J A Pye (Oxford) Ltd and another v Graham and another PDF

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This is an important case law for possession....

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Date and Time: Friday, 10 September, 2021 11:07:00 AM HKT Job Number: 152560445

Document (1) 1. J A Pye (Oxford) Ltd and another v Graham and another [2003] 1 AC 419, [2003] 1 AC 419 Client/Matter: -NoneSearch Terms: [2003] 1 AC 419 Search Type: Natural Language Narrowed by: Content Type HK Cases

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J A Pye (Oxford) Ltd v Graham Overview | [2002] UKHL 30, | [2003] 1 AC 419, & CR D44, [2003] 1 P & CR 128, [2002] 28 EGCS 129,

| [2002] 3 All ER 865, | [2002] 3 WLR 221, [2002] 2 P | (2002) Times, 5 July, | [2002] All ER (D) 67 (Jul)

J A Pye (Oxford) Ltd and another v Graham and another [2003] 1 AC 419 [2002] UKHL 30 House of Lords Lord Bingham of Cornhill, Lord Mackay of Clashfern, Lord Browne-Wilkinson, Lord Hope of Craighead and Lord Hutton 2002 March 20, 21; July 4 Limitation of action — Land, recovery of — Possessory title — Licensee remaining in occupation on determination of licence — Land owner refusing requests for renewal — Whether occupiers' continuation of existing limited use evidencing intention to possess — Whether extinction of title by adverse possession amounting to deprivation of possession — Limitation Act 1980 (c 58), s. 15(1) , Sch. 1, paras 1, 8 — Human Rights Act 1998 (c 42), s. 3 , Sch. 1, Pt II, art 1 In February 1983 the claimants entered into a written grazing agreement with G in respect of 25 hectares of their land which adjoined G's farmland. The land was fully enclosed by hedges and was only accessible, save on foot, through a gate kept padlocked by G. In December 1993 the agreement ended and the claimants required G to vacate the land, refusing his requests to renew the agreement and indicating that they did not want the land to be grazed while they applied for planning permission for its development. G nevertheless continued to use the land and in August 1984 he completed a cut of hay which he had been permitted on payment to take. In 1984 and 1985 his further requests to renew the agreement and take cuts of hay were not answered, but he continued to occupy and maintain the land which he farmed as a unit with his own adjoining land. In June 1997 G registered cautions at the Land Registry against the claimants' title to the land on the basis that he had obtained title by adverse possession. In August 1997 the claimants applied to the Land Registry to warn off the cautions and in April 1998 issued an originating summons seeking their cancellation. In January 1999 the claimants brought possession proceedings against the defendants, the widow and personal representatives of G, who had died in 1998, contending that while G continued to express hope that a new agreement would be forthcoming he had shown an intention to submit to their possession which negated any intention to possess for the purposes of section 15(1) of and paragraphs 1 and 8(1) of Schedule 1 to the Limitation Act 19801. The judge dismissed the summons and the action holding, inter alia, that, since G had enjoyed factual possession of the land from January 1984 and his intention to possess and adverse possession took effect from September 1984, the claimants' title had been extinguished and the defendants were entitled to be registered as proprietors of the land at the Land Registry. On the claimants' appeal following implementation of the Human Rights Act 19982 an issue arose as to the application of, in particular, section 3(1) of and article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms in Schedule 1 thereto to the interpretation of the 1980 Act. The Court of Appeal, allowing the appeal, held that, although the 1998 Act had retrospective effect, those provisions were of no application, that G continued a limited use of the land after termination of the agreement in the hope that the claimants would in future agree to authorise his occupation, that the requisite 1 Limitation Act 1980, s. 15(1), Sch. 1, paras 1, 8(1): see post, para 25.

Page 3 of 23 J A Pye (Oxford) Ltd and another v Graham and another [2003] 1 AC 419 2 Human Rights Act 1998, s. 3(1): "So far as it is possible to do so … legislation must be read and given effect in a way which is compatible with the Convention rights."

Sch 1, Pt II, art 1: "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law."

[*420] intention to possess the land had not therefore been shown and that, accordingly, the claimants had not been dispossessed. On the defendants' appeal—

Held, allowing the appeal, (1) that for the purposes of the 1980 Act the words "possession" and "dispossession" bore their ordinary meaning so that "possession", as in the law of trespass or conversion, connoted a sufficient degree of occupation or physical control coupled with an intention to possess and "dispossession" occurred where the squatter assumed "possession" as so understood; but that notions that the squatter should be required to oust or exclude the paper title owner as well as all others or to act inconsistently with his user or adversely towards him had no place in the 1980 Act and the phrase "adverse possession" referred to in paragraph 8(1) was, on a proper construction, directed not to the nature of the possession but to the capacity of the squatter; that to establish factual possession the squatter had to show absence of the paper owner's consent, a single and exclusive possession and such acts as demonstrated that in the circumstances, in particular the nature of the land and the way it was commonly used, he had dealt with it as an occupying owner might normally be expected to do and that no other person had done so; that the requisite intention was, not to own or acquire ownership, but to possess and on one's own behalf in one's own name to exclude the world at large, including the paper title owner, so far as was reasonably possible, and that it was not, therefore, inconsistent for a squatter to be willing, if asked, to pay the paper title owner while being in possession in the meantime (post, paras 1, 3, 32-38, 40-46, 67, 69-71, 74, 76-78). (2) That, on the claimants' concession that the 1998 Act did not have retrospective effect, since the language of the 1980 Act was not ambiguous the common law principle of interpretation that legislation should be construed conformably with the Convention did not apply (post, paras 1, 3, 65, 67, 74). (3) That, on the facts found by the judge and having regard to the evidence as a whole, since G was in factual possession of the land from January 1984 onwards and from September 1984 onwards had used it as his own in a way normally to be expected of the owner, and since the claimants had done nothing on the land and were effectively excluded from it throughout that period, G had manifestly intended to assert possession; and that, accordingly, he had established possessory title (post, paras 1, 3, 41, 56-64, 66-67, 72, 74-75, 80). Powell v McFarlane (1977) 38 P & CR 452, Buckinghamshire County Council v Moran [1990] Ch 623, CA and Ocean Estates Ltd v Pinder [1969] 2 AC 19, PC approved. R v Secretary of State for the Environment, Ex p Davies (1990) 61 P & CR 487, CA disapproved. Decision of the Court of Appeal [2001] EWCA Civ 117; [2001] Ch 804; [2001] 2 WLR 1293 reversed. The following cases are referred to in the opinions of their Lordships: Buckinghamshire County Council v Moran (1988) 86 LGR 472; [1990] Ch 623; [1989] 3 WLR 152; [1989] 2 All ER 225, CA Culley v Doe d Taylerson (1840) 11 Ad & E 1008 Lambeth London Borough Council v Blackburn (2001) 82 P & CR 494, CA

Page 4 of 23 J A Pye (Oxford) Ltd and another v Graham and another [2003] 1 AC 419 Leigh v Jack (1879) 5 Ex D 264, CA Littledale v Liverpool College [1900] 1 Ch 19, CA Nepean v Doe d Knight (1837) 2 M & W 894 Ocean Estates Ltd v Pinder [1969] 2 AC 19; [1969] 2 WLR 1359, PC Paradise Beach and Transportation Co Ltd v Price-Robinson [1968] AC 1072; [1968] 2 WLR 873; [1968] 1 All ER 530, PC Powell v McFarlane (1977) 38 P & CR 452 R v Kansal (No 2) [2001] UKHL 62; [2002] 2 AC 69; [2001] 3 WLR 1562; [2002] 1 All ER 257, HL(E) R v Secretary of State for the Environment, Ex p Davies (1990) 61 P & CR 487, CA

[*421] Rains v Buxton (1880) 14 Ch D 537 Treloar v Nute [1976] 1 WLR 1295; [1977] 1 All ER 230, CA Wallis's Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94; [1974] 3 WLR 387; [1974] 3 All ER 575, CA Wimpey (George) & Co Ltd v Sohn [1967] Ch 487; [1966] 2 WLR 414; [1966] 1 All ER 232, CA The following additional cases were cited in argument: Allan v Liverpool Overseers (1874) LR 9 QB 180 Application No 11949/86 v United Kingdom (1988) 10 EHRR 149 Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402, HL(Sc) Bramelid and Malmström v Sweden (1982) 5 EHRR 249 Burroughs v M'Creight (1844) 1 Jo & Lat 290 Butcher v Butcher (1827) 7 B & C 399 Cadija Umma v S Don Manis Appu [1939] AC 136, PC Cobham v Frett [2001] 1 WLR 1775, PC Colchester Borough Council v Smith [1991] Ch 448; [1991] 2 WLR 540; [1991] 2 All ER 29 Coverdale v Charlton (1878) 4 QBD 104, CA Family Housing Association v Donnellan (unreported) 12 July 2001, Park J Fowley Marine (Emsworth) Ltd v Gafford [1968] 2 QB 618; [1968] 2 WLR 842; [1968] 1 All ER 979, CA Garland v British Rail Engineering Ltd [1983] 2 AC 751; [1982] 2 WLR 918; [1982] 2 All ER 402, HL(E) Håkansson and Sturesson v Sweden (1990) 13 EHRR 1 Hills (Patents) Ltd v University College Hospital Board of Governors [1956] 1 QB 90; [1955] 3 WLR 523; [1955] 3 All ER 365, CA Holy Monasteries v Greece (1994) 20 EHRR 1 Hounslow London Borough Council v Minchinton (1997) 74 P & CR 221, CA Hunter v Canary Wharf Ltd [1997] AC 655; [1997] 2 WLR 684; [1997] 2 All ER 426, HL(E) James v United Kingdom (1986) 8 EHRR 123

Page 5 of 23 J A Pye (Oxford) Ltd and another v Graham and another [2003] 1 AC 419 Jones v Williams (1837) 2 M & W 326 Kirby v Cowderoy [1912] AC 599, PC Lodge v Wakefield Metropolitan City Council [1995] 2 EGLR 124, CA Lord Advocate v Lord Blantyre (1879) 4 App Cas 770, HL(Sc) Lowsley v Forbes (trading as L E Design Services) [1999] 1 AC 329; [1998] 3 WLR 501; [1998] 3 All ER 897, HL(E) Marckx v Belgium (1979) 2 EHRR 330 Marshall v Taylor [1895] 1 Ch 641, CA Morrice v Evans The Times, 27 February 1989; Court of Appeal (Civil Division) Transcript No 155 of 1989, CA Parker v British Airways Board [1982] QB 1004; [1982] 2 WLR 503; [1982] 1 All ER 834, CA Pavlades v Ryesbridge Properties Ltd (1989) 58 P & CR 459 Prudential Assurance Co Ltd v Waterloo Real Estate Inc [1999] 2 EGLR 85, CA R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335; [1999] 3 WLR 160; [1999] 3 All ER 385, HL(E) R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696; [1991] 2 WLR 588; [1991] 1 All ER 720, HL(E) R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115; [1999] 3 WLR 328; [1999] 3 All ER 400, HL(E) Ramnarace v Lutchman [2001] UKPC 25; [2001] 1 WLR 1651, PC Randall v Stevens (1853) 2 El & Bl 641 Red House Farms (Thorndon) Ltd v Catchpole [1977] 2 EGLR 125, CA Seddon v Smith (1877) 36 LT 168

[*422] Solling v Broughton [1893] AC 556, PC Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35 Street v Mountford [1985] AC 809; [1985] 2 WLR 877; [1985] 2 All ER 289, HL(E) Stubbings v United Kingdom (1996) 23 EHRR 213 Sze To Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232, PC Tecbild Ltd v Chamberlain (1969) 20 P & CR 633, CA Van Droogenbroeck v Belgium (1982) 4 EHRR 443 West Bank Estates Ltd v Arthur [1967] 1 AC 665; [1966] 3 WLR 750, PC Williams Bros Direct Supply Ltd v Raftery [1958] 1 QB 159; [1957] 3 WLR 931; [1957] 3 All ER 593, CA

APPEAL from the Court of Appeal The defendants, Caroline Graham (in her personal capacity and as personal representative of the late Michael Graham) and Charles Denton (as personal representative of the late Michael Graham), appealed, by leave of the House of Lords (Lord Nicholls of Birkenhead, Lord Hutton and Lord Hobhouse of Woodborough) granted on 24 July

Page 6 of 23 J A Pye (Oxford) Ltd and another v Graham and another [2003] 1 AC 419 2001, from the decision of the Court of Appeal (Mummery and Keene LJJ and Sir Martin Nourse) of 6 February 2001 allowing an appeal by the claimants, J A Pye (Oxford) Ltd and J A Pye (Oxford) Land Ltd, from the order of Neuberger J of 4 February 2000 whereby he dismissed (1) their summons for rectification of titles numbered BK 139894 and BK 152263 at the Land Registry by the cancellation of the cautions registered in the deceased's favour in the proprietorship registers of those titles and (2) their action for possession of land at Henwick Manor, Thatcham, Newbury, Berkshire, occupied by the defendants. The facts are stated in the opinion of Lord Browne-Wilkinson.

Kim Lewison QC, Martin Dray and Jane Mulcahy for the defendants. The basic principle of the law of limitation is that a claimant cannot bring proceedings for the recovery of land more than 12 years after his cause of action accrued: see Limitation Act 1980, section 15(1) and Schedule 1. The Act gives effect to the policy that where the owners allow others to remain in possession of land without acknowledging their title or paying rent their paper title should eventually become extinguished: see Ramnarace v Lutchman [2001] 1 WLR 1651. The cause of action does not accrue until the land is in the possession of a person in whose favour the limitation period can run. The critical question is therefore: at what point could the claimants have first sued the defendants for possession? Possession for this purpose is single and exclusive: see section 15(6); Hills (Patents) Ltd v University College Hospital Board of Governors [1956] 1 QB 90, and Allan v Liverpool Overseers (1874) LR 9 QB 180. If, therefore, A is in possession of land no one else, save a joint possessor, can be. Dispossession and discontinuance occur where one person has been in possession and another person takes it to the exclusion of all others. Where a licensee remains in occupation after the expiry of the licence his possession becomes adverse: see Colchester Borough Council v Smith [1991] Ch 448. Accordingly, once the licences granted to the defendants expired the claimants' cause of action accrued and time began to run for the purposes of the limitation period. There is no need to show that the squatter intends to oust the paper owner: see the Real Property Limitation Acts 1833 and 1847; Treloar v Nute [1976] 1 WLR 1295; Rains v Buxton (1880) 14 Ch D 537; Paradise Beach and Transportation Co Ltd v Price-Robinson [1968] [*423] AC 1072; Culley v Doe d Taylerson (1840) 11 Ad & E 1008; Nepean v Doe d Knight (1837) 2 M & W 894; Martin Dockray, "Adverse Possession and Intention" [1982] Conv 256; O W Holmes, The Common Law (1881), Lecture VI, pp 216, 220; Pollock & Wright, "An Essay on Possession in the Common Law" (1888), pp 11-16 and John Lightwood, "A Treatise on Possession of Land" (1894), pp 10, 20-26. Decisions to the contrary are erroneous: see Littledale v Liverpool College [1900] 1 Ch 19; Williams Bros Direct Supply Ltd v Raftery [1958] 1 QB 159; George Wimpey & Co Ltd v Sohn [1967] Ch 487; Tecbild Ltd v Chamberlain (1969) 20 P & C R 633 and Leigh v Jack (1879) LR 5 Ex D 264. Possession has two elements: factual possession and intention to possess. Factual possession depends on the nature of the land and the manner in which land of that character is commonly used and enjoyed: see Red House Farms (Thorndon) Ltd v Catchpole (1977) 2 EGLR 85; Cadija Umma v S Don Manis Appu [1939] AC 136 and Kirby v Cowderoy [1912] AC 599. Factual possession requires physical control of the land by the squatter on his own behalf: see Jones v Williams (1837) 2 M & W 326; Lord Advocate v Lord Blantyre (1879) 4 App Cas 770 and Coverdale v Charlton (1878) 4 QBD 104. The judge applied the correct test, namely, whether the alleged possessor has been dealing with the land as an occupying owner might have been expected to deal with it and that no one else has done so: see Powell v McFarlane (1977) 38 P & CR 452. The second element of possession is the intention to possess: see Powell's case. It is not obvious why a squatter must satisfy that additional element, and it may be unnecessary for him to do so: see Lambeth London Borough Council v Blackburn (2001) 82 P & CR 494; the 1833 and 1847 Acts, Culley v Doe d Taylerson 11 Ad & E 1008; Paradise Beach and Transportation Co Ltd v Price-Robinson[1968] AC 1072 and Burroughs v M'Creight (1844) 1 Jo & Lat 290. If, however, such intention is relevant, it is that intention and not an intention to own which must be shown and it may be objectively established by his acts on the land: see Lambeth London Borough Council v Blackburn 82 P & CR 494; Buckinghamshire County Council v Moran (1988) 86 LGR 472; [1990] Ch 623; Marshall v Taylor [1895[ 1 Ch 641and R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335. It has been said that the squatter must show that he intended to exclude the world at large, so far as it is reasonably practicable to do so: see Powell v McFarlane 38 P & CR 452. However, until the limitation period has expired the squatter is not entitled to exclude the true owner: see Martin Dockray "Adverse Possession and Intention" [1982] Conv 256. The suggestion that a squatter needs an intention to own (see Littledale v Liverpool College [1900] 1 Ch 19) is erroneous.

Page 7 of 23 J A Pye (Oxford) Ltd and another v Graham and another [2003] 1 AC 419 A willingness to possess the land with the paper owner's permission does not negate the intention to possess: see Lodge v Wakefield Metropolitan City Council [1995] 2 EGLR 124 and Ocean Estates Ltd v Pinder [1969] 2 AC 19. Therefore a willingness to pay rent will also not negate the intention. Accordingly, once the grazing licence expired and the hay cutting licence was spent the claimants' possession became adverse. The paper owner's intention is irrelevant to the question whether the squatter has factual possession, nor is it relevant to the squatter's intention to possess for the time being; at best it indicates a willingness to give up possession in the future if asked to do so by the paper owner. Accordingly, [*424] the claimants' future plans for the land cannot preclude acquisition of the title by adverse possession: see Buckinghamshire County Council v Moran [1990] Ch 623. The Human Rights Act 1998 does not have a general retrospective effect and does not provide a ground for appeal against a trial conducted before the Act came into force: see R v Kansal (No 2) [2002] 2 AC 69. Even if article 1of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms applies it is the defendants, not the claimants, who can seek the benefit of peaceful enjoyment of the land (see Holy Monasteries v Greece (1994) 20 EHRR 1) by reason of having acquired title before the Human Rights Act 1998 was passed. In any event the right protected under article 1 is a less fundamental right than other rights guaranteed by the Convention and courts are slow to interfere where a question of expropriation of property arises in disputes between individuals: see Bramelid and Malmström v Sweden (1982) 5 EHRR 249; Application No 11949/86 v United Kingdom (1988) 10 EHRR 149 and Family Housing Association v Donnellan (unreported) 12 July 2001. A transfer of property without compensation, though normally constituting a disproportionate interference with property rights (see James v United Kingdom (1986) 8 EHRR 123) does not necessarily infringe the Convention. Acquisition of land by adverse possession is not incompatible with the Convention: see Stubbings v United Kingdom (1996) 23 EHRR 213. Jonathan Gaunt QC, David Pannick QC and Jonathan Small for the claimants. "Possession" as used in the Limitation Act 1980 is a term of art: see Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402 and Lowsley v Forbes (trading as L E Design Services) [1999] 1 AC 329. Thus, to invoke the 1980 Act, the squatter has to prove (a) that ...