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National Westminster Bank PLC v Robin Ashe (2008)

Summary

The meaning given to "adverse possession" in JA Pye (Oxford) Ltd v Graham (2002) UKHL 30, (2003) 1 AC 419 was of general application to actions for the recovery of land, including land that was mortgaged, such that the failure of a mortgagee bank to enforce its right to possession of a property occupied by mortgagees who failed to make any mortgage payments over a period that exceeded 12 years meant that the mortgage had been extinguished by the operation of the Limitation Act 1980.

Facts

The appellant bank (N) appealed against a decision ((2007) EWHC 494 (Ch)) determining that a mortgage in its favour over a property had been extinguished by the operation of the Limitation Act 1980. A married couple (C) had granted a mortgage to N over their registered leasehold interest in the property to secure the husband's liabilities on his accounts with N. N made formal demands for payment but took no steps to protect its legal position. Some payments were made but the husband was then made bankrupt. N informed the husband that he remained liable to it on his account that was secured by the mortgage and that it would accept monthly instalments over a 10-year period, failing which N would continue to await an eventual sale of the property to repay his liabilities. A number of years passed during which there was intermittent correspondence between N and the husband in which N made formal demands for payment. No further payments were paid and no legal proceedings were issued by N to enforce its rights. Legal proceedings were commenced by the husband's trustee in bankruptcy, the respondent (T). T sought a declaration that, given that the last payment to N had been made over 12 years previously, N's legal charge on the property had been extinguished. A judge held that C had been in adverse possession of the property and that the mortgage in favour of N had been extinguished by s.15 and s.17 of the Act. N contended that C's possession of the property had been with its express or implied consent so that their possession could not be treated as adverse possession and that its right of action for possession had not accrued 12 years before T's action commenced.

Held

The requirement of adverse possession had to be applied in accordance with the exposition of it in JA Pye (Oxford) Ltd v Graham (2002) UKHL 30, (2003) 1 AC 419, Pye applied. Adverse possession referred to the capacity of a person in possession of land and not to the nature of that person's possession. Possession had to be given its ordinary meaning. C were in ordinary possession of the property in the period following the grant of the mortgage and after the last payment to N. That possession was exclusive possession. N had a right to possession of the property, but it was not in possession of the property. C were prima facia in adverse possession of the property at the material time, being the persons in whose favour time could run under the Act and N's right of action be treated as accruing. The crucial issue was whether any good reason had been shown for treating C other than in ordinary possession of the property. There was no such reason. There was no evidence that C applied for, or were positively given, express permission by N to remain in possession of the property after the legal charge or after the last payment made in respect of the mortgage debt. Although N had never enforced its right to possession against C it did not necessarily follow that N had impliedly granted them permission to remain in possession of the property so as to prevent them from being in adverse possession within para.8 of Sch.1 to the Act. N had simply chosen not to do anything to enforce its right of action. C did not need N's permission to possess the property. Their possession of the property was referable to their own registered legal title to the property. It was not derived from N's title to the property. Accordingly C had been in adverse possession for a period of over 12 years and the judge was right to grant the declaration that N's legal charge was extinguished by reason of the operation of s.15 and s.17 of the Act.

Appeal dismissed

Court of Appeal
Mummery LJ, Hughes LJ, David Richards J
Judgment date
8 February 2008
References

LTL 8/2/2008 : (2008) NPC 14 

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