Home Information Cases Smith (Personal Representative of Hugh Smith (Deceased) & Ors v Molyneaux (2016)

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Smith (Personal Representative of Hugh Smith (Deceased) & Ors v Molyneaux (2016)


In a possession claim relating to a shack in which adverse possession was raised as a defence, the first-instance judge had been entitled to find that the defendant had occupied the shack with the claimant owners' permission, so that adverse possession did not apply.


The appellants appealed against a decision of the Court of Appeal of the Eastern Caribbean Supreme Court that the respondent had acquired title to the shack in which he lived by adverse possession.

The appellants were members of the Smith family, who had acquired the relevant land in about 1920. At that time, a woman (C) was one of the people living on the land. She was permitted to remain there under a sharecropping arrangement: she could live there and farm the land until it was required for development and she would give some produce to the Smiths. In about 1956, the respondent came to the property. He and C were married in 1963 and they lived in the shack. C died in 1992 and the respondent continued to occupy the shack. In 2006 and 2007, the appellants served notices to quit on him as they wished to develop the property. The respondent refused to leave, asserting that he had acquired title to the property by adverse possession. At the trial of the appellants' possession claim, the judge heard from a number of witnesses, including a member of the Smith family (L) and the respondent. L stated that he had had several meetings with the respondent after C's death at which he told him that, when the Smiths wanted to develop the property, he would have to leave. He accepted, however, that there had been no conversation in which the respondent was specifically given permission to occupy the shack. The judge described the relationship between the parties as one in which accommodations were granted to the respondent as occupier rather than as one of "open notorious exclusive adverse possession". He found that the evidence given by the appellants was substantially stronger than that given by the respondent and made a possession order. That decision was reversed by the Court of Appeal.

The main issue was whether the appellants had given permission to the respondent to occupy the shack, thereby defeating his claim to have acquired title by adverse possession.


A landowner could give permission orally or in writing and by words or conduct. Further, permission could be given unilaterally; it did not have to be acknowledged by the occupier. It was necessary to consider whether the judge made a finding of fact that the appellants gave the respondent permission to occupy the shack and, if he did, whether that finding was sufficient in law. The answer to both questions was yes. The judge said that there were "accommodations" in respect of the shack. Although he did not, in his judgment, set out the issues which he had to decide, he would have been well aware that a major issue at trial was whether the appellants had given the respondent permission to occupy the shack. His judgment should be read in that light. The word "accommodations" in that context had to mean informal permission in the terms set out in L's evidence. The further question was whether what L said amounted to the giving of permission. The respondent had not been given permission to stay in so many words, but that did not mean that no permission was given. Permission arose by inference from the fact that the respondent was told that he would have to leave when the appellants wanted to develop the property. It was a necessary part of what L was saying that the respondent had permission to remain until then, Colin Dawson Windows Ltd v King's Lynn and West Norfolk BC [2005] EWCA Civ 9 considered. Further, the judge had given sufficient reasons for his finding that the respondent had occupied the shack with the appellants' permission. Among other things, he said that he found the appellants' evidence much stronger than the respondent's. On the judge's findings, the appellants had not just acquiesced in the respondent's staying on the property after C's death and done nothing, as the respondent had argued. They had taken positive, overt steps to ensure that he knew about their plans for development and the fact that he would have to move when they decided to develop. As the judge had accepted the appellants' evidence as to the meetings with the respondent, there could be no question that permission to occupy the shack was not communicated to the respondent (see paras 24, 28-29, 34-35, 38-40, 44-46 of judgment).

Privy Council (BVI)
Lord Neuberger, Lord Kerr, Lord Reed, Lord Hughes, Dame Mary Arden
Judgment date
21 November 2016

Practice areas