Ofulue & Anor v Bossert

Under the law before the Land Registration Act 2002, a person claiming title by adverse possession need show factual possession and an intention to possess without the paper owner’s consent. The claimant need not intend to own the land or to exclude the owner altogether. A mistaken belief that the claimant is a tenant, an admission of the owner’s title, or a willingness to pay if asked does not itself negate that intention.

An acknowledgement under section 29 of the Limitation Act 1980 must acknowledge the title relevant to the dispute. In a possession claim, this means a better present right to possession. A without-prejudice settlement offer which implies acknowledgement of title is inadmissible unless an established exception applies.

The registered owners sought possession of a house occupied by the respondent and her late father. The occupants had carried out repairs, paid rates and asserted in earlier possession proceedings that they were tenants or entitled to a lease. Those proceedings were later permanently stayed.

In fresh proceedings commenced in 2003, the respondent pleaded that she had acquired title by adverse possession. HHJ Levy QC held that adverse possession had been established and that the owners’ title had been extinguished before the Human Rights Act 1998 came into force.

The owners appealed. They relied on Article 1 of Protocol No 1, contended that the asserted tenancy negatived the necessary intention to possess, and argued that the earlier defence and a without-prejudice purchase offer acknowledged their title for limitation purposes.

1. Appeal dismissed; respondent’s notice allowed in part. Arden LJ, with whom Sir Martin Nourse and May LJ agreed, held that the court should follow the Grand Chamber decision in Pye v United Kingdom, [2007] ECHR 44302/02. That decision established that the pre-2002 adverse-possession regime was a control on the use of land, pursued a legitimate aim and was proportionate. Its conclusion applied generally and could not be avoided by rebalancing the facts of each individual case.
2. Under section 2 of the Human Rights Act 1998, domestic courts should ordinarily keep pace with Strasbourg jurisprudence. No special circumstance justified a departure. The owners had not pursued their earlier possession proceedings to a conclusion, and the result was not so anomalous as to make the legislation unacceptable.
3. The respondent’s assertion that she and her father were tenants did not prevent adverse possession. The necessary intention was an intention to possess, not to acquire title or wholly to exclude the paper owner. A person who wrongly believes that he is a tenant may nevertheless possess without the owner’s consent. An admission of title, or willingness to pay if asked, is consistent with possession in the meantime.
4. The 1989 possession proceedings stopped time only while they remained on foot. Their permanent stay did not interrupt the limitation period for the later proceedings.
5. The earlier defence and counterclaim acknowledged that the owners held the paper title, but denied that they had an immediate right to possession. It therefore did not acknowledge the relevant title for section 29 of the Limitation Act 1980. A pleading is ordinarily a representation of the facts at its date, rather than a continuing acknowledgement.
6. The 1992 letter impliedly acknowledged the owners’ title, but was a genuine without-prejudice offer intended to settle the possession dispute. It was inadmissible. None of the asserted exceptions, including abuse of the privilege or proof of an independent fact, applied. The respondent had accordingly acquired the property by adverse possession.

• Court of Appeal (Civil Division): Appeal dismissed in [2008] EWCA Civ 7.
• Central London County Court: HHJ Levy QC held that the respondent had acquired the property by adverse possession and that the appellants’ title had been extinguished.