Mitchell v Watkinson & Anor

Under paragraph 5 of Schedule 1 to the Limitation Act 1980, a periodic tenancy is treated as determined, and the landlord’s right of action as accrued, even though the tenancy has not actually been determined. A “lease in writing” requires a document which itself passes an interest or operates as a lease; written evidence of the tenancy’s terms is insufficient. The statutory fiction applies notwithstanding security of tenure under the Landlord and Tenant Act 1954. Paragraph 8 then requires possession capable of supporting limitation. A tenant holding over after the notional determination will ordinarily remain in adverse possession unless the connection with the land is exceptionally feeble or possession ceases. Twelve years’ qualifying possession extinguishes the paper owner’s title.

The claimant sought possession of land forming part of a former cricket ground. The defendants, associated with the cricket club, contended that the claimant’s title had been extinguished by adverse possession under the Limitation Act 1980.

The parties accepted that a tenancy granted in 1947 continued over the relevant southern section and that rent was last paid on 8 October 1974. The issues were whether the tenancy was “without a lease in writing” for paragraph 5 of Schedule 1, whether security of tenure under Part II of the Landlord and Tenant Act 1954 prevented paragraph 5 from operating, and whether there had been qualifying possession under paragraph 8.

1. Outcome. The defendants established that the claimant’s predecessor’s title to the southern section was extinguished on 8 October 1986. The representative of the estate of the last surviving named tenant acquired a possessory title. The court directed that the parties seek to agree an order reflecting that no representative of the estate was a party.
2. The 1947 written agreement was not the source of the tenancy between Lawrence Mitchell and the trustees. Lawrence Mitchell was not a party to it and acquired the freehold before it was made. The tenancy arose by implication from the payment and acceptance of rent, although its terms were those recorded in the agreement.
3. For paragraph 5 of Schedule 1, a “lease in writing” must itself pass an interest, operate as a lease, or create an estate. A document which merely evidences the terms of a tenancy does not qualify. The court followed the principle stated in Long v Tower Hamlets LBC [1998] Ch 197, applying it to the 1947 agreement.
4. Paragraph 5 treats a periodic tenancy as determined at the relevant date and treats the right of action as accrued, irrespective of whether the tenancy has actually ended or what notices would be required in reality. Security of tenure under Part II of the Landlord and Tenant Act 1954 therefore did not prevent paragraph 5 from operating. The contrary reasoning in Perry v New Islington and Hackney Housing Association was rejected.
5. For paragraph 8, the court applied the former-tenant approach in Williams v James [2002] 3 EGLR 69. After the notional determination, the tenant was treated as holding over in adverse possession. The club’s grass cutting, working parties, retrieval of cricket balls, use by spectators and public bonfire events established continuous possession until 2 November 1990. Nothing caused possession to cease before 8 October 1986.
6. The acknowledgement of title on 2 November 1990 occurred after extinction and did not revive the title, following Nicholson v England [1926] 2 KB 93. The pond area was not properly in issue and, in any event, the evidence did not establish holding over there.