Limitation of Actions Consultation - Law Commission

6.27 Before the 1980 Act some decisions were felt to have established the doctrine that
a licence would be implied in favour of the squatter, even where there was no
factual basis for doing so, if the acts of the squatter did not substantially interfere
with any plans the owners might have for the future use of undeveloped land. 74
Paragraph 8(4) of Schedule 1 to the 1980 Act reversed the effect of these cases by
providing that it may not be assumed that a squatter’s occupation of land is with
the permission of the owner merely because it is not inconsistent with the owner’s
present or future occupation of that land. This does not prevent the court holding
that such occupation is by the implied consent of the owner where the facts justify
such a finding.
6.28 In Buckinghamshire County Council v Moran 75
it was nevertheless argued that a rule
that where an owner had plans for a specific future use of land, the owner’s
possession should not be regarded as being discontinued unless and until the
squatter’s conduct interfered with that intended use, 76
survived the enactment of
paragraph 8(4) and the consequent abolition of the implied licence doctrine. This
argument was decisively rejected by the Court of Appeal, which held that the
earlier cases could be explained on the basis, not of an implied licence, but on the
basis that in the absence of clear evidence to the contrary the court should infer
from the squatter’s knowledge of the intended use that there was no intention to
possess. 77
The Court of Appeal recently reaffirmed this reasoning in London
Borough of Hounslow v Minchinton. 78
6.29 Whether a squatter has taken sufficient control over the land to establish adverse
possession or not is a question of fact in each case, and will depend on the nature
of the land and the possible uses for it. The character of the land is especially
important. 79
Where, for example, the only practical use for land was as a shooting
ground, organising occasional shoots over the land was sufficient to demonstrate
adverse possession. 80
It is particularly difficult to establish that unoccupied land is
in adverse possession. Circumstances which have led the court to conclude that
the squatter has taken possession of the land, with the relevant intention, include
the following:
74 See in particular Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB
94 (Stamp LJ dissenting) and Gray v Wykeham Martin & Goode (unreported, 17 January
1977); and also Tecbild Ltd v Chamberlain (1969) 20 P & CR 633. See also T Prime and G
Scanlan, The Modern Law of Limitation (1993), pp 188 - 189; A McGee, Limitation Periods
(2nd ed 1994) pp 212 - 213.
75 [1990] Ch 623.
76 Leigh v Jack (1879) 5 Ex D 264, 273, per Bramwell LJ.
77 [1990] Ch 623, 637 - 640, per Slade LJ. See also Powell v McFarlane (1979) 38 P & CR 452,
484, per Slade J.
78 (1997) 74 P & CR 221. See also H W Wilkinson, “Possession as of Wrong” (1997) 147 NLJ
1662.
79 See Marshall v Taylor [1895] 1 Ch 641.
80 Red House Farms (Thorndon) Limited v Catchpole [1977] 2 EGLR 125, although, since it was
established in that case that the owner had abandoned its use of the property, the test, in
terms of activities carried out on the land, that the squatter had to satisfy to be shown to
have taken possession, was not a difficult one.
102