1980 must be made by, or on behalf of, the person in possession and must reasonably be understood by the owner as coming from that person. A letter written for a dissolved company could not be treated as an acknowledgment by the individual or another company then in possession.

The claimant sought possession of land occupied by the defendant and associated businesses. The defendant counterclaimed that continuous adverse possession for more than 12 years had extinguished the claimant’s title under sections 15 and 17 of the Limitation Act 1980.

The county court found adverse possession but held that a solicitor’s letter of 7 June 1994 amounted to an acknowledgment of title under sections 29 and 30, restarting time. Judgment for possession was entered for the claimant and the counterclaim was dismissed.

The defendant appealed on the acknowledgment issue. The claimant relied on a Respondent’s Notice concerning consent to occupation and sought to adduce fresh evidence about one occupier’s alleged permission. The central issues were whether the letter was an acknowledgment by the person in possession and whether the findings on adverse possession or the refusal of fresh evidence should be disturbed.

1. Appeal allowed. The letter of 7 June 1994 was not an effective acknowledgment of title under sections 29 and 30 of the Limitation Act 1980.
2. For an acknowledgment, the document must be construed in its surrounding circumstances. It must contain a statement by, or on behalf of, the person in possession which the owner can reasonably understand as an acknowledgment from that person. The letter acknowledged that the trustee in bankruptcy had the right to sell the property and asked whether the client would receive sale proceeds, so it was an acknowledgment in substance. But it was plainly written on behalf of A E Penny & Son Ltd, described as the holder of the caution and contracting party. That company had been dissolved and the letter could not be treated as written for Mr Penny or Templewing Ltd.
3. The court explained the limited relevance of Lambeth London Borough Council v Bigden. The agency reasoning there depended on the writer intending to act for the individual occupiers and the recipient understanding that position. It did not permit the court to disregard the author’s intention and the recipient’s understanding here.
4. The findings that occupation had become adverse by the summer of 1987 were upheld. Adverse possession requires factual possession, the intention to possess to the exclusion of others including the paper-title owner, and possession not pursuant to an express or implied licence. Where occupation began with consent, a change in the nature of occupation is required. A mere increase beyond what was permitted or contemplated is insufficient.
5. The proposed fresh police statement did not satisfy the Ladd v Marshall guidelines or the overriding requirement that fairness justify overriding finality. It added nothing materially new, went mainly to credit, lacked detail, and was unlikely to affect the result. There was no basis for a retrial.
6. The costs cross-appeal was not permitted to proceed.

• Court of Appeal (Civil Division): [2007] EWCA Civ 216 allowed the defendant’s appeal and refused permission to appeal on the costs issue.
• Central London County Court, sitting at Kingston Crown Court: HH Judge Collins ordered possession for the claimant and dismissed the adverse-possession counterclaim. The citation was not stated in the judgment.