Adverse possession: intention to dispossess needed? Elements of an implied licence.

In J. Alston & Sons Ltd v BOCM Pauls Ltd ([2009] 1 EGLR 93) A farmed the disputed land as B’s licensee. The licence ended by operation of law when the title to the land was transferred to Pauls in March 1977. A carried on farming the land, believing that Pauls was the owner but intending to carry on farming the land until required to leave by Pauls. Pauls served notice purporting to terminate the (already long expired) licence in 2007. A brought these proceedings claiming that Pauls’ title had been defeated by virtue of section 8(1) of the Limitation Act 1980 and that Pauls therefore held the title on trust for it pursuant to section 75 of the the Land Registration Act 1925. Pauls’ defence relied, inter alia, on the proposition that A needed to show (and could not) an intention to dispossess Pauls. Pauls also argued that A had been in occupation pursuant to the terms of an implied licence. A succeeded.

HH Judge Marshall QC applied the House of Lords’  explanation of the law in J A Pye. The question was whether A had only an intention to stay temporarily (ie to occupy but not possess); this was a question of fact and degree ([63]). A intended to stay on the land as long as possible. He accepted that he would have left if Pauls had insisted (but they never did). He thought that they were the owners of the land. He would have objected if any third party had tried to make use of the land ([87]). This was sufficient. There is no need for an intention to dispossess:

‘I reject the argument that there has to be an intention to “infringe the rights of the true owner”, which seems to me to be reintroducing the deprecated connotations of conflict attaching to the label “adverse possession”. Pye shows that the necessary intention is simply that of possessing the property on one’s own account and in one’s own interests and sufficiently indefinitely and permanently as to amount to “possession” in law, and not merely to temporary “use”. So long as one does so without any permission from the owner, in point of fact or law one is in “adverse” possession, simply because the law makes it adverse to the true owner’s interests.’ ([99])

An intention to possess indefinitely coupled with an acceptance that the paper owner has the right to demand possession is a sufficient intention to possess ([104]).

Pauls had also relied on the concept of an implied licence. The Limitation Act 1980 (Schedule 1, para. 8(4)) makes it clear that the implied licence must be real. There was no evidence of an implied licence on the facts of this case ([133]). The judge reviewed the recent English authorities and said:

‘In all the cases (Lambeth, Bath, Dawson, and Batsford) where such an implied licence has been found, there has been one of two situations. Either the occupation was pending the negotiation of the grant of an interest in the land (Bath and Dawson), in which drawing such an inference is relatively easy, or the history of the matter has shown that there was a specific intention on the part of the owner to seek to eject the occupier, followed by an express reconsideration and change of stance, with a good deal of communication going on between the parties, from which the obvious inference, obvious to anyone who knew the facts, was that the owner had made an express decision to permit the occupation and the occupation was continuing for that reason, thus amounting to the giving of permission by implication.’  ([137])

There had also been a suggestion that Pauls had retaken possession by pumping excess surface water from its neighbouring land onto the disputed land a few times a year. This argument failed. The acts were minor, affected only a small part of the land, had no impact on A’s operations and were not even noticed by him ([77]).

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3 Responses to “Adverse possession: intention to dispossess needed? Elements of an implied licence.”

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

    […] 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 […]

  2. Patty Says:

    Can a co-owner be adversely in possession of common aea which it also owns. Is adverse possession restricted to other people’s land?

    • Michael Lower Says:

      Adverse possession involve the loss of one’s right to recover possession. I think there is a case (covered in this blog) where the court had to consider whether an ousted co-owner had lost the right to possession. Effectively, this meant that only the other co-owner retained the right to possession. I’ll post more details if I come across the case again.

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