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IN THE SUPREME COURT OF JUDICATURE CCRTF 96/1043/C

IN THE COURT OF APPEAL (CIVIL DIVISION )

(HIS HONOUR JUDGE CRUSH )

Royal Courts of Justice

Strand

London W2A 2LL

Tuesday, 15th July 1997

B e f o r e

LORD JUSTICE SIMON BROWN

LORD JUSTICE HENRY

LORD JUSTICE MUMMERY

RICHARD BURNS

Respondent

v.

(1) GEORGE ANTHONY

(2) EUGENIA ANTHONY

Appellant

(Computer Aided Transcription of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

MR CHRISTOPHER STONER (instructed by Messrs Streeter Marshall, Croydon CR9 2UU) appeared on behalf of the Appellant/Second Defendant.

MR LAWRENCE CAUN (instructed by Messrs Dzimitrowicz York, Croydon CR0 1DH) appeared on behalf of the Respondent/Plaintiff.

J U D G M E N T

(As approved by the Court )

©Crown Copyright

LORD JUSTICE SIMON BROWN: This is the second defendant's appeal against the judgment of His Honour Judge Crush in the Croydon County Court on 29th May 1996 upholding the plaintiff's claim to freehold ownership by virtue of adverse possession of a piece of land at Thornton Heath in Surrey ("the disputed land"). The second defendant had the paper title to the disputed land, a title which she held jointly with her husband, the first defendant, until his death after these proceedings were brought but before they were heard. It will be convenient hereafter to use the term "defendants" to denote either Mr or Mrs Anthony or both of them.

The essential facts giving rise to this appeal are best explained by reference in part to a plan which formed part of the pleadings in the action and which now, in annotated form, I incorporate into this judgment. We are concerned here with three properties: 83 Thornton Road (hereafter "83"), 85 Thornton Road (hereafter "85") and 60 Whitehall Road (hereafter "60"). Those roads and numbers are shown on the plan. By March 1968 all three properties were in the freehold ownership of a family called Croft, who operated a car sales business centred on 85. The defendants first arrived on the scene on 4th April 1968, when they moved into 83 as sub-tenants. The following year, on 26th February 1969, they became head tenants of 83 under a lease which expressly excluded from the demised premises what was then called "the garden" and is now the disputed land. Later in 1969 the Crofts concreted over the open ground behind all three houses, namely the disputed land hatched and marked "1" on the plan, and the rear gardens respectively of 85 and 60, respectively marked "2" and "3" on the plan. The area on the plan between the disputed land and the building line of 83 consisted, I should explain, of a lean-to conservatory across the width of that property. The whole concreted area, let it be made clear at once, was substantially used for the car sales business, in particular for the parking of cars. At the same time as the yard was concreted over, the Crofts blocked off the passageway or alleyway (shown on the plan running parallel to Thornton Road), which had previously provided an alternative access between that road and the disputed land.

On 7th September 1981, after the defendants had already been in occupation of 83 as tenants for over a decade, they purchased from the Crofts the entire freehold of that property, including therefore the disputed land. As, however, the Judge ultimately found, it was not until after the dispute as to ownership arose, a further 12 years on, that the defendants came to realise that they had indeed been enjoying the paper title to the disputed land over that period.

Meantime, on 19th March 1987, the plaintiff had purchased 85 and 60 (save, that is, for the house and northern part of 60, which had by then been sold to someone else) together with -- and this too is important -- the disputed land at the rear of 83. In short, the Crofts during the 1980s appear to have sold off the disputed land to both parties.

Finally, in November 1993, following the defendants' decision to sell 83, discussions took place between them and the plaintiff as to the ownership of the disputed land, discussion which turned into dispute, and in turn led to these proceedings in which the plaintiff claimed a declaration that he was entitled to the disputed land by adverse possession and in which the defendants counterclaimed for a declaration that they remain legal owners.

So much for the details of paper ownership of the relevant areas of land and the chronology of events. Next I must turn to the Judge's factual findings as to the nature and extent of the use made of the disputed land by the respective parties. First, the defendants. Essentially what it comes to is this. On sunny days the defendants would sit out on deck chairs. They would also hang out their washing. Their daughter, Elena (aged about two when the defendants first moved into 83 in 1968), would play hopscotch or play ball with friends or skip or play with a pile of sand. The sand was in area 3, ie the yard part of 60. There was also a gate from area 3 into Broughton Road which the defendants would use to reach their car which they invariably parked there. At least some of these activities, therefore, extended not merely over the disputed land, but into or across the rest of the undivided concreted yard as well. In addition, the defendants on occasions kept a dustbin on the disputed land and went out through their conservatory to put rubbish into it. The Judge found, however, that "the dustbin was put there by consent occasionally but not habitually". He further found that when the plaintiff was being shown the disputed land as part of the premises he was acquiring in 1987 he was told by John Croft, the son-in-law of the surviving title holder to the Croft properties, that the defendants were allowed to keep a dustbin there.

It is important to note that after the defendants purchased the freehold of 83 in 1981 they continued to use the concreted yard in just the same manner as they had before. That perhaps is hardly surprising, given that, as already stated, they had not appreciated that by the purchase they had now actually acquired the disputed land, the very area which previously had been specifically excluded from their tenancy occupation. As the Judge found,

"Nothing the Defendants did after the conveyance was different from their previous use."

What then of the plaintiff's use of the disputed land? This is simply told. The Judge expressed himself convinced by John Croft's evidence that, far from making only "occasional" use of the disputed land (as the defendants had asserted):

"I used to park on that disputed part all the time. I used to use that piece of land all the time, especially if I had anything I was embarrassed with and wanted to hide."

It is indeed perfectly clear that both John Croft and, after he had sold the car business to the plaintiff, the plaintiff himself regularly used to park one or two cars right up to within a yard or so of the defendant's conservatory. In short, the disputed land formed part of a larger concreted area within the enclosed curtilage of a motor trading business and was regularly used for the parking requirements of that business.

There is one further factual finding of the Judge below which I should note before turning to his legal conclusions and the arguments raised on appeal. It is that the Crofts, and in turn the plaintiff himself, were unaware of the use made by the defendants of the concreted yard, save only that John Croft saw a clothes-horse there and, as stated, consent was given to the occasional putting out of the dustbin.

I turn to the relevant law. By virtue of section 15(1) of the Limitation Act 1980 and paragraph 8(1) of schedule 1 to that Act, the critical question raised by the claim for declaratory relief here was whether or not the plaintiff had acquired adverse possession of the disputed land. To acquire title by adverse possession the plaintiff, as claimant, had to prove two things: first, that he and the Crofts (as his predecessors in title) had been in exclusive possession of the disputed land for the 12 years in question, ie the 12 years following the defendants' acquisition of their paper title on 7th December 1981; and, second, that during that period they had the requisite animus possidendi , ie the intention to possess the disputed land to the exclusion of all others, including of course the defendants.

So much is clear law and was clearly understood by the Judge who set out these basic principles at the outset of his judgment. What, however, is less clear, or so Mr Stoner for the appellants/defendants submits before us, is how the Judge came to conclude that the plaintiff's claim to adverse possession was here made good. What Mr Stoner more particularly complains about is that the Judge, having found that the defendants had indeed carried out certain acts consistent, so Mr Stoner asserts, with their possessing the disputed land, nevertheless then held them not to have been in occupation during the relevant period by reason only of their having been at the time unaware that they actually held paper title to the land. More generally, counsel submits, the Judge here focussed altogether too much attention on the defendants' activities and their state of mind, whereas the critical questions to be asked were rather with regard to the plaintiff's and the Croft's use of the land and their intentions. Furthermore, Mr Stoner points out, no express finding was ever made as to the plaintiff's and Croft's intentions with regard to their possession of the land.

As it seems to me, these arguments misunderstand the Judge's approach to this case. I believe that approach to have been essentially as follows. On any possible view of the basic facts here, the plaintiff and his predecessors in title made very extensive use of the disputed land for their automobile business. They made no distinction whatever between the disputed land and the rest of the undivided concreted area, all of which formed a single enclosed yard for the business's car parking requirements. Accordingly, the only possible basis upon which anyone could even begin to doubt the plaintiff's entitlement to claim title by adverse possession would be if the defendants could show, as they strenuously sought to do, that they too were in possession of the disputed land. Had they been able to do that then the plaintiff would have failed to satisfy the third of Slade J's basic principles of law on this topic formulated long ago in Powell v MacFarlane and Another (1977) 38 P & CR 452 at 470. I shall read most of it:

"Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive [he meant 'exclusive', as a later decision shows] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed."

And a little later:

"Whether or not acts of possession done on parts of an area establish title of the whole area must, however, be a matter of degree."

A little later still:

"Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so."

With those considerations in mind (and the references to Powell v MacFarlane in the judgment clearly show that they were in the Judge's mind) I have no doubt that his conclusion here was that the plaintiff had indeed

"been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so."

When, moreover, in the penultimate paragraph of his judgment Judge Crush held that the defendants "were not in occupation of the yard during the period since 1981", he was, I believe, concluding no more and no less than that they had failed to persuade him that the plaintiff enjoyed less than "a single and exclusive possession"; rather they envisaged "a sufficient degree of exclusive physical control" -- to use two of the expressions to be found in Slade J's already cited formulation.

I have to say, moreover, that none of this appears to me in the least degree surprising. Given that before 1981 the defendants plainly had no rights of access whatever to the disputed land (save only insofar as the Crofts permitted it); given the decidedly tenuous nature of their use of the land over the entire period, and that several of their activities stretched also on to the remaining parts of the concreted yard, ie areas 2 and 3; given that none of those activities conflicted with the business use regularly made of it as of right by the Crofts; and given that the situation continued wholly unchanged following the transfer of the paper title in 1981 (unsurprisingly once one appreciates that neither party to that transaction recognised that ownership of the disputed land had changed), it would, to my mind, have been nothing short of astonishing had the defendants after all been found to have been in joint occupation of the disputed land with the plaintiff, and before him with the Crofts -- by definition before, equally as after, the 1981 conveyance. Frankly, the nature and quality of the uses to which this land was put by the respective parties made it well nigh inevitable that the plaintiff and his predecessor in title should be held to have been throughout in exclusive occupation.

As to the plaintiff's and the Croft's intention, again, to my mind, the Judge could not properly have found otherwise than that they had the necessary animus possidendi . True, there was no express finding to this effect, but, as Mr Stoner rightly accepted, such an intention can be inferred, and, as Henry LJ pointed out in the course of argument, actions speak louder than words, and one could scarcely look to find a more assertive expression of exclusive possession than by regularly, and apparently as of right, parking cars close to someone's conservatory.

It therefore follows, in my judgment, that all of Mr Stoner's carefully formulated arguments of law founder on the rocks of fact established against his clients in this case. I would dismiss the appeal.

LORD JUSTICE HENRY: I agree.

LORD JUSTICE MUMMERY: I agree.

ORDER: Appeal dismissed; respondents's costs against Legal Aid Fund under section 18; legal aid taxation.