Tower Hamlets London Borough Council v Barrett and another

Tenancy — Appellants acquiring tenancy and then freehold of public house Appellants using fenced land adjoining property — Whether appellants acquiring adverse title to land — Appeal allowed From 1977, the appellants were the tenants of a public house (the property) under an annual tenancy. In 1993, they became the freeholders in possession. The respondent council were the statutory successors to the Greater London Council (GLC) as the registered proprietors of an area to the west of the property (the disputed land) to which the appellants claimed to have acquired title by adverse possession. All the buildings on, and in the immediate vicinity of, the disputed land had been demolished. The GLC had enclosed the land with metal fencing and had erected wooden props to support the western wall of the property and to provide protection for its brickwork. At that time, the brewery was the appellants’ landlord as the registered proprietor of the freehold of the public house. The appellants believed that the disputed land was included in the letting. They removed part of the metal fencing, replacing it with a lockable gate to which only they had the keys and used the area for storage. In around 1994, they obtained planning permission to erect a two-storey extension on the disputed land. Building works were begun, but once the respondents had pointed out that the appellants were not the registered proprietors of the area, the appellants stopped the works and re-erected the metal fence. They then applied to be registered as the proprietors of the disputed land on the basis that they had acquired title by adverse possession. The respondents subsequently obtained a possession order against the appellants, who appealed. Held: The appeal was allowed. The appellants had acquired possessory title to the freehold of the disputed area and, in the light of section 75 of the Land Registration Act 1925, the respondents held the registered freehold title to the area on trust for the appellants. On the evidence, the appellants had enjoyed possession of the disputed land since 1977 and the presence and the purpose of the props erected on the land did not change that view: JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419 applied. Although the paper owner’s title to the disputed area had been acknowledged between 1980 and 1985, when the appellants’ landlord and the GLC had been negotiating over the use of the land, it did not affect the accrual of time for adverse possession under section 29(2) of the Limitation Act 1980, since the acknowledgement was not made by the squatters but by the squatters’ landlord: Batt v Adams [2001] 2 EGLR 92; [2001] 32 EG 90 considered. Although possessory title to the disputed land had vested in the landlord in 1990, it did not assist the respondents in their claim for possession, since the area had been included in the 1993 transfer of the freehold of the public house to the appellants. In any event, the appellants’ tenancy of the area still subsisted: Kingsmill v Millard (1855) 11 Exch 313 and Smirk v Lyndale Developments Ltd [1975] 2 EGLR 43; (1974) 235 EG 751 considered. The Human Rights Act 1998 did not justify a different conclusion because it had no effect in cases where 12 years’ adverse possession had fully accrued prior to the Act coming into force: Beaulane Properties Ltd v Palmer [2005] EWHC 1460 (Ch); [2005] 14 EG 129 (CS) considered. John McDonnell QC and Timothy Sisley (instructed by Golkorn Mathias Gentle) appeared for the appellants: James Harris and Genevieve Screeche-Powell (instructed by the legal department of Tower Hamlets Borough Council) appeared for the respondents. Eileen O’Grady, barrister