Smith (Personal Representative of Hugh Smith (Deceased)) and others v Molyneaux

Permission that prevents adverse possession under the Registered Land Act section 135(1) is a question of permission in fact. It may be given orally or in writing, through words or conduct. It need not be expressed in formal terms or accepted by the occupier. A statement that the occupier must leave when the owner wishes to develop land may necessarily imply permission to remain until then.

This is distinct from an implied licence in law based solely on the owner’s intention to use land in future. That concept forms no part of the common law. A trial judge must give adequate reasons for material conclusions, but need not record every evidential consideration.

The appellants, members and representatives of the Smith family, claimed possession of land in the British Virgin Islands from Mr Molyneaux, who had lived there for many years with his wife, Victoria Cameron. The trial judge, Ross J, ordered possession on 24 September 2009.

The Court of Appeal of the Eastern Caribbean Supreme Court allowed Mr Molyneaux’s appeal on 18 April 2012. It held that permission had not been established and that his possession had become adverse after his wife’s death. The Privy Council had to determine whether permission had been given, whether it could be inferred without express words, and whether it required acknowledgment by the occupier.

1. Dame Mary Arden delivered the Board’s judgment. The appeal was allowed. Under section 135(1) of the Registered Land Act, permission sufficient to prevent acquisition of title by adverse possession is permission in fact. It may be given unilaterally by the owner and does not require acceptance or acknowledgment by the occupier. The Court of Appeal therefore erred in holding that any permission had to be acknowledged by Mr Molyneaux.
2. The Board distinguished factual permission from an implied licence in law. The latter concept, under which the owner’s intention to develop land could itself make occupation non-adverse, forms no part of the common law. The Board treated the reasoning in JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419 and Ramnarace v Lutchman [2001] UKPC 25; [2001] 1 WLR 1651 as supporting that distinction.
3. Permission need not be granted in express terms. It may arise by inference from words or conduct. Telling an occupier that he would have to leave when the owners decided to develop the land necessarily implied permission to remain until that event. The Board regarded the circumstances as comparable to Colin Dawson Windows Ltd v Kings Lynn, West Norfolk Borough Council [2005] EWCA 9; [2005] 2 P & CR 19.
4. The trial judge’s reference to informal “accommodations”, read with the evidence, amounted to a finding that permission had been given. The judge had accepted the Smiths’ evidence over Mr Molyneaux’s evidence. His reasons, including the discrepancy concerning the boundaries of the occupied land, were sufficient to support that assessment.
5. A judge must give at least one adequate reason for each material conclusion. The judgment must identify issues vital to the outcome and explain how they were resolved, although it need not identify every evidential consideration. If the appellate court cannot deduce the reasons, it may set aside the conclusion and order a retrial or make its own findings: English v Emery Reimbold & Strick Ltd [2002] EWCA 605; [2002] 1 WLR 2409. The Board found the reasons adequate. The permission prevented adverse possession from running after Ms Cameron’s death. The Board advised that the appeal should be allowed and directed submissions on costs within 21 days.

1. Privy Council: On 21 November 2016, allowed the appeal and advised that the order of the Court of Appeal should be set aside. Costs submissions were directed within 21 days.
2. Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands): On 18 April 2012, allowed Mr Molyneaux’s appeal from Ross J, holding that he had been a trespasser after 17 August 1992 and that the possession proceedings should have been dismissed.
3. Ross J: On 24 September 2009, ordered Mr Molyneaux to give up possession of the Property to the Smiths.