B.P. Properties Ltd v Mr W. Buckler

This appeal, by the defendant in the action against a decision of Hollis J. given on 24th July 1986 when he was sitting as a judge of the Queen's Bench Division in Cardiff, raises a novel question of some potential importance under the provisions of the Limitation Acts 1939 and 1980 in relation to the acquisition of title to land by adverse possession.

The action concerns a farm known as Great House Farm at Llandough near Penarth in South Glamorgan. The plaintiffs, B.P. Properties Ltd., have the paper title to the farm, and indeed since November 1982 they have been the registered proprietors of it at H.M. Land Registry following first registration. They claimed possession against the defendant, Mr W. Buckler ("Mr Buckler junior") and he sought to set up a possessory title by adverse possession by himself, and by his parents Mr and Mrs Frederick Buckler before him. The judge held that the suggested possessory title was not made out, and he accordingly made the possession order which the plaintiffs sought. Mr Buckler junior appeals against that order, but the appeal has been limited to the farmhouse itself and its garden, shown coloured red on the plan served with the statement of claim. So far as the rest of the farm is concerned, the possession order is not challenged, since the claim to a possessory title failed on findings of fact by the judge that the acts of so-called possession relied on were altogether too tenuous and equivocal to support the claim.

So far as the farmhouse and garden are concerned, however, the position on the facts is different, in that there is no doubt that Mr Buckler junior has exclusive possession of the farmhouse and garden, as his parents did before him, and no rent has been paid since 1953.

Great House Farm used to belong to the Marquis of Bute, and in February 1916 the Marquis granted a yearly agricultural tenancy of the whole of the farm to a Mr John Williams, who was Mr Buckler junior's maternal grandfather. In 1938 the reversion on that tenancy was conveyed to a company called Western Ground Rents Ltd.

It appears that Mr Williams, who may already by then have been elderly, fell into arrears with his rent in the mid-1930s and in the late 1940s. Because of that, agreement was reached for Mr Williams' tenancy to be surrendered and for a new yearly agricultural tenancy commencing at 2nd February 1949 to be granted to Mr Williams' son-in-law, Mr Frederick Buckler, who was the father of Mr Buckler junior. It was intended that Mr Frederick Buckler should have a written tenancy agreement, but this did not happen because Mr Frederick Buckler also failed to pay the rent. There is a letter from the landlord's agents to their solicitors of 10th October 1952 stating that they did not propose to proceed with the letting to Mr Frederick Buckler. However the conclusion must be that, even though there was no written agreement, Mr Frederick Buckler had a periodic tenancy which was protected by the Agricultural Holdings Act.

It is unnecessary to go into the details of the payments made by Mr Frederick Buckler. On the evidence, the last payment of rent made by him—in fact a payment under a judgment for arrears of rent—was made at some time in 1953. His tenancy was then duly terminated by a notice to quit which expired on 2nd February 1955. Western Ground Rents then brought proceedings for possession against Mr Frederick Buckler in the High Court and obtained a possession order, under Order 14, in respect of the whole of the farm. On 4th July 1955 that possession order was enforced, and possession was taken in respect of all parts of the farm except the farmhouse and garden. The reason why the order was not enforced in respect of the farmhouse and garden was that Mrs Mary Buckler (daughter of Mr Williams, wife of Mr Frederick Buckler and mother of Mr Buckler junior) had recently come out of hospital after having had a leg amputated, and was objecting very strongly to leaving the farmhouse. There was even, apparently, a fear that she might attempt suicide.

In the upshot, Mr and Mrs Frederick Bucklers' occupation of the farmhouse and garden was undisturbed for many years. Mr Buckler junior was also there, but he was then only a boy, having been born on 25th August 1948. Mr Williams and his wife Mrs Esther Williams had also been living there in 1955, but they died. By 1959, at any rate, Mrs Mary Buckler, who was also from time to time referred to as Mrs Williams, had conceived the notion that she had a title to the ownership of Great House Farm through her own grandfather, and that there were documents in existence which proved her title. No such documents were however ever produced. She was offered a tenancy of the farmhouse and garden by Western Ground Rents but refused to accept it. She was also later offered, and refused, alternative accommodation.

The advisers of Western Ground Rents seem during these years to have supposed that, if they attended at the farmhouse from time to time and asserted Western Ground Rents' title, that was sufficient to prevent time running against Western Ground Rents under the Limitation Act 1939. Plainly, however that notion was erroneous, as section 13 of the Act provides that "no person shall be deemed to have been in possession of any land by reason only of having made a formal entry thereon, and no continual or other claim upon or near any land shall preserve any right of action to recover the land."

In 1962, however, Western Ground Rents brought a fresh action in Cardiff County Court against Mr Frederick Buckler and Mrs Buckler for possession of the farmhouse and garden and mesne profits since 1955. On 11th December 1962 a possession order was made by Judge Temple Morris Q.C. together with an order for payment of mesne profits. The latter was to some extent enforced, in that there seems to have been a suspended committal order against Mr Frederick Buckler in June 1963, but nothing was done before 1974 to enforce the 1962 possession order. In the meantime Mr Frederick Buckler died at some time in the period 1965/7, and in December 1969 Great House Farm, including the farmhouse and garden was sold by Western Ground Rents to B.P. Pension Trust Ltd.

After the death of Mr Frederick Buckler, Mrs Buckler remained in possession of the farmhouse and garden, with various of her children living there with her, including Mr Buckler junior. No payment was made.

In 1974 B.P. Pension Trust Ltd. started a fresh action in the Cardiff County Court for possession and mesne profits against Mr Buckler (sued as Mrs Williams) and various members of her family, including Mr Buckler junior. This was adjourned part heard on 3rd July 1974 for a formal defence to be filed on behalf of Mrs Buckler, and a defence was filed asserting. that B.P. Pension Trust's claim was barred by adverse possession under the Limitation Act 1939; so far as Mr Buckler junior is concerned, it was pleaded that he occupied the property as licensee of Mrs Buckler. That action has never been finally heard. However, on 17th September 1974 B.P. Pension Trust Ltd. gave notice of an application by them as successors in title to Western Ground Rents for leave to enforce the possession order of 11th December 1962 (the order of Judge Temple Morris Q.C.) and on 19th September 1974 Judge Watkin Powell on that application gave B.P. Pension Trust Ltd. leave to execute the order for possession of 11th December 1962. He ordered that the possession warrant do issue forthwith but be not enforced until 31st October 1974.

On 30th October 1974 Mrs Buckler's solicitors issued a notice of appeal to this court against the order of Judge Watkin Powell (on the ground that Mrs Buckler had had insufficient notice of the application and therefore had had no opportunity of presenting her case) and her solicitors took an appointment before the judge in the Cardiff County Court for Monday 4th November for a stay of execution of his order of 19th September 1974. More effectively, however, as soon as Judge Watkin Powell's order was known, a press campaign broke out in South Wales, with some support on television against the threatened eviction of Mrs Buckler. Mrs Buckler was described as an elderly widow, confined to a wheelchair, who was being thrown out of the cottage her family had occupied for centuries, so that the historic cottage could be bulldozed to the ground and developers could build executive houses on the site.

Against that background, the two letters which are at the heart of this case were written. Both are dated 31st October 1974. One is from B.P. Pension Trust Ltd., and the other from the present plaintiffs, B.P. Properties Ltd. Both are addressed to Mrs Buckler (described again as Mrs Williams), but both were in fact sent not to her but to her solicitor, who seems to have received them on the morning of 4th November, immediately before he made his application to Judge Watkin Powell in the Cardiff County Court.

The letter from B.P. Pension Trust is as follows:

"We have been advised that you are making an application to the Court for a Stay of Execution of the Order for Possession which was recently confirmed, and that...