An adverse decision

Citation

Anstey, J. (1998), "An adverse decision", Structural Survey, Vol. 16 No. 4. https://doi.org/10.1108/ss.1998.11016daa.002

An adverse decision

An adverse decision

John Anstey

Keywords Legal considerations, Limitations, Property ownership

Possibly the longest and hardest fought party wall case of all times has recently been contested in the High Court, and the result depended on ownership of a "party" wall. The contesting parties were Waterloo Real Estate Incorporated and The Prudential Assurance Company Ltd ­ henceforward Waterloo and The Pru ­ and the issue was whether one of them owned the whole of a particular section of wall, or whether it was party to both of them.

You may wonder how it was possible to spend 32 days, or why it was worth spending a horrific amount of money, on deciding the ownership of a piece of wall a few yards long. The second question is easily answered: if the wall belonged wholly to Waterloo they could make an opening in it to service their proposed development from Raphael Street, while if it was a party wall The Pru could close Raphael Street and greatly enhance their own proposed scheme. Millions of pounds therefore rode on the answer. The first question is a little more difficult, but when I tell you that Judge Andrew Paul's judgment ran to 125 pages, and that the history of the wall had been examined over 300 years, you may begin to understand.

Incidentally, the judge said that he disapproved of the sort of judgment that kept its hearers on tenterhooks ­ and at 125 pages, the hooks would have been digging in pretty painfully by the end ­ so he announced his decision on page one, and then explained it. As you know, I do not know my own mind when I start writing these articles, so I cannot follow suit, but I am only going to study the "Adverse possession" section of his judgment, which covers a mere 13 pages, so you would not have so long to wait, even if I quoted it verbatim ­ which I won't.

The effect of 300 years of history was to satisfy the judge that the wall, on paper, was a party wall. It was therefore necessary to decide whether it had become wholly owned by one party by adverse possession. Until this case, I was firmly of the opinion that you could not adversely possess the far side of a wall, unless you also possessed ­ presumably also adversely ­ the land beyond it. What could you do, I asked myself, that ousted the rightful owner when at any time he could walk up to the wall and reclaim his share? Even if the two requisite elements of possession were satisfied, that there must be actual, physical and exclusive possession, and that the claimant must have the animus possidendi ­ that is to say the intention to possess against the rightful owner ­ there was still Leigh v. Jack[1] to get past.

The case just mentioned held that if the land adversely possessed was not needed for the paper title owner's present purposes, time could not run against him. I was rather under the impression that this could still apply, but the judgment of Slade J in Bucks CC v. Moran[2] makes it clear that the principles which he himself had set out in Powell v. McFarlane[3], founded on paragraph 8(4) of Schedule 1 to the Limitation Act, 1980, disposed of the possibility.

For those of my readers unfamiliar with the Limitation Act, I will set out the relevant words. Under section 15(1):

"No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some other person through whom he claims, to that person."

In other words, your right to sue for your land back disappears if another person has had it for 12 years. There are some other associated clauses, but that is the nub of it.

As the judge said, the relevant provisions of the Act are few, but the case law is extensive. The first case he looked at was Red House Farms v. Catchpole[4], which he regarded as an archetypal one where the true ownership of land has been forgotten, and the persons involved fail to realize that adverse possession is taking place, either for them or against them, and he felt that the instant case was very similar. (The more frequent kind ­ I think ­ is when someone deliberately encloses land, knowing that it belongs to someone else, and then sits there waiting for 12 years to pass.)

"The Great Wall of Knightsbridge" (as one of the solicitors christened it) was originally a wall separating two distinct owners who, as mentioned above, owned it as a party wall between them, but when Raphael Street was re-aligned in 1957, the end wall of Waterloo's building (the erstwhile and at that time still party wall) fronted on to the new pavement. "It ceased for practical purposes to perform any function for the Prudential's predecessor." At one time Mr Capocci (who then worked for The Pru but has figured more recently, though anonymously, in these pages as managing director of Swan Hill, in their action against British Waterways[5] ­ at least, I believe, that it is the same chap) thought that The Pru might have an interest in the Wall, but neither he nor anyone else did anything to assert that interest.

Counsel argued that the wall was The Pru's boundary wall, but the judge felt that it was quite different from a wall between two fields or gardens. The Pru did not "use" the street in the way that a landowner used his land. A door through the wall argued equally for ownership by Waterloo, but the judge was certain that this had been inserted with the consent of The Pru's predecessors.

Potent arguments in favour of Waterloo's ownership of the wall were that they had purported to lease the whole wall to others, and to maintain it; when work had been necessary to the wall, including rendering or decoration, Waterloo had done it. In the late 1970s, they had raised the wall and constructed a roof which bore on and overhung the wall. In order to do this they had erected scaffold in Raphael Street against the wall. Waterloo had attached a security camera and lighting to the further face of the wall, put an overflow pipe through it, and cut a hole for a nightsafe through it. These were all acts of ownership. Importantly, Waterloo (or their predecessors) never asked The Pru (or their predecessors) for their consent to do these works, and The Pru (or their predecessors) who must have seen what was going on, made no demur.

Judge Park said that Waterloo had to satisfy five conditions in order to prove a possessory title. They must have had possession of the southern face of the wall (their building lay to the north); it must have been exclusive possession; the paper title owner must have either have been dispossessed or discontinued possession; Waterloo must have had the intention to possess the southern face (the animus possidendi); and the possession must have been adverse in the statutory sense. This last really means that someone must have been there for 12 years against whom an action could have been brought to say: "Please can we have our wall back?"

There was no doubt that the relevant conditions had applied ­ if they had existed at all ­ for 12 years. Had they been present in the appropriate manner? The judge considered each condition in turn.

Possession: clearly it is possible to possess an entire wall, as for example the garden wall of a house fronting on to a street. No one would argue that the council owned half the wall, if they happened to own the street. In Powell v. McFarlane (q.v.) the court had said that:

"what acts constitute a sufficient degree of exclusive physical control must depend on ... the nature of the land and the manner in which land of that nature is commonly used or enjoyed."

Later on in the same judgment, Slade J said that:

"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."

Acts of possession have to be distinguished from those which constitute an easement. In this case, the fire escape doorway through the wall was not cut and did not remain there as an act of possession, but was an easement under Wheeldon v. Burrows[6], or under section 62 of the Law of Property Act, 1925. Raising the wall for the new roof, or rendering it, was not the exercise of an easement, however, but the act of an owner.

It was hard to say that a man could achieve exclusive possession of a disputed part of a lawn, when no one could see where the division was, as Megarry J had pointed out in Neilson v. Poole[7], but you could exclusively own part of a wall, which continued beyond your boundary. (I am not sure whether I have explained that the wall continued beyond the point where the debate was taking place, and clearly was a party wall further on.) If a pair of semi-detached have a continuous front garden wall, it is the same wall, but each householder has total ownership of his bit.

So far, I am with the judge. It is the next couple of conditions that I have difficulty with. Waterloo had to have exclusive possession of the wall. How do you do that unless you control activities on the far side of the wall? Waterloo did not: it was a public pavement. The judge said that "The Prudential and its predecessors took no interest in the wall", but as I shall explain when I have finished dealing with this case, that is often the way things are. However, the facts here satisfied Mr Justice Park.

Discontinuance of possession took the judge one short paragraph, and he held that it was much the same as the previous point. The Pru had been dispossessed since about 1957.

Always an important factor in adverse possession cases, the animus possidendi occupied the judge for a little longer. Once again he quoted from Powell v. McFarlane (q.v.) and where Slade J had said that the animus possidendi "involves the intention...to exclude the world at large, including the owner with the paper title..., so far as is reasonably practicable..." Although Waterloo did not proclaim to the world that it intended to exclude everybody, it behaved as if it did.

Finally, he turned to "Adverse" possession. He said that the word could be misleading, because it did not have to be hostile to the paper owner, but someone other than he had to have possession in such a way that the paper owner could ­ and would have to ­ bring an action to recover the land. This had to last for 12 years, and if The Pru had brought their action within 12 years after, say, 1957 they would have succeeded. As things were, they did not.

There followed a great deal about proprietary estoppel and estoppel by convention, on both of which points the judge was against Waterloo, and this is not the time to go into those arcane areas of the law: some other time perhaps. He then examined the question of injunction or damages, and said that if entitled to relief, The Pru could be satisfied only with an injunction, not with damages.

The Pru, therefore, won on every count, except one, and that one was enough to give Waterloo the ownership of the wall which they sought. Mr Justice Park ended by hoping that the parties would work together to redevelop an area sorely in need of it, even if it could not be done in quite the way that the Prudential wanted. So much for the case. What about the consequences?

Not so long ago, I had a case where the ownership of the end wall of a building was in dispute and it went, by consent of the parties, to the Third Surveyor for decision. A terrace had been bombed during the war, and the end wall of the surviving section made good. Damage was now occurring to the standing property, and the question was whether the wall belonged to it, or to the former owners of the bombed site and their successors in title. There must be many similar cases where a former party wall (in the full sense) has become an external wall serving one building only, with land beyond it in the ownership of someone who has no real interest (in the non-legal sense) in his half of the wall. At the time, it seemed obvious to me that a party wall of that sort, or two skin walls, would never change its ownership unless a conveyance had done so, because you could not adversely possess the far side of the wall. Do I still think so?

On the whole, yes I do. I think that it takes very extraordinary circumstances for the actions of the owner of half a party wall to be deemed to be those of an adverse possessor. The fact that, in the Great Wall of Knightsbridge, the far side of the wall was a public street made it far more difficult, and unlikely, for The Pru to resist the actions of Waterloo. If the land on The Pru's side had been part of the grounds of their property, even if their visits to it or use of it had been spasmodic or minimal, then the same acts of rendering, decorating, or even putting a video camera on the wall might well have established an easement, but would not ­ in my judgement ­ have been incontrovertible acts of possession.

The raising of the wall and roofing over the area behind might have been a little more persuasive, but still I think that if the land abutting the wall had remained in the occupation of the paper title owner, it would have been far harder to establish adverse possession. On the instant facts, I would still have been against Waterloo. I am still not entirely convinced even with the pavement, and after carefully reading the judgment at least twice. However, that is the law for the time being, and the answer seems to be the same as applies to a rugger ball trapped in a maul: use it or lose it.

Notes

1. 1.

   Leigh v. Jack (1879), 5 Ex D 264 CA.

2. 2.

   Bucks CC v. Moran (1989), 1 Ch 623.

3. 3.

   Powell v. McFarlane (1977), 38 P&CR 452.

4. 4.

   Red House Farms (Thorndon) Ltd v. Catchpole (1976), 244 EG 295.

5. 5.

   Structural Survey, Vol. 15 No. 3.

6. 6.

   Wheeldon v. Burrows (1879), 12 Ch D 31.

7. 7.

   Neilson v. Poole (1969), 20 P&CR 909.