Mitchell v Watkinson (2013)
A cricket club had had a tenancy without a lease in writing, meaning that the landlord's right of action for possession accrued on the determination of the tenancy in accordance with the Limitation Act 1980 Sch.1 Pt I para.5. Although the club had entered into a written tenancy agreement regarding the land, that agreement had not been with the freeholder; the fact that the freeholder had subsequently accepted rent payments, thus granting a lease by implication from conduct on the same terms as the written agreement, did not suffice to make the written agreement the relevant lease in writing.
The claimant (M) sought possession of land, occupation of which was asserted by the defendant representatives (W) of a cricket club.
Before 1947, M's father-in-law (X) had owned an area of land. In early 1947 he transferred the land to his son (L). However, in June 1947 X entered into a written tenancy agreement with trustees of the cricket club. The trustees initially paid rent to X, but X told them that the land had been transferred to L and they paid rent to him thereafter. The last trustee died in June 1974; the tenant thereafter was the representative of his estate. The last rent payment was made on October 8, 1974. There were several sections to the land. In 1975 L sold the middle section to members of the club. L died in 2009; M became the registered proprietor of the southern section of the land, and sought possession.
W asserted that the club had adverse possession of the southern section, arguing that (1) the tenancy had arisen without a lease in writing, so that the Limitation Act 1980 Sch.1 Pt I para.5 applied; (2) the tenant had been in possession of the southern section for the purposes of Sch.1 para.8 for 12 years from the last rent payment on October 8, 1974, the date on which a right of action for possession would have accrued under Sch.1 para.5.
(1) The June 1947 agreement had created a contract of tenancy between X as landlord and the trustees as tenants. That was effective between the parties to the agreement even though X had not had title to the land; however, it was not binding on anyone not a party to it. Accordingly, L, who had already become the freeholder of the land, had not been contractually bound by it. However, there had been a relationship of landlord and tenant between L and the trustees from 1947, created by the payment and acceptance of rent. Accordingly, by implication from conduct, L had granted the trustees a tenancy. The clear implication of the parties' conduct was that the terms of the tenancy were those set out in the June 1947 agreement. However, the fact that the terms of the tenancy were the same as those set out in the written agreement did not suffice to make the written agreement the relevant lease in writing. It followed that the case was within Sch.1 para.5, Long v Tower Hamlets LBC  Ch. 197 applied (see paras 38-42, 46, 50 of judgment). (2) Schedule 1 para.5 was subject to Sch.1 para.8. The question which arose was whether the tenant of the southern section had continued in possession of that land for 12 years from October 8, 1974. Focusing on the actual legal position, the tenant had been in possession for that time. There was no evidence that the tenant had, on that date or when the club bought the middle section in 1975, given up possession of the southern section. Further, the law readily ascribed possession to the person legally entitled to possession, such as a tenant. However, for the purposes of para.5 and para.8, the court had to consider the position on the basis that the tenancy had ended on that date. Accordingly, it could not ascribe possession to someone who had previously been the tenant. The court approached cases where a tenancy was treated as having determined differently from the way it approached cases where the question was whether the owner had been dispossessed and whether a trespasser had taken possession, Williams v Jones  EWCA Civ 1097,  3 E.G.L.R. 69 followed. In 1990 there had been an acknowledgement of L's title. The court therefore focused on whether there had been 12 years' possession in the period from October 8, 1974 to 1990. The tenant had been in possession of the southern section immediately before October 8, 1974 through its licensee, the club. There was no evidence that anything changed in relation to the southern section as a result of the 1975 transfer of the middle section. There was no physical feature after 1974 separating the middle and southern sections: the sections' appearance was that they were occupied together by the club. Further, there was oral evidence of use of the southern section by the club. Accordingly, the tenant had been in adverse possession of the southern section for 12 years from 1974. L's title had therefore been extinguished on October 8, 1986 and the tenant had become entitled to a possessory title to that land (paras 61-76).
Judgment for defendants
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