Buckinghamshire County Council v Moran PDF

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Buckinghamshire County Council v Moran Area of law concerned: Court: Date: Judge: Counsel: Summary of Facts:

20 October 1955- Council acquires plot of land for future use of proposed road diversion 1962- Council erects new fence with gate in it (but nothing separated it from the defendant’s house) 1967- defendant’s predecessors begin maintaining the plot by mowing grass and trimming hedges and using it for own purposes. Council stops maintaining plot. 1971- House (Dolphin Place) conveyed to defendant by a conveyance which described the parcels as ‘together with… all such rights estate title and interests as the vendors may have in or over’ the plot. Vendors made a declaration setting out their acts and use of the plot since 1967. They also stated that during that time no one had challenged their right to occupy the plot, and that their permission was sought for the laying of an electric cable across the plot to the local tennis club Defendant puts new lock and key onto the fence. There was now no unimpeded access to the plot except via the house and garden. 1975- tennis club wanted to lay a drain, and applied to the council for permission. The council became aware of the defendant’s use of the plot. 20/1/76-defendant wrote to council pointing out the use made since 1967 and enclosed copies of contract and statutory declaration. “it has always been my firm understanding that the land should be kept by the owner of the house if and until the proposed road diversion” and that he was taking legal advice. 3/2/76- Council denies defendant’s right to the plot 25/3/76 defendant’s solicitors right to council saying that defendant had acquired title via adverse possession. No action taken by council. 28/10/85- Council brought proceedings to recover possession of the plot

‘Relief sought: Issues:

Relevant Statute(s):

Limitation Act 1980 S15(1) No action shall be brought by any person to recover any land after the expiration of 12 ears from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. Paragraph 1 of Schedule 1: Where the person bringing an action to

recover land, or some person through whom he claims, has been in possession of the land, and while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of dispossession or discontinuance. 137 RHS at G

Procedural History:

Hoffman J dismissed action and declared defendant the freehold owner of the plot.

Plaintiff/Appellant’s arguments Defendant/Respondent’s arguments: Result: Judge’s reasoning:

Under the 1980 Act the person claiming possessory title must show either (1) discontinuance by paper owner followed by possession or (2) dispossession of the paper owner. Bottom 137

Dispossession- a person comes in and drives out the others Discontinuance- possessor goes out and is followed into possession by other persons Fry J in Rains v Buxton (1880) Top 138

Judge found that there was never discontinuance, but that defendant dispossessed the council. 138 LHS at B

If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess. A further requirement the alleged dispossessor must establish is to show that his possession has been ‘adverse’ within the meaning of the Act. 138 LHS at D

Adverse possession definition in Paragraph 8(1) of Schedule 1 of the Act 138 LHS at E

Ultimately the crucial question is whether the plot was in adverse possession of the defendant on 28 October 1973 (ie 12 years before proceedings) 138L at G

Possession is never ‘adverse’ if it is enjoyed under a lawful title (eg licence of the paper owner) 138L at G

Council’s special rule from Leigh v Jack In order to defeat a title by dispossession, acts must be done on the land which are inconsistent to the paper owner’s enjoyment of the land for the purposes for which he intended to use it. -Since the council intended to use it for future road, the possessor has

not dispossessed the council. Bottom 138 to top 139

In my judgement, it is too broad a proposition to suggest that an owner who retains a piece of land with a view for future use can never be treated as dispossessed, no matter how drastic the acts of dispossession of the person seeking to dispossess him. Top of 139 R

Slade LJ’s view of Leigh if a squatter is aware that the true owner has a purpose in mind for its use in the future, the court will require very clear evidence that the squatter has established factual possession and the requisite intention to exclude the world at large, including the owner with the paper title. If squatter intends to concede land back when owner needs it, then there is no intention. Bottom 139 to top 140L

Present Case Defendant was well aware that the council had acquired the plot in order to construct a road on it at some time in the future and in the meantime had no use for the land. 140 at E

I would, for my part, reject the submission that since the Act of 1980 there remains any ‘special rule’ which requires the words ‘possessed’ and ‘dispossessed’ to be given anything other than their natural and ordinary meaning 140 at G

Thus far, therefore, I conclude that (1) if by 28 October 1973 (ie 12 years before summons) the defendant had taken possession of the plot, his possession must have been adverse to the council; and (2) the question whether or not the defendant had taken possession of the plot by 28 October 1973 falls to be decided by reference to conventional concepts of possession and dispossession As opposed to departing from natural meaning 140 at H

Factual Possession Appears to be clear that by 28/10/73 the defendant had acquired complete and exclusive physical control of the plot: - He had secured a complete enclosure of the plot and its annexation to Dolphin Place - Any intruder could not have gained access to the plot except via Dolphin Place, unless he climbed the fence - Defendant had put a new lock on the gate and locked it - He had been dealing with the plot in such a way as might expect owners to deal with it - They had incorporated it into the garden of Dolphin Placeplanted plants and maintained garden. Plainly acquired factual possession by October 1973 142 R at B 140R at D

Animus Possidendi (intention to possess) The animus posseidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow As said by Slade J in Powell v McFarlane 140 R at F

A number of authorities indicate enclosure by itself prima facie indicates the requisite animus possidendi. Seddon v Smith- ‘strongest possible evidence of adverse possession’ 140 R at H

Council: but defendant knew that council had intention of using it as road access in the future. If defendant had stopped short of placing a new lock and chain on the gate, I might have been able to accept these submissions. 141L at E

In my judgment, the placing of a new lock and chain did amount to a final unequivocal demonstration of the defendant’s intention to possess the land. A requirement for possidendi Council must have realised that defendant was intending to keep everyone out, including themselves 141L at F

The letter of 18 December 1975 contains an express acknowledgment that the defendant knew he would be obliged to leave the plot if in the future the council required it for the purpose of constructing the road. Top 141R

What is required is not an intention to own or even an intention to acquire ownership, but an intention to possess.- an intention to possess for the time being to the exclusion of all other persons, including the owner with paper title. 141R at E

This is proven. Adverse possession had been acquired by 28/10/73 and had been held for 12 years. Appeal dismissed. Nourse J the true owner can only be dispossessed if the squatter performs sufficient acts and has a sufficient intention to constitute adverse possession 142L at G

Intention of the true owner is irrelevant in practice. One exception- if an intention is to make use of the land for a particular purpose at some future date is known to the squatter, then his knowledge may effect the quality of his own intention. 142R at B

Leigh v Jack: distinguished on the grounds that there was no enclosure

of the land by the defendant. His acts of possession were also trivial and the knowledge of the plaintiff’s intention prevented him from having sufficient intention. 142R at G

What can be learned from this case.

If land is registered under Land Transfer Act, have to sit on land adversely for 20 years If land is not registered, then 12 years (limitation Act)...