EV-0644 — Roger J. Smith, Property Law, chapter 7, page 76: "Stopping time running"

Catalogue record

Transcript

Book page: Roger J. Smith, Property Law, page 76, "Chapter 7 Original acquisition of property interests".

cases will fall within this rule; it is certainly not enough that it is difficult to discover the adverse possession¹⁷⁸ or that there is a false assertion of title.¹⁷⁹ In any event, time will start to run when O is (or ought to be) aware of the problem.¹⁸⁰ Somewhat differently, if O is under a disability then there is protection in both the unregistered and registered land regimes.¹⁸¹

(iv) Stopping time running

A question of obvious importance to O is how to stop the time running. The one clear answer is that bringing a claim is effective.¹⁸² Indeed, this is the only safe course for O to take if the 12 years have nearly expired. However, the stopping of time running applies only as regards the specific claim: if it is not pursued and O brings a further claim after 12 years in total, then S wins.¹⁸³ It is not enough merely to demand that S should leave.¹⁸⁴

If O is unwilling to bring a claim (perhaps because eviction of an elderly possessor would result), can time be stopped by expressly giving permission for the possession to continue? This question was raised in BP Properties Ltd v Buckler,¹⁸⁵ in which O had told S that she could stay there for life. The Court of Appeal held that, thereafter, O could not have evicted S¹⁸⁶ and the possession could no longer be seen as adverse. It was open to S to reject the licence, but her silence when the permission was given did not amount to rejection.¹⁸⁷ This offers a valuable escape route for O.¹⁸⁸ Remember, however, that S can reject the licence; an offer of a non-gratuitous licence will not be treated as accepted by silence.¹⁸⁹

Acknowledging O's title

Turning to conduct of S, a written acknowledgment of O's claim will stop time running.¹⁹⁰ This was applied where S requested O not to sell the property.¹⁹¹ Indeed, any acknowledgment of O's claim may be evidence showing that there is no animus possidendi,¹⁹² although the acknowledgment by itself would not be conclusive. Once the adverse possession period …

Footnotes: 178 Rains v Buxton (1880) 14 Ch D 537. 179 Willis v Earl Howe [1893] 2 Ch 545. 180 Limitation Act 1980, s 32(1); Willis v Earl Howe [1893] 2 Ch 545. 181 Limitation Act 1980, s 28; LRA, Sched 6, para 8. If this is overlooked (perhaps because O does not respond to a notification), then rectification of the register would seem to be available. 182 BP Properties Ltd v Buckler (1987) 55 P&CR 337 (if an order is obtained but not enforced, a fresh period of adverse possession will start running).

Transcription note: Screen capture of a book page. Transcribed in full down to the last legible footnote; the line below footnote 182 is cut off. "O" (owner) and "S" (squatter) are the author's abbreviations.

Destination

• Where the original is held: Original: Roger J. Smith, Property Law. Our copy: a screen capture of a book page held by the family.
• On this site: this artifact page, listed in the Evidence Register, and cited from the judgment page EV-0080.
• Image: the copy held is not reproduced here; the transcript stands in for it (third-party copyright).

Interpretation

A textbook treatment that uses the case twice: a possession order obtained but not enforced lets a fresh period begin (footnote 182), and a licence for life, met with silence, stopped the possession being adverse (footnote 185). The author calls this "a valuable escape route" for owners.

Related records

• Cites: EV-0080