Mitchell v Watkinson & Anor

For many years, members of the Mitchell family owned the freehold of land on the east side of Greenway Lane, Charlton Kings, Cheltenham. In 1947, three members of the Ryeworth Cricket Club were granted a tenancy of some of the land owned by the Mitchell family, with the intention that the tenanted land would be used for the purposes of a cricket club.

In order to describe the relevant events in this case, it is useful to refer to four different parts of the land which was the subject of the 1947 tenancy, as follows:

In view of the fact that there is, or may be, a dispute as to both areas of land referred to in (3) and (4) of paragraph 2 above, it is no longer appropriate to refer only to the area referred to in (3) of paragraph 2 above as “the disputed area”. I will therefore refer to the four areas of land referred to in paragraph 2 above as (1) “the northern section”, (2) “the middle section”, (3) “the southern section” and (4) “the pond area”.

The First Defendant is an honorary Vice President of the Charlton Kings Cricket Club and the Second Defendant is a member of that club and is sued in a representative capacity on behalf of the members of that club.

At the trial, the parties adopted different positions as to the continued existence of the 1947 tenancy in relation to the southern section and the position of the 1947 tenancy in relation to the pond area was not addressed. For most of the trial, the Second Defendant contended that the 1947 tenancy in relation to the southern section had merged in the freehold or been surrendered, probably in 1975 when the trustees of the club acquired the freehold of the middle section from the then landlord. The Second Defendant obviously took this stance as he must have considered that this would assist his case that the Claimant’s title to the southern section was barred by adverse possession. Conversely, the Claimant adopted the position that the 1947 tenancy had not been determined at any time. The Claimant appears to have adopted that stance in the belief that would help her establish that her title was not barred by adverse possession although she recognised that, if the tenancy still subsisted, she would not be entitled to possession of the southern section until that tenancy was lawfully determined.

In the course of closing submissions, counsel for the Second Defendant resiled from his earlier stance. Reference was made to the possible operation of paragraph 5 of schedule 1 to the 1980 Act. I will set out that paragraph and describe its operation later in this judgment. The Second Defendant then wished to assert that the tenancy had continued at all material times and sought to rely on paragraph 5 of schedule 1 to the 1980 Act. Counsel who then appeared for the Claimant wished to reconsider his earlier case that the tenancy had continued at all material times.

For reasons which I gave at the time, I permitted both parties to reconsider their positions. I directed that each side should serve a pleading setting out his or her final position in relation to the 1947 tenancy and the effect of paragraph 5 of schedule 1 to the 1980 Act and I directed that the matter would then be restored for further argument.

The pleading served by the Second Defendant positively asserted that the 1947 tenancy had continued at all material times in relation to the southern section. Although this had not been envisaged during the trial, the Second Defendant followed through the logic of his position by contending or appearing to contend that the same position must also have pertained in relation to the pond area. The Second Defendant then relied upon paragraph 5 of schedule 1 to the 1980 Act to bar the Claimant’s title to the southern section and the pond area.

The pleading served by the Claimant also asserted, or at any rate accepted, that the 1947 tenancy continued at all material times. The Claimant denied that the Second Defendant was able to rely on paragraph 5 of schedule 1 to the 1980 Act to bar the Claimant’s title or that the Claimant’s title had otherwise been barred by adverse possession.

The provisions of the 1980 Act which are of principal relevance in this case are sections 15 and 17 and paragraphs 1, 5 and 8 of schedule 1.

Sections 15 and 17, so far as material, provide:

“15 Time limit for actions to recover land.

(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 person through whom he claims, to that person.

…

(6)

Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.

…

17 Extinction of title to land after expiration of time limit.

Subject to—

(a)

section 18 of this Act;. . .

(b)

…

at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished.”

Paragraphs 1, 5 and 8 of schedule 1, so far as material, provide:

“Accrual of right of action in case of present interests in land

1 Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.

…

Accrual of right of action in case of future interests

…

5(1) Subject to sub-paragraph (2) below, a tenancy from year to year or other period, without a lease in writing, shall for the purposes of this Act be treated as being determined at the expiration of the first year or other period; and accordingly the right of action of the person entitled to the land subject to the tenancy shall be treated as having accrued at the date on which in accordance with this sub-paragraph the tenancy is determined.

(2)

Where any rent has subsequently been received in respect of the tenancy, the right of action shall be treated as having accrued on the date of the last receipt of rent.

…

Right of action not to accrue or continue unless there is adverse possession

8(1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as “adverse possession”); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.

(2)

Where a right of action to recover land has accrued and after its accrual, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be treated as having accrued and no fresh right of action shall be treated as accruing unless and until the land is again taken into adverse possession.

… ”

Title to the southern section and the pond area was registered at HM Land Registry on 18^th January 2002. The Land Registration Act 2002 made fundamental changes to the law as to adverse possession in relation to registered land. However as all the acts of adverse possession relied upon by the Defendants took place before the coming into force of the 2002 Act on 13^th October 2003, it is not necessary to describe the provisions of the 2002 Act.

The principal disputes arise in relation to the application of paragraphs 5 and 8 of schedule 1 to the 1980 Act. Both sides say that there was a tenancy of the southern section at all material times. It is also accepted that the tenancy was a tenancy from year to year. The Second Defendant contends that the facts come within the statutory words “without a lease in writing” so that paragraph 5 of schedule 1 applies to this case. The Claimant contends that there was “a lease in writing” and that paragraph 5 of schedule 1 does not apply. It is agreed that the last receipt of rent (relevant for the purposes of paragraph 5(2) of schedule 1) was on 8^th October 1974 so that, if paragraph 5 of schedule 1 applies to this case, the right of action for possession would be treated as having accrued on that date (subject to paragraph 8 of schedule 1). As to paragraph 8, the Claimant contends that a right of action for possession did not accrue on 8^th October 1974 or at any time thereafter because on and after 8^th October 1974 there was no one in possession for the purposes of paragraph 8; the Second Defendant contends the opposite.

In view of the focus of the argument on paragraph 5 of schedule 1, I will first describe the conveyancing history in relation to the freehold title held by the Mitchell family and I will then make my findings of fact in relation to the tenancy of the southern section. I will then proceed to analyse the consequences of those findings.

For some time before 1947, the four areas of land referred to in paragraph 2 above were owned by Mr Arthur Mitchell. Title to the land was not registered under the Land Registration Act 1925. On or about 25^th March 1947, Arthur Mitchell executed a Deed of Gift in favour of his son, Lawrence Mitchell. I say “on or about” because, although the Deed of Gift is dated 25^th March 1947, there is evidence from the file of the solicitors acting in that transaction that the Deed had not been executed by 15^th April 1947 but, conversely, there is evidence that it had been executed by 25^th April 1947. The Deed of Gift included the four areas of land referred to in paragraph 2 above but included much more land besides. The relevant four areas of land were described as having Ordnance Survey field number Pt. 171 and extended to 5.294 acres.

On 14^th March 1975, Lawrence Mitchell conveyed the middle section (see paragraph 2 above) to Messrs Sherwood, Soule, Withers and Stanford for the price of £2,500. The land conveyed was described as “now used as a cricket field” and was said to have an area of 2.47 acres and to be part of plot number 171 on the Ordnance Survey map. The land conveyed was also stated to be shown for the purposes of identification only edged red on an attached plan. The plan seems clearly to exclude the southern section (as defined in paragraph 2 above). The conveyance stated that the land conveyed was free from incumbrances.

The purchasers were members of the Ryeworth Cricket Club. Clause 3 of the conveyance stated that the purchasers were to hold the land conveyed on the trusts declared by a deed of even date made between the purchasers of the one part and “the Ryeworth Cricket Club” of the other part. The deed there referred to has not been found. The deed seems to have declared the trusts on which the purchasers held title to the middle section and it seems likely that the trusts involved title being held for the benefit of members of the Ryeworth Cricket Club on some terms or other. I was shown a minute of a meeting of the Ryeworth Cricket Club held on 15^th August 1974 which identifies the source of the £2,500 which was paid for the land. It was at one time suggested that the purchasers would have held the title on trust for the persons there named as contributing to the price for the land and in the proportions referable to their contributions. I was given evidence that the contributions were intended to be by way of loan and this was corroborated by the production of certain financial records of the Ryeworth Cricket Club which showed “loans” being repaid in circumstances which suggest that the original contributions to the price were indeed by way of loan.

Of the four purchasers, Mr Withers died on 22^nd September 2006 and Mr Soule died on 11^th December 2010. Mr Sherwood and Mr Stanford are therefore the surviving legal owners of the middle section, holding the same on the trusts to which I have referred.

In 1979, Lawrence Mitchell conveyed the northern section to a Mr Phillips.

On 18^th January 2002, Mr Lawrence became registered at HM Land Registry under Title No. GR245902 in relation to an area of land which included the southern section and the pond area. That registered title also included land to the east of the southern section which had in the past been used as allotments.

On 9th January 2009, Lawrence Mitchell died. His widow, the Claimant, obtained probate of his will and on 7^th June 2011 she was herself registered as the registered proprietor of Title No. GR 245902. That remains the position.

It is common ground that in 1947, the then legal owner of the four areas of land referred to in paragraph 2 above granted a tenancy of that land to three members of the Ryeworth Cricket Club. However, the parties disagree as to how, as a matter of legal analysis, that tenancy came into existence. I will begin by describing the facts which are relevant in relation to that question.

On 10^th June 1947, Arthur Mitchell entered into a written agreement in relation to the relevant four areas of land in the form of a tenancy agreement of that land in favour of Messrs Mews, Staddon and Ryder. It should be noted that this agreement of 10^th June 1947 was after Arthur Mitchell had conveyed that land to his son Lawrence Mitchell on or about 25^th March 1947.

The tenancy agreement referred to the three tenants as “the Trustees of the Ryeworth Cricket Club”. The agreement stated that the tenancy would commence on 25^th March 1947 and continue from year to year and be determinable by either party giving to the other not less than six months notice to quit to expire on the 29^th September. The tenancy also contained a forfeiture clause. The tenancy agreement reserved a rent of £1 a year payable half yearly in arrear on the 25^th March and 29^th September in each year (except for the last payment before the determination of the tenancy). The first payment of rent was due on 29^th September 1947.

By the tenancy agreement, the tenants agreed to observe and perform certain provisions and stipulations. They were to lay out and maintain the premises as a “proper cricket bowls and or tennis club”. They were to manage and manure the premises in a good and husbandlike manner so as to keep the land constantly in good heart and condition and in good sound turf. They were to use the premises as a private cricket, bowls and or tennis ground and club pavilion only or for such other games or recreations as might be approved by the landlord. They were to allow the landlord and his agents at all reasonable times to enter the premises to inspect their condition and for other reasonable purposes.

On 26^th September 1947, the secretary of the Ryeworth Cricket Club sent to Johnson & Co, who were solicitors acting for Arthur Mitchell, a cheque for ten shillings as payment of the half year’s rent due to Arthur Mitchell on 29^th September 1947. On 2^nd October 1947, Johnson & Co replied to the secretary of the Club. The letter enclosed a receipt for the rent. The letter also stated that “[s]ince the Agreement was entered into the property has been made over by Mr Arthur Mitchell to Mr H.A.L.V. Mitchell”. That statement was not accurate, as the conveyance of the land to Lawrence Mitchell had taken place before the entry into the tenancy agreement. The letter went on to state that the tenants should in future pay the rent to Messrs Edwards Son & Bigwood Mathews, estate agents, who were agents for Lawrence Mitchell.

Also on 2^nd October 1947, Johnson & Co wrote to Messrs Edwards Son & Bigwood Mathews. They enclosed the Club’s cheque for ten shillings and they described what they had written in their letter to the Club secretary. They added that under the tenancy agreement with the Ryeworth Cricket Club the rent was £1 per annum payable half yearly on the 25^th March and 29^th September.

On 4^th October 1947, Messrs Edwards Son & Bigwood Mathews replied to Johnson & Co. The letter stated that they would pay the cheque for ten shillings into Lawrence Mitchell’s account and they noted that the Club had been asked to send the rent direct to them in the future.

The records of the Club show that it paid a rent of £1 per year to Messrs Edwards Son & Bigwood Mathews in the period up to 1957. Thereafter, until 1964, it paid a rent of £1 per year to different agents for Lawrence Mitchell. In 1965, the records show that the payment of rent to those agents was increased to £20 per year, payable by two instalments. Payment of rent in this way continued until the last payment was made on 8^th October 1974.

The three tenants named in the 1947 tenancy agreement were Messrs Mews, Staddon and Ryder. Mr Mews died on 18^th May 1948. Mr Ryder died on 5^th November 1972 and Mr Staddon died on 22^nd June 1974. I understand it to be accepted that the tenancy which was vested at law in these three tenants was vested in Mr Staddon alone by survivorship following the death of Mr Ryder on 5^th November 1972 and when Mr Staddon died on 22^nd June 1974, the tenancy would have formed part of his estate. There was no evidence as to whether Mr Staddon left a will and no evidence as to whether his estate was administered by anyone. If he died intestate and there had been no grant of letters of administration, then the tenancy would have been vested in the Probate Judge, pursuant to section 9(1) of the Administration of Estates Act 1925.

As the last payment of rent was on 8^th October 1974, it is necessary to consider the tenancy which was in existence on and after that date. Although the last of the tenants named in the 1947 tenancy agreement had died on 22^nd June 1974 and the club paid rent on one occasion after that date, it was not suggested that there was any further grant of a tenancy informally to some other tenant by reason of such payment and acceptance of rent. Conversely, both sides before me accepted that the 1947 tenancy continued at all material times. There is no evidence which would enable the court to identify any person in whom the tenancy was vested after the death of Mr Staddon on 22^nd June 1974 or whether the default position was that the tenancy was vested in the Probate Judge under section 9(1) of the Administration of Estates Act 1925.

With effect from 1^st July 1995, a new section 9(1) of the 1925 Act was substituted by section 14(1) of the Law of Property (Miscellaneous Provisions) Act 1994. If before that date the tenancy had been vested in the Probate Judge then on that date it would have vested in the Public Trustee pursuant to the transitional provisions in section 14 of the 1994 Act. Of course if, before 1^st July 1995, the paper owner’s title had been barred by the 1980 Act by reason of the operation of paragraph 5 of schedule 1 to the 1980 Act, then the tenancy would have ended when the paper owner’s title was barred: see per Rigby LJ in Re Jolly [1900] 2 Ch 616 at 618.

At the end of the trial, both sides accepted that there was a tenancy in existence in relation to the southern section on and after 8^th October 1974. By the end of the trial, neither side submitted that the tenancy of the southern section had been determined. At one time, it had been suggested that the tenancy merged in the conveyance of the freehold of the middle section on 14^th March 1975. However, that would not seem to be right. At most what might have happened was that the tenancy, in so far as it related to the middle section, might have merged in the conveyance of the freehold of the middle section. Further, it had earlier been submitted that the tenancy of the southern section was surrendered by operation of law at some point, possibly on 14^th March 1975. Those submissions led to the examination of certain questions which included some of the following. Who were the tenants at the time of the alleged surrender? Were they a party to any action which was relied upon as a surrender by operation of law? Were they aware of any such action? Was such action to be considered to be action by or on behalf of them on the basis that they were trustee owners on some trusts or other? It may be relevant that the Probate Judge was not considered to be a trustee: see Re Deans [1954] 1 WLR 332. What action could be identified which was inconsistent with the continued operation of the tenancy of the southern section? In the event, the suggestion that the tenancy of the southern section had been surrendered had been abandoned and it is neither necessary nor appropriate for me to consider further that possibility.

Both sides agree that there was a tenancy in existence in relation to the southern section on and after 8^th October 1974. Both sides agree that this tenancy was granted in 1947 and had never been determined or replaced by a new tenancy. Paragraph 5 of schedule 1 to the 1980 only applies where there is a tenancy from year to year or other period “without a lease in writing”. Accordingly, I need to consider whether the tenancy in existence on and after 8^th October 1974 was “without a lease in writing”.

For this purpose, I need to analyse the events of 1947 in order to identify the legal process whereby a tenancy came into existence at that time.

I will start with the tenancy agreement of 10^th June 1947. The parties to this agreement were Arthur Mitchell described as “the Landlord” and the three persons described as “the Trustees” who were to be the tenants. It was not submitted that Arthur Mitchell was contracting as an agent for an undisclosed principal, Lawrence Mitchell. There was no attempt to establish the requirements for a case of undisclosed principal, as to which see Chitty on Contracts, 31^st ed., Vol II, paras. 31-066 and 31-067 and Hanstown Properties Ltd v Green [1978] 1 EGLR 85.

The agreement of 10^th June 1947 created a contract of tenancy between Arthur Mitchell as the landlord and the Trustees as the tenants. That contract was valid and effective between the parties to the agreement even though at the date of the agreement, Arthur Mitchell did not have title to the land the subject of the agreement: see Bruton v London & Quadrant Housing Trust [2000] 1 AC 406. However, the contract of tenancy was not at that point binding on anyone who was not a party to it, such as Lawrence Mitchell.

The agreement of 10^th June 1947 also gave rise to certain estoppels between the parties to the agreement. Arthur Mitchell as the landlord could not set up his own lack of title to avoid the liabilities which he owed to the Trustees under the agreement. The Trustees could not set up Arthur Mitchell’s lack of title to avoid the liabilities which they owed to Arthur Mitchell under the agreement. The estoppel as against the Trustees would last until a claim was made against them pursuant to title paramount: see Industrial Properties Ltd v A.E.I. [1977] 1 QB 580.

By 10^th June 1947, Lawrence Mitchell was already the freehold owner of the land which was the subject of the agreement of that date. He was not a party to that agreement. He was therefore not contractually bound by it. He was not, certainly not initially, estopped from denying that there was a contract of tenancy binding him. If he had sought to sue the Trustees on the agreement, they would have been able to say that he did not have the benefit of the agreement as he was not a party to it.

I have described what happened in relation to the first payment of rent in September 1947. On 26^th September 1947, the Trustees sought to pay to Arthur Mitchell the half-year’s rent due to him under the agreement. On 2^nd October 1947, Arthur Mitchell’s solicitors told the Trustees, wrongly, that the land had been transferred to Lawrence Mitchell after 10^th June 1947 and that future rent was due to Lawrence Mitchell and not Arthur Mitchell. Also on 2^nd October 1947, Arthur Mitchell’s solicitors sent the half-year’s rent to the agents for Lawrence Mitchell and they paid the rent into Lawrence Mitchell’s account. Subsequent payments of rent from 1948 to 1974 were paid on behalf of the Trustees to Lawrence Mitchell.

It is accepted, rightly I think, that there was a relationship of landlord and tenant between Lawrence Mitchell and the Trustees from 1947 onwards. The most natural analysis of how that relationship came into being is that it was created by reason of the payment and acceptance of rent. The implication from that conduct is that Lawrence Mitchell and the Trustees had agreed that they were his tenants. As regards the terms of that tenancy, the clear implication from the above conduct was that the terms were those set out in the agreement of 10^th June 1947: see Woodfall on Landlord and Tenant, Vol. 1, paras. 6.037, 6.041 to 6.041.2, Martin v Smith (1874) LR 9 Exch 50, Rhyl UDC v Rhyl Amusements Ltd [1959] 1 WLR 465 and Long v TowerHamlets LBC [1998] Ch 197. Normally, when one infers the existence of an agreement of tenancy from payment and acceptance of rent, it is right to hold that the tenancy was granted informally by an agreement to be implied from conduct.

I have considered whether it might be argued that what happened in September and October 1947 was that Arthur Mitchell assigned the benefit of the agreement of 10^th June 1947 to Lawrence Mitchell. I should first explain why that might matter. If, after 10^th June 1947, Arthur Mitchell had assigned his rights as landlord under the agreement of that date to Lawrence Mitchell, then Lawrence Mitchell could enforce the rights of the landlord under that agreement in the same way as Arthur Mitchell could have done. In so far as the agreement was a contract between Arthur Mitchell and the Trustees, Arthur Mitchell would have been able to assign the benefit of that contract. Further, the assignee would have the benefit of the estoppel as against the Trustees. They could not deny the third party’s title in the same way as they could not deny Arthur Mitchell’s title. So the question is: did the events of September and October 1947 constitute an assignment by Arthur Mitchell to Lawrence Mitchell of the benefit of the agreement of 10^th June 1947?

The communications of September and October 1947 between the representatives of Arthur and Lawrence Mitchell did not use any language which on a fair reading amounted to a purported assignment to Lawrence Mitchell of the benefit of the agreement. What Arthur Mitchell’s solicitors wrote in their letter of 2^nd October 1947 to the Trustees was that after 10^th June 1947, the land had been transferred to Lawrence Mitchell. If that had been the case (although it was not in fact the case), then the transfer of the land to Lawrence Mitchell would have inevitably been subject to and with the benefit of the agreement of 10^th June 1947. In fact, the land had actually been transferred on or about 25^th March 1947 when it was not subject to the agreement. The solicitors did not contemplate that there was to be any separate assignment after 10^th June 1947 of the benefit of the agreement.

It is correct that the correspondence of 2^nd and 4^th October 1947 between the representatives of Arthur and Lawrence Mitchell assumed that Lawrence Mitchell would be subject to and have the benefit of the tenancy to the Trustees. Those letters did not purport to describe how the result had come about or would come about. There was no statement to the effect that Arthur Mitchell was assigning the benefit of the agreement to Lawrence Mitchell. The way in which that result had come about or would come about did not matter. Obviously, Lawrence Mitchell was happy to have the land the subject of a tenancy in favour of the Trustees.

Accordingly, I conclude that the effect of the payment of rent by the Trustees and the acceptance of rent by Lawrence Mitchell from 1947 onwards produced the result that by implication from conduct Lawrence Mitchell granted to the Trustees a tenancy, the terms of which were those set out in the agreement of 10^th June 1947.

The Claimant contends that the tenant is estopped from denying that the tenancy which was admittedly granted in 1947 was granted by the agreement of 10^th June 1947, rather than by implication from payment and acceptance of rent. It is not said that the tenant in or after 1947 made any representation or promise binding it to a legal analysis as to how the tenancy was granted. The only statement from anyone at that time which might have been relevant as to how the tenancy was granted was the statement in the letter from Arthur Mitchell’s solicitors’ letter of 2^nd October 1947 to the tenants. This stated, wrongly, that after the agreement was entered into, the land had been transferred to Lawrence Mitchell. It is said that this statement was not contradicted by the tenants and so there was an estoppel by convention to the effect that the tenancy was granted by the agreement of 10^th June 1947. I do not agree. First, the distinction between a tenancy granted by the agreement of 10^th June 1947 and a tenancy granted by implication from the payment and acceptance of rent, the terms of which tenancy are those set out in the agreement of 10^th June 1947, is a somewhat subtle one. I do not regard the statement in the letter of 2^nd October 1947 as indicating one way or the other what the legal analysis was. Further, at all times until the question of paragraph 5 of schedule 1 to the 1980 Act was raised belatedly at this trial, the legal analysis as to how the tenancy was granted was irrelevant. It cannot be said that either party acted upon some common assumption as to that matter. Further, now that the matter has become arguably relevant, I do not see anything unjust in either party putting forward its contentions as to the correct legal analysis.

Having analysed the way in which the tenancy was granted in 1947, I can now directly address the question of whether the tenancy was “without a lease in writing” for the purpose of paragraph 5 of schedule 1 to the 1980 Act. There are some authorities on that question to which I need to refer. The provision which is now in paragraph 5 of schedule 1 to the 1980 Act was previously in section 8 of the Real Property Limitation Act 1833 and in section 9(2) of the Limitation Act 1939. Doe d. Lansdell v Gower (1851) 17 QB 589 considered section 8 of the 1833 Act and Moses v Lovegrove [1952] 2 QB 533 considered section 9(2) of the 1939 Act. Both of these decisions were referred in Long v TowerHamlets LBC [1998] Ch 197.

In Long, there was a document which evidenced the terms of a tenancy but the document did not itself create the tenancy. This was because in order to create the intended tenancy, the document would have had to comply with section 54(2) of the Law of Property Act 1925 and it failed to do so. Nonetheless, the intended tenant had taken possession and initially paid rent so that he became a periodic tenant and the terms of that tenancy were those set out in the document to which I have referred. Eventually, 12 years went by without any payment of rent and the tenant claimed to have acquired title to the property, relying on paragraph 5 of schedule 1 to the 1980 Act. The question was whether there was “a lease in writing”. The owner of the paper title submitted to the deputy judge (Mr Munby QC, as he then was) that paragraph 5 of schedule 1 was satisfied if the terms of the tenancy were evidenced in writing. It was argued for the person claiming title by adverse possession that the writing must be dispositive and not just evidential. The judge said at page 209D to 210G:

“In the light of the historical background, and bearing in mind the familiar distinction, drawn for example in sections 9 and 7 of the Statute of Frauds (now sections 53(1)(c) and 53(1)(b) of the Law of Property Act 1925), between those transactions required to be "in" writing, that is, where the writing required by the statute is dispositive, and those requiring only to be "manifested and proved by some writing," that is, where the writing required by the statute need be no more than evidential, one's initial impression is that the "writing" referred to in paragraph 5(1) of Schedule 1 to the Limitation Act 1980 must be dispositive and not merely evidential. Paragraph 5(1), after all, refers to a "lease in writing" (emphasis added). Indeed, as a matter of simple English language, that is what one would expect the words to mean.

But the matter does not rest there, because I have been referred to two authorities which, in my judgment, indicate that this is indeed the correct meaning of the words. In Doe d. Landsell v Gower (1851) 17 Q.B. 589 (sic) the question was whether an entry in a vestry book, signed by the tenant and by one, but not by all, of the parish officers, was a "lease in writing" within the meaning of section 8 of the Real Property Limitation Act 1833 . It was held by the Court of Queen's Bench (Patteson, Coleridge and Wightman JJ.) that it was not, because only one of the parish officers had signed the vestry book and he had not professed to sign on behalf of all. The facts of the case were very far removed indeed from the facts of the present case, but the reasons given by the judges for arriving at their decision are apposite. They are all to the same effect. Patteson J., at p. 598, made it clear that, in his opinion, what section 8 required was an "actual lease," that is, "not . . . a document, generally, but . . . a lease; . . . something which is to pass an interest." Coleridge J., at p. 599, said that what section 8 required was "a lease in writing: that is, not merely an instrument which would be evidence of the conditions of holding, but one passing an interest." Wightman J., at p. 600, said that section 8 "requires an instrument in writing that may operate as a lease." In my judgment this is clear authority for the proposition that there was no lease in writing for the purposes of section 8 of the Real Property Limitation Act 1833, and thus there is no lease in writing for the purposes of paragraph 5(1) of Schedule 1 to the Limitation Act 1980, if the writing is merely evidential. If there is to be a lease in writing the writing must itself at law "pass an interest" (to use the words of Patteson and Coleridge JJ.) and "operate as a lease" (to use Wightman J.'s words).

Moses v Lovegrove [1952] 2 QB 533, the only other authority on the point to which I was referred, is to the like effect. One of the questions in that case was whether a rent book was a lease in writing within the meaning of section 9(2) of the Limitation Act 1939 . The Court of Appeal held that it was not. Sir Raymond Evershed M.R. said, at p. 536:

"The alleged lease in writing consisted of the rent book, which was put in evidence. The judge rejected the view that the rent book was such a lease in writing within the meaning of the Act, and I think he was entirely right in that conclusion. The rent book is, I think, what it purports to be, and what it is called, a rent book, that is, a book containing acknowledgements for payment of weekly sums of rent, and containing also, in pursuance of the terms of the legislation, a reference to the conditions on which the tenant was holding his tenancy. I think that on the face of it, it was not intended to be, and is not a contract for granting a tenancy, still less a lease creating an estate. It is, I think, at most what it was intended to be, and what it is on the face of it called, a book evidencing the terms on which the tenant held."

Romer L.J., at p. 543, said that he entirely agreed with the Master of the Rolls.

These authorities make it clear, in my judgment, that a written document, whatever its terms, however clearly referable to the existence of a lease, and however comprehensive it may be in setting out the terms of the lease, is not a lease in writing for the purposes of paragraph 5(1) of Schedule 1 to the Limitation Act 1980 unless at law the document itself operates to "pass an interest" (the words used by Patteson and Coleridge JJ.), itself "operates as a lease" (the words used by Wightman J.) or itself "creates an estate" (the words used by Sir Raymond Evershed M.R.). ”

The Claimant accepted that the legal principle was correctly stated in Long v TowerHamlets LBC. I will therefore apply that legal principle to the facts of this case. I have held that the agreement of 10^th June 1947 did not create the tenancy which came into existence between Lawrence Mitchell as the landlord and the Trustees as the tenant. The tenancy between Lawrence Mitchell and the Trustees was impliedly granted by reason of the payment and acceptance of rent. The fact that the terms of the tenancy were the same as those set out in the written agreement and, to that extent, the written agreement evidenced the terms of the tenancy does not suffice to make the written agreement the relevant lease in writing. It follows that the Defendants have succeeded in showing that this case is within paragraph 5 of schedule 1 to the 1980 Act, subject to the further argument which the Claimant has raised to which I now turn.

The Claimant has argued that the Defendants are not able to rely on paragraph 5 of schedule 1 to the 1980 Act because the tenancy which was in existence on and after 8^th October 1974 (the date of the last payment of rent) was a business tenancy with security of tenure under Part II of the Landlord and Tenant Act 1954 (“the 1954 Act”).

There was no real discussion before me as to whether the tenancy was within Part II of the 1954 Act. For the reasons which I will give, I consider that it does not matter whether the tenancy was within the security of tenure provisions of the 1954 Act on and after 8^th October 1974. If it had mattered, I would have needed to consider whether the case fell within section 41 of the 1954 Act particularly if the tenant at the relevant time was the Probate Judge. However, I will assume that the tenancy was within the 1954 Act and explain why I do not consider that reliance on the 1954 Act is of any assistance to the Claimant.

I will consider the position first by reference to the statutory wording and then by reference to the decided cases to which I was referred. Paragraph 5(1) of schedule 1 to the 1980 Act operates in a different way from a more typical case of adverse possession, for example, a case which is governed by paragraphs 1 and 8 of schedule 1. In that more typical case, the land is in the possession of a trespasser. At that time, the owner of the paper title has an immediate right to possession and time runs against such owner. In a case which is within paragraph 5(1) of schedule 1, the land is subject to a tenancy. The tenant is lawfully entitled to be in possession as tenant of the land. While the tenancy subsists, the landlord is not entitled to possession. But yet, for the purposes of paragraph 5 of schedule 1, the tenancy is “treated” as being determined at the expiration of the first period of the tenancy and the landlord’s right of action for possession is “treated” as having accrued at that date or, if later, the date of the last receipt of rent. Because the statute “treats” these things as having happened, it is nothing to the point that they have not actually happened. Thus, time runs under the 1980 Act against a landlord who has not given notice to quit to determine the tenancy and who is not entitled to possession. In those circumstances, it seems to me to be irrelevant whether the tenancy which the landlord has taken no step to determine, could be determined at common law or must be determined in accordance with Part II of the 1954 Act.

When the 1954 Act applies, the landlord’s ability at common law to determine a periodic tenancy is controlled by the statutory provisions. A common law notice to quit will not suffice; there must be a notice which complies with the Act, for example, a landlord’s notice under section 25 or a tenant’s notice under section 26. The tenant may be entitled to apply for a new tenancy of the premises or part thereof. While that application is under way, the current tenancy continues. The application may result in the court ordering the grant of a new tenancy with the result that the current tenancy will in due course come to an end and a new tenancy will be granted. It is not necessary to refer to the specific statutory provisions which are well known, These provisions give business tenants considerable security of tenure. However, the 1954 Act does not have the effect of making the current tenancy one which can never be determined.

It was argued on behalf of the Claimant that when one considers the operation of paragraph 5(1) of schedule 1 in relation to a tenancy from year to year, the provision only operates in accordance with its terms if the tenancy can be determined by an ordinary half year’s notice to quit at common law. If the tenancy was subject to a requirement that the notice to quit be a notice of 1 year or 2 years or one which could only be served on the happening of a specified event then it was submitted that paragraph 5 of schedule 1 could not be invoked by the tenant. Similarly, it was submitted that because the 1954 Act imposes restrictions on the ability of a landlord at common law to determine a periodic tenancy, paragraph 5 of schedule 1 could not apply. I am unable to accept that submission. There is nothing in the language of paragraph 5 of schedule 1 to support it. Paragraph 5 “treats” the tenancy as having determined and “treats” the right of action as having accrued while the tenancy still subsists and irrespective of what notice or other steps are needed to bring the tenancy to an end.

What then of authority? The interpretation of the provision which appeals to me is supported by the decision of the Court of Appeal in Moses v Lovegrove [1952] 2 QB 533. In that case, the tenancy was protected by the Rent Acts so that the landlord would have to establish a right to possession under those Acts before he could recover possession. It was held that the operation of the Rents Acts were “entirely beside the point”: see at page 540 per Evershed MR. That case was complicated by the fact that a right of action was deemed to have accrued in June 1938 and the tenancy only came within the Rent Acts on 1^st September 1939. Further, the court principally considered whether the tenant was in “adverse possession” which was required by section 10 of the Limitation Act 1939, a provision repeated in paragraph 8 of schedule 1 to the 1980 Act, which I will consider below.

In Onyx (UK) Ltd v Beard, Hart J, 14 March 1996, unreported (although there is a summary of the actual decision at [1996] NPC 47), the judge referred to the possibility of the operation of paragraph 5 of schedule 1 being affected by the tenancy being within Part II of the 1954 Act but he recorded that he had heard no argument on the point and the case was decided on another ground.

The possible relevance of Part II of the 1954 Act to paragraph 5 (and paragraph 8) of schedule 1 to the 1980 Act was referred to in Long v TowerHamlets LBC [1998] Ch 197 at 219-220 but the point was left open.

The effect of the tenancy being within Part II of the 1954 was a matter for decision in the County Court case of Perry v New Islington and Hackney Housing Association, Judge Cowell, 14^th January 2004, unreported. In that case, the judge held that it was implicit in the statutory provisions, and in paragraph 5 of schedule 1 to the 1980 Act in particular, that there must be not only a periodic tenancy but there must also be: “no impediment precluding the determination of the tenancy, that being an essential feature without which the right of action to recover the land cannot arise”: see at [28]. This decision and the others to which I have referred are discussed in Jourdan and Radley-Gardner on Adverse Possession, 2^nd ed., at paragraphs 24-37 to 24-41. The authors do not agree with the reasoning in Perry. I also am unable to accept that reasoning. It is contrary to the express words of paragraph 5(1) of schedule 1 to the 1980 Act. When paragraph 5 applies in accordance with its wording, the tenancy is “treated” as having determined and the right of action is “treated” as having accrued. It is nothing to the point that the tenancy has not determined nor that certain notices and other steps would have to be taken before the landlord was actually able to determine it.

Accordingly, I reject the Claimant’s arguments based on the 1954 Act.

The result of the foregoing is that, pursuant to paragraph 5 of schedule 1 to the 1980 Act, the right of action to recover the southern section accrued to the freeholder on 8^th October 1974. However, paragraph 5 is subject to the provisions of paragraph 8 of schedule 1. I have set out paragraph 8 earlier in this judgment. In order for the right of action to accrue and for time to start to run, the relevant land must be “in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as “adverse possession”)”.

Paragraph 8 of schedule 1 refers to “some person in whose favour the period of limitation can run”. This phrase is not directed to the nature of the possession enjoyed but to the capacity of the squatter: see J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at [35] per Lord Browne-Wilkinson. Thus if the person in possession is there as the licensee of the owner of the paper title, time does not run. Similarly if the person in possession is the tenant of the land. However, in a case which is within paragraph 5 of schedule 1, the tenancy which actually exists is treated as having determined and so time can run in favour of the person who is actually a tenant of the land.

The question which arises under paragraph 8 of schedule 1 is whether the tenant of the southern section continued in possession of that land for 12 years from 8^th October 1974. If one focussed on the actual legal position, it would be relatively easy to answer “yes” to that question. It seems to have been accepted that before 8^th October 1974, the tenant was in possession of the southern section, as well as the middle section (and presumably the northern section also). There was no evidence that on 8^th October 1974, the tenant gave up possession of the southern section. There was no evidence that, when the club bought the middle section on 14^th March 1975, the tenant gave up possession of the southern section. Further, the law will readily ascribe possession to the person who is legally entitled to possession (as a tenant is): see Powell v McFarlane (1977) 38 P&CR 452 at 470 in a passage approved by Lord Browne-Wilkinson in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at [40]. It was also said in Powell v McFarlane at 472 that “the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession” and this comment would also apply to a tenant entitled to be in possession.

Although I have discussed the actual legal position, i.e. with the tenancy of the southern section continuing on and after 8^th October 1974, for the purposes of paragraphs 5 and 8 of schedule 1 to the 1980 Act, one must consider the position on the basis that the tenancy ended on that date. So, after that date, one cannot “ascribe” possession to someone who was previously the tenant. The person who was the tenant is no longer the tenant; he may be “holding over” after the end of the tenancy or he may not be in possession at all. Nonetheless, it is established that the court approaches a case where a tenancy is treated as having determined differently from the way in which it approaches a case where the question is (pursuant to paragraphs 1 and 8 of schedule 1 to the 1980 Act) whether the owner has discontinued possession or been dispossessed and whether a trespasser has taken possession of the relevant land. This is shown by the decision of the Court of Appeal in Williams v James [2002] 3 EGLR 69. This case considered the operation of paragraphs 5 and 8 of schedule 1 to the 1980 Act. The leading judgment was given by Buxton LJ, with whom Carnwath and Schiemann LJJ agreed. At [15], Buxton LJ set out the argument for the appellant (which was later rejected) in these terms:

“Second, as a matter of law, the effect of para 5 was only to deem the tenancy to be at an end for the purposes of the Limitation Acts, so that the paper owner could not object to time running on the sole ground that an ex-tenant was there by grant. The possession obtained by operation of law by the creation of the tenancy expired with the expiry of that tenancy. Thereupon, the tenant had to establish possession by corpus and animus in the same way as any other person, and he had to do so under the rules envisaged under para 8 of the Schedule, as had been understood in the well-known judgment of Slade J (as he then was) in Powell v McFarlane, recently upheld, in all material matters, by the House of Lords in JA Pye (Oxford) Ltd v Graham [2002] UKHL 30.”

At [18], Buxton LJ updated a passage in the judgment of Russell LJ in Hayward v Chaloner [1968] 1 QB 107 at 122F, with Buxton LJ saying:

“… I will substitute for Russell LJ's references to the then legislation references to the relevant paras of the Schedule, which are in the same terms as the statutory provisions to which Russell LJ was referring. The lord justice said, at p122F:

“I have no doubt that for this purpose the possession of a tenant is to be considered adverse once the period covered by the last payment of rent has expired so that paragraph 8(1) does not bear further upon paragraph 5. Nor do I doubt the applicability of paragraph 5 to the present case just because the freeholders were content that the rector should not pay his rent and did not bother to ask for it for all those years. In Moses v Lovegrove, in this court it was assumed on all hands when paragraph 5 apparently operates, adverse possession starts: see especially Lord Evershed, and Romer LJ. The principle clearly accepted was that once the period covered by the last payment of rent expired, the tenant ceased to be regarded by the Limitation Acts as the tenant.” ”

and continued at [19] to [23] as follows:

“[19] (2) However, since [counsel for the Respondent] conceded in terms that para 8 applies to every case covered by the Schedule, she is not able to rely upon Russell LJ in his literal terms. Hayward was a case where there was found to be actual possession on the part of a former tenant throughout the 12-year period, so the issue argued in our case, that the claimant did not have anything that could properly be called "possession" at all, and possessed because, and only because, of his status as a tenant, did not arise. I think that the proper way of approaching Russell LJ's observation is to concentrate upon his reference to adverse possession. Russell LJ did not have the benefit of the exposition of this expression that is now to be found in the speech of Lord Browne-Wilkinson in Pye, at paras 35 to 38. However, I cannot think that the lord justice made the error there identified of thinking that, for possession to be adverse, there must be a positive act of ouster or dispossession. And, in any event, as [counsel for the Respondent] pointed out, that latter case of ouster or dispossession is addressed in the Schedule to the Limitation Act by para 1, and not by para 5, para 1 specifically directing itself to what occurs where there has been an act of dispossession or discontinuance. Rather, Russell LJ pointed out that upon the determination, at least for Limitation Act purposes, of the tenancy, the possession held by the tenant moves from being possession with the landlord's consent to being possession held without his consent, and thus, for limitation purposes, adverse.

[20] (3) I agree that this analysis does not exclude the possibility that a tenant might have so feeble a connection with the land (the example given in argument was of a man who has gone off to Australia leaving the front door of the demised premises open) that, upon the determination of the tenancy, he could not be said to be in possession at all. But that, in my view, would have to be an extreme case. The judge specifically found that it did not arise here, by his findings at p28 of his judgment, which I have already set out.

[21] (4) It follows from that analysis that [counsel], for the appellant, was, in my judgment, wrong in his argument that, upon the determination of the tenancy, the matter ought to be looked at afresh, by straightforward application of the approach in Powell, without regard to the fact that the tenant was a tenant holding over. Such an approach would plainly be inconsistent with what this court said in Hayward. I consider, therefore, that Mr Cooper's predecessor in representing the appellant was, in fact, correct when he said:

The true distinction between a "trespasser case" and a "former tenant case" is that in the former, animus possidendi is required in order to establish that the paper owner has been dispossessed. That is not necessary in a "former tenant" case, because as the freeholder has permitted the tenant into possession, he will normally continue in possession, just as he did before the payment of rent stopped.

[22] Mr Cooper specifically disclaimed that passage, as indeed he had to do. In my respectful judgment, it, at least in the second sentence, was correct.

[23] (5) It was, however, sought to displace the judge's finding as to continuous possession by an argument that that finding was contrary to the facts. In view of the effect of the pre-existing tenancy, which I have already indicated and which the judge found, that argument could, in my view, only be an argument that possession had been lost by the operation of para 8(2) during the currency of the 12 years. That argument was advanced again in the original skeleton argument, but, in my view, was not well founded.”

Subject to paragraph 8 of schedule 1 to the 1980 Act, the owner’s right of action for possession of the southern section accrued on 8^th October 1974. It was accepted at the trial that on 2^nd November 1990 there was an acknowledgment of Mr Mitchell’s title, for the purposes of section 29(2) of the 1980 Act. Accordingly, I will focus on the question whether there was 12 years possession for the purposes of paragraph 8 of schedule 1 to the 1980 Act in the period from 8^th October 1974 to 2^nd November 1990.

Immediately before 8^th October 1974, the tenant under the 1947 tenancy was in possession of the southern section. At that time, the tenant was entitled to possession under the tenancy and there is nothing to support a finding that the tenant was not in possession. At that time, the tenant was whoever was the representative of the estate of Mr Staddon or the Probate Judge. It is probable that the tenant was not personally in possession of the southern section but the tenant had for many years permitted the club to use the tenanted land and so the tenant was in possession through its licensees, the members of the club.

On 14^th March 1975, Mr Mitchell conveyed the middle section to four trustees for the club. There was no evidence as to whether anything was said about the use of the southern section. There was no evidence that anything changed in relation to the southern section as a result of the transfer of 14^th March 1975.

There was detailed evidence at the trial as to the use made of the southern section after 1974/1975. That evidence was given and was cross-examined on the basis that the question before the court was whether the club or someone on behalf of the club had dispossessed the owner and had taken possession for the purposes of paragraph 8 of schedule 1 to the 1980 Act on the basis that the relevant test for possession was that laid down in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419. Accordingly, when evidence was given about grass cutting in the southern section, questions were asked as to how often the grass was cut and in what way and for what purpose. That evidence is relevant for the purposes of applying paragraphs 5 and 8 of schedule 1 to the 1980 Act as interpreted by Williams v James [2002] 3 EGLR 69 but many of the matters of detail explored in the evidence are not of any real importance. In those circumstances, I can make my findings of fact in relation to possession after 8^th October 1974 relatively concisely.

At all times after 8^th October 1974, there was no physical feature which separated the middle section from the southern section. Conversely, there was a physical feature, a barbed wire fence, which separated the southern section from the pond area. The appearance on the ground of the middle section and the southern section was that they were occupied together by the club.

I was provided with aerial photographs of the appearance of the middle section and the southern section at various times. A photograph dating from 1970 shows the two areas occupied together. There was a difference in the treatment of the grass at various points in that some of the grass was close mown and some of the grass was cut but not close mown. In 1970, the close mown area extended into the southern section. A 1983 photograph suggests that the close mown area did not extend into the southern section but the other cut area did so extend. Photographs from 1984, 1988 and 1989 also show that the grass was cut in the southern section.

I heard oral evidence from a large number of members of the cricket club. Their involvement related to different periods. As I am focussing on the period 1974 to 1990, the more relevant witnesses were Mr Mourton (1966 to 1975, 1978 to 1980 and 1990 to 1994), Mr Watkinson (1977 onwards), Mr Vernon (1975 onwards) and Mr Griffiths (1984 onwards).

Based on the oral evidence and the aerial photographs, I find that the tenant under the 1947 tenancy was in possession of the southern section, for the purposes of paragraph 8 of schedule 1 to the 1980 Act, holding over after the notional termination of that tenancy on 8^th October 1974, until the acknowledgement on 2^nd November 1990. In particular, the club as licensees of the tenant:

I consider that nothing happened in relation to the southern section in the period 1974 to 1990 which amounted to the tenant (through its licensee, the club) ceasing to be in possession of the southern section (within paragraph 8(2) of schedule 1 to the 1980 Act). In particular, the fact that some members of the public walked from the adjoining allotments across a part of the southern section did not mean that the tenant had ceased to be in possession of the southern section. On 25^th September 1980, Mr Mitchell granted to Severn Trent Water Authority an easement to lay construct and maintain a water main and ancillary works along a strip of land which appears to have been along the southern boundary of the middle section and therefore part of the southern section. The grant of the easement itself did not cause the tenant to cease to be in possession of the southern section. There was no evidence as to what happened in relation to the construction of the main. In those circumstances, I have no evidence on which I could make a finding that the tenant had given up possession of this strip of land for any length of time as distinct from the grantee of the easement exercising its rights under the easement in a way which did not preclude the tenant being in possession of the strip. There was evidence that before 1990, the club dumped bricks or rubble on the southern section with a view to forming a car park and that an agent on behalf of Mr Mitchell had insisted that the rubble be removed whereupon the club removed it. There was no reliable evidence that this happened before 8^th October 1986 (i.e. 12 years after 8^th October 1974). Mr Sherwood said that the event occurred “late, mid to late 80s”. Counsel for Mrs Mitchell put to Mr Williams that the events were “late 1980s” but Mr Williams did not know. In any case, I would not consider that the club’s compliance with Mr Mitchell’s request amounted to the tenant (through the club) ceasing to be in possession of the land.

The northern boundary of the southern section is the boundary with the middle section which is defined by the conveyance of 14^th March 1975. As to the southern boundary of the southern section, I consider that the boundary should be considered to be the line of the barbed wire fence which separated the southern section from the pond area. There is no basis on which one could select any other line further north than the barbed wire fence.

It follows from the above that the tenant was in adverse possession for the purposes of paragraphs 5 and 8 of schedule 1 to the 1980 Act for 12 years from 8^th October 1974. Accordingly, on 8^th October 1986, Mr Mitchell’s title to the southern section was extinguished and the tenant was entitled to a possessory title to that land: see Re Jolly [1900] 2 Ch 616.

As I explained earlier, the identity of the tenant after the death of Mr Staddon on 22^nd June 1974 has not been established in these proceedings. Nonetheless, it is open to the Defendants who are sued for possession by Mrs Mitchell to demonstrate that Mr Mitchell’s title was extinguished on 8^th October 1986. Further, the present club is in occupation of the land with the licence of the tenant, whoever that is.

It was accepted at the trial that a letter written on 2^nd November 1990 by the solicitor for the club to Mr Mitchell amounted to an acknowledgment of Mr Mitchell’s title. It was not argued that this letter was not an acknowledgment on the ground that it was written on behalf of the club and not the tenant. In any case, if the letter was an acknowledgement, it came after Mr Mitchell’s title was extinguished and did not revive that title: see Nicholson v England [1926] 2 KB 93.

I have considered whether it would be appropriate to consider making alternative findings of fact on the basis that the above reasoning might not be accepted by an appeal court. I do not think that it is appropriate for me to do so. Both sides before me accepted that, at all material times after 8^th October 1974 (until any extinguishment of Mr Mitchell’s title), there was a tenancy of the southern section. I have rejected the argument for Mrs Mitchell that there was a lease in writing. If I had accepted that argument, then the non-payment of rent since 1974 would not have resulted in Mr Mitchell’s title being extinguished: see Doe d Davy v Oxenham (1840) 7 M&W 131 and Barratt v Richardson [1930] 1 KB 636. In those circumstances, it would not be relevant to inquire into the facts as to the use and occupation of the southern section. The position would be that Mrs Mitchell would be the owner of the southern section subject to a continuing tenancy vested in the estate of Mr Staddon. If Mrs Mitchell wished to recover possession of the land, she would need to take steps to determine that tenancy. It is not appropriate for me to consider what the position would then be. If there had not been a tenancy in existence after, say 1974 or 1975, then questions would arise as to whether the use of the southern section was sufficient to satisfy the test in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419. I heard detailed submissions on that question before the Defendants changed their stance to rely on paragraph 5 of schedule 1 to the 1980 Act. At the end of the trial, both sides accepted that the 1947 tenancy had continued at all material times, so it follows that it would be inappropriate for me to make findings in the alternative on the basis of a case which no one now puts forward.

I will now discuss the questions arising in relation to the pond area. The first question is whether I should consider the pond area at all. Mrs Mitchell’s claim did not relate to the pond area but only to the southern section or part of it. This was on the basis that the club was not claiming any rights in relation to the pond area and, indeed, Mrs Mitchell had been in possession of the pond area for many years. Similarly, the Defence and Counterclaim related only to the southern section and made no claim to the pond area. At the trial, the Defendants did not set out to establish that the club had done anything in relation to the pond area which could amount to the club being in possession, or the tenant holding over in possession, of the pond area. After the evidence was completed, I was asked to give the parties permission to re-plead their cases in relation to paragraph 5 of schedule 1 to the 1980 Act. The Defendants did not ask for, and were not given, permission to amend their case so as to include a claim to title to the pond area. If they had sought that permission, I would not have granted it in view of the fact that the trial had not involved any investigation as to possession of the pond area.

When the Second Defendant served his pleading in relation to paragraph 5 of schedule 1 to the 1980 Act, he referred to the land which was the subject of the 1947 tenancy, excluding the northern section and the middle section. Although this might not have been immediately apparent, that way of describing the land would include the pond area as well as the southern section. As I understood it, counsel for the Second Defendant considered that the logic of the case required him to rely on paragraph 5 of schedule 1 to the 1980 Act in relation to the pond area as well as in relation to the southern section. In fairness to the Second Defendant, apart from the suggested logic of the position, I doubt if the Second Defendant ever wanted to advance the case that Mrs Mitchell’s title to the pond area had been extinguished.

I consider that in view of the original pleadings, the course of the trial and the permission to re-plead granted at the end of the evidence, it is not open to the Second Defendant to assert that Mr Mitchell and later Mrs Mitchell’s title to the pond area has been extinguished.

If title to the pond area were in issue in these proceedings, I would not be prepared to find on the evidence that the 1947 tenant had held over in relation to the pond area after the notional determination of that tenancy on 8^th October 1974. I had no evidence to suggest that the tenant or the club ever did anything in the pond area. Further, the documents suggest that Mr Mitchell was in possession of the pond area by 1990 although the documents do not show whether the tenant was ever in possession of the pond area and, if so, when it ceased to be in possession of that area.

The result in this case is that the Defendants have established that Mr Mitchell’s title to the southern section was extinguished on 8^th October 1986. My reasoning produces the result that the representative of the estate of Mr Staddon has acquired a possessory title to the southern section. Counsel should seek to agree a form of order which reflects the fact that no representative of that estate is a party to these proceedings.

Finally, I wish to make a brief comment on the result in this case. The particular way in which Mrs Mitchell’s claim to the southern section has failed has been based on paragraph 5 of schedule 1 to the 1980 Act. As explained in Jourdan and Radley-Gardner on Adverse Possession, 2^nd ed., at paras. 24.19 to 24.20, the Law Commission recommended in 1977 that the predecessor of that provision be repealed but Parliament did not accept that recommendation when it enacted the Limitation Amendment Act 1980 and the Limitation Act 1980. Further, the authorities on the meaning of a “lease in writing” lay down a technical test which is not satisfied by clear written evidence as to the existence of and as to the terms of a tenancy. Further, the facts of this case are highly unusual so that my analysis of the legal position brought about in 1947 would have been far from obvious to anyone over the years. I would understand if Mrs Mitchell felt that the result in this case, arrived at in that way, was very harsh. As against that, I have not had to consider whether the same overall result would have been produced if there had been no tenancy in existence after 1975 and I had been called on to apply the law as declared in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419.