Mitchell v Watkinson & Anor

A tenancy created by payment and acceptance of rent may be a tenancy without a lease in writing, although its terms reproduce an earlier written agreement between different parties. Estoppel cannot alter that conclusion without a shared, unequivocal assumption about the legal basis on which the tenancy arose, reliance on that assumption, and resulting unconscionability.

For limitation purposes, a periodic tenant whose tenancy is deemed determined may remain in adverse possession through licensees. The tenant's death, and vesting of the tenancy in the Probate Judge in default of personal representatives, does not by itself end an existing licence or interrupt possession. The exception for a tenant with an exceptionally feeble connection with the land is fact-specific.

The appellant, the widow and successor in title of Lawrence Mitchell, sought possession of land used by a cricket club. In 1947 Lawrence's father purported to grant a written yearly tenancy to trustees of the club after he had already gifted the land to Lawrence. Lawrence thereafter accepted rent from the trustees until 1974.

Morgan J held that the tenancy between Lawrence and the trustees arose by conduct, on the written agreement's terms, but was not itself a lease in writing. The tenancy was therefore deemed determined after the final rent payment, and the club's occupation through the tenant's licence caused Lawrence's title to be extinguished after 12 years.

The appeal concerned whether estoppel made the tenancy a written lease and, if not, whether the successor tenant remained in possession for the required limitation period.

1. Appeal dismissed. The court upheld the finding that Lawrence's title was extinguished on 8 October 1986 under section 17 of the Limitation Act 1980.

2. The 1947 written agreement created a tenancy by estoppel between Arthur and the trustees. It prevented the trustees from denying Arthur's title and gave Arthur a reversion by estoppel. It did not bind Lawrence, who was not a party, and Arthur had not assigned that reversion to him. The estoppel could not be fed merely because Lawrence already owned the land; it would be fed where the grantor subsequently acquired title.

3. The parties' conduct, including rent payment and acceptance after Lawrence became landlord, entitled the judge to find a new periodic tenancy implied by conduct on the compatible terms of the written agreement. The substitution of Lawrence as landlord was sufficiently unequivocal to treat the earlier tenancy by estoppel as rescinded or surrendered. A tenancy whose terms are evidenced by writing is not thereby a lease in writing for paragraph 5(1) of Schedule 1.

4. Neither estoppel by representation nor estoppel by convention assisted the appellant. The trustees had made no representation concerning the tenancy's legal source. Nor had the parties shared, acted on, or assumed responsibility for an unequivocal common assumption on that subtle and previously irrelevant legal question. It was therefore open to them to advance the correct legal analysis.

5. On the deemed determination, the tenant's possession ordinarily became adverse, consistently with Williams v Jones [2002] 3 EGLR 69. This was not an exceptional case of possession so feeble that it had ceased. The tenancy survived Mr Staddon's death and, whether vested in personal representatives or the Probate Judge, the successor tenant retained possession through the club members' continuing licence. Their unchanged occupation was evidence that the licence continued throughout the limitation period.

• Court of Appeal (Civil Division): dismissed the appellant's appeal and upheld the conclusion that the paper title had been extinguished: [2014] EWCA Civ 1472.
• High Court, Chancery Division: Morgan J held on 25 July 2013 that the tenancy was without a lease in writing and that the landlord's title was extinguished after the applicable limitation period.