Colin Dawson Windows Ltd v (1) King’s Lynn & West Norfolk Borough Council (2) Winifred Howard (2005)
It was natural to draw an inference of permission to remain on land, where a person was in possession pending negotiations for the grant of an interest in that land. In the instant case, there was an implied licence that the respondent company was being permitted to remain on the land in question pending completion of negotiations for its purchase and accordingly it could not establish a full 12 years' adverse possession.
The appellant (H) appealed against a decision allowing a claim made by the respondent (D) for adverse possession of land. The land was part of a site used by D as a car park. H alleged that she had lived with her husband in one of the terrace houses that stood on the site until demolition in 1958. In response to D's claim, H counterclaimed by reference to a paper title to that property. The judge found that H had proved her paper title to part of the site but had lost her title to D by the time of her counterclaim. He found that D had established the necessary intention to possess, and that such possession was adverse and did not depend on an implied licence to remain alleged by H to have arisen from negotiations for the purchase of the land by D. H submitted that the judge was wrong to decline to infer, from the correspondence between the parties as to the purchase of the land by D, an implied licence to remain at least until negotiations for the purchase of the land drew to a close, sometime just within 12 years before the counterclaim. D contended that the judge was wrong to find that the paper title had been established and there was no implied licence as alleged.
(1) There was no uncertainty in H's identification in 1990 of the relevant property as her former home. The judge was correct that H had proved that the house she and her husband had lived in lay within the area now occupied by D's car park. H had proved her paper title to part of the site. (2) In deciding there was no implied licence to remain, the judge was wrong to find assistance in JA Pye (Oxford) Ltd & ors v Graham & anr (2002) UKHL 30 , (2002) 28 EG 129 (CS) distinguished. He was also mistaken in characterising the facts of the instant case as in any way demonstrating or dependent on a request to vacate. The essence of the decision in Bath & North East Somerset District Council v Nicholson (2002) 10 EG 156 (CS) was that it was natural to draw an inference of permission where a person was in possession pending negotiations for the grant of an interest in that land. In the instant case, the implication of the correspondence was that D could remain on H's property only if negotiations proceeded for its sale to them, Nicholson applied and BP Properties Ltd v Buckler Independent, August 18, 1987 considered. A reasonable person in H's or D's position would conclude that D was being permitted to remain on the land pending completion of the negotiations. Accordingly, D could not establish a full 12 years' adverse possession.