Adverse possession: what if the true owner is the tenant of the adverse possessor? What is needed for the rightful owner to resume possession?

In Bligh v Martin ([1968] 1 W.L.R. 804) M conveyed land to D in 1945. He purported to convey the same land to P’s predecessor in title in 1948. P and D each mistakenly believed that the disputed land belonged to P. P granted D a lease of the disputed land (the disputed land was around one tenth of the entire area covered by the lease). D’s lease lasted for 7 or 8 (later 9) months of each year. Unknown to P, D also used the land for grazing during the winter months. Then D discovered that he was the rightful owner of the land. P sought a declaration that he was entitled to the fee simple as adverse possessor (relying on the provisions of the Limitation Act 1939). D claimed that he had been in possession during the winter months when he was not on the land by virtue of the lease. P succeeded. D’s acts did not amount to a resumption of possession and this was necessary to interrupt the period of adverse possession. It was not enough (distinguishing Allen v England) for the rightful owner simply to set foot on the land (812 per Pennycuick J).

Pennycuick J said:

‘In the present case, I feel no doubt that the plaintiff should be regarded as having remained in possession of No. 446 continuously throughout this period. The defendant was on No. 446 primarily in the capacity of a contractor employed by the plaintiff. His own use of the land by turning heifers on to it during winter months falls, it seems to me, far short of dispossessing the plaintiff. Possession is, from its nature, exclusive in this connection. There is no question of concurrent possession. It would, I think, be quite wrong to regard the owner of arable farmland as having been dispossessed of that land because during certain winter months he personally makes no use of it and some other person puts cattle upon it.’ (812)

On the wording of the Limitation Act 1939, P could be in possession through receipt of the rent even though the tenant was the rightful owner of the demised property (813).

A lease to the rightful owner might be void for mistake but not where the disputed land was only a small part of the property covered by the lease (814).


One Response to “Adverse possession: what if the true owner is the tenant of the adverse possessor? What is needed for the rightful owner to resume possession?”

  1. Paper owners need to take clear action to resume possession within the limitation period | Land Law Says:

    […] I have posted a brief article on SSRN that pulls together aspects of some recent blog posts. The article can be downloaded from here. The article emphasis the lessons to be drawn from Zarb v Parry, J. Alston & Sons Ltd v BOCM Pauls Ltd and Bligh v Martin. […]

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