TENANT ENCROACHMENTS AND ADVERSE POSSESSION
The below is material that will not feature in the imminent update to the Second Edition of Adverse Possession (referred to below as the "Main Work"). It is an attempt to trace the history of the doctrine of tenant encroachments, which has slightly oddly taken off as an area of law, and to try and understand why it does not fit with the law of adverse possession. I though it might therefore be useful to have it in one place.
There is also a very good article on it by Dr E Lees, which is available on an open basis at the following link:
https://www.repository.cam.ac.uk/bitstream/handle/1810/246733/Lees%202015%20The%20Conveyancer%20and%20Property%20Lawyer.pdf?sequence=1
Encroachments can now be usefully understood in light of the clarification of the law by the Hong Kong Court of Final Appeal in Chau Ka Chik Tso, and the majority judgment of Lord Scott of Foscotte NPJ:
https://www.hongkongcaselaw.com/secretary-for-justice-v-chau-ka-chik-tso-and-others/.
It seems most likely that the modern law of encroachments will, if the point ever gets to a high enough Court in this jurisdiction, either be killed off or simply be absorbed back into the law of adverse possession. Whilst the below material and the article by Dr Lees both show that this is probably ahistorical, there is a good argument that this rather strange doctrine has little or no place in the modern world, particularly shorn of the particular rules and limitations that were placed on it historically. Indeed, Charles Harpum argues that the doctrine should not be treated as even live for the purposes of adverse possession under the Land Registration Act 2002; see paragraph 176 of his response to Law Com 227:
https://www.falcon-chambers.com/images/uploads/articles/Response_to_LC_CP_227_on_Land_Registration_%282%29.pdf
When arguing these kinds of cases, the older authorities may need to be cited with great caution.
Encroachment: The History and the Principles
We are here concerned with the question of what happens when a tenant, T, who has had a parcel of land demised to him by his landlord, L, encroaches on further land in the course of that tenancy. That land may be further land belonging to L, or it may be land belonging to a third party, X. In what follows, we set out by way of illustration some of the basic principles insofar as they are discernible from the older cases, and compare them in each case with the modern law. The doctrine of encroachments was developed to regulate aspects of the relationship between superior and inferior right holders to land. In modern terms, that means the relationship between a landlord and a tenant.[1]
In the older textbooks, the presumption is largely (but not solely) considered in the context of delivery up of possession by the tenant at the end of his term. The practical relevance of the presumption arising from encroachment cantered on the question of what it was that the tenant was to deliver up possession of in compliance with his covenant to do so at the end of the lease.[2] As a result of this focus, little consideration being given to the rights of the tenant to the encroached land during the subsistence of his lease, and to the question of what the status of the tenant was during the running of any limitation period, if applicable. It would appear wrong, however, to conclude that the doctrine was confined simply to the question of what it was that the tenant had to deliver up at the end of his term. For instance in Tabor v Godfrey,[3] it was decided that even if a challenge was made during the currency of the term by L, T could rely on the defence that the encroached land was part of his demise. This raises the question of the fundamental basis of the presumption.
What Is An Encroachment?
The first thing to be examined is what is meant by “encroachment”. It has been said to mean “an unlawful gaining upon the right or possession of another man".[4] We will see, however, that the element of unlawfulness (which would make it closer to adverse possession) is in fact not a requirement. Secondly, a review of the use of the word “encroachment” suggests that it is a term used in the context of manorial law.[5] There is some suggestion in the earlier cases that the technical concept of encroachment entailed the taking of possession of the wastes of the manor by a tenant, most likely with the further limitation that this taking had to be by way of enclosure.[6] On that footing, therefore, the doctrine operated in a limited way. Those limitations operated in two respects. First, it had to be land that was waste. Secondly, the taking had to be in the form of enclosure.[7] On this footing, a taking other than by enclosure, or enclosure of land that was not waste, was not an “encroachment” in the proper, limited and technical sense of that term. If so confined, then this may explain why the doctrine was less objectionable historically and disappeared from view for so long – it applied only to land which was largely of little intrinsic worth. The above is supported by a great deal of nineteenth century textbook authority. Lightwood, author of a celebrated treatise on the possession of land, wrote in his textbook The Time Limit on Actions,[8] that
In general, a possessory title obtained by a tenant to waste – that is unenclosed – land adjoining or near to his holding is obtained for the benefit of his landlord, and the land so acquired must be given up with the demised land at the end of the tenancy””.
Other textbooks similarly also focus on waste.[9] Cole on Ejectment[10] also refers to encroachment on waste when discussing the encroachment doctrine,[11] but does not refer to waste as an ingredient of encroachment when discussing the delivery up obligations and remedies of the landlord at the end of the term.[12] Those older authorities which discussed the presumption generally refer to it as related to waste.[13]
The break of the link between encroachments and waste appears to have come with Kingsmill v Millard (1855) 11 Ex 311, in which Parke B (at 317) expressed the rule as follows: “it is laid down in all the cases – whether the inclosed land is part of the waste, or belongs to the landlord or third person – that the presumption is that the tenant has inclosed it for the benefit of his landlord, unless he has done some act disclaiming the landlord’s title”.
Although the later cases take Kingsmill as definitively stating that there was no link between encroachment and waste, and that the encroachment applies to any kind of land, it seems doubtful that Kingsmill is in fact authority for that point:
(1) The cases cited to the Court in Kingsmill (see footnote [7]) were ones in which it was clear that there is a distinction between land that is waste (which is subject to the presumption) and land that is not waste (which is not).
(2) Kingsmill was, on the facts, a case on waste (see at 314) and was therefore strictly obiter on the question of whether the rule applied in relation to land that was not waste.
(3) It appears from the report of the argument before the Court that the parties were arguing on the basis that the rule was confined to waste.[14]
That would suggest that a narrow reading of Kingsmill However, the wider reading of Kingsmill was treated as orthodox in Smirk v Lindale Property Developments Limited,[15] a case which was not concerned with waste land, and has been applied thereafter:
(1) At first instance, Pennycuick V-C began his survey of the cases with the above-cited statement of principle in Kingsmill (at 323 – 324), but without considering the earlier authorities which call into question the authority of that statement, which is, insofar as it relates to land which is not waste, obiter. He considered the Kingsmill decision to be to the effect that there was no restriction of the law of encroachments to waste, and that Kingsmill was a decision of high authority, and correct.
(2) He did not consider that the subsequent cases which appeared to confine the doctrine to waste were in conflict with the Kingsmill formulation:
a. In considering Whitmore, he noted that whilst the focus of the judgment of Willes J was on encroachment onto waste, but he went on to observe that this did not shake the authority of Kingsmill (at 324 – 326).
b. In relation to Tabor, Pennycuick V-C noted that this was not a case of waste land being encroached upon, but that the presumption was nonetheless held to apply to that case. This he concluded, rendered that case consistent with Kingsmill. It is suggested that this part of the judgment is incorrect. This is because Charles J in Tabor expressly found that ““from first to last … [the encroached upon land] has [been] occupied as if it were included in the demise”. Properly understood, it is submitted that Tabor was not a case in which the presumption applied, but rather it was a case in which the Court found that, as a matter of fact, the land was enjoyed as part of the demise so that the effect was the same.[16]
c. The Lord Hastings decision, which is consistent with the narrower statement of principle set out in the pre-Kingsmill cases, is described as unsatisfactory and wrong, but without further analysis.
d. Finally, Pennycuick V-C declined to follow Perrott JF & Co Ltd v Cohen [1951] 1 K.B. 705, deciding that it was inconsistent with the wider view of the ratio of Kingsmill, and as obiter on the point. However, only Cohen LJ’s judgment in Perrott susceptible to those two points. In fact, the majority reasoning in Perrott was entirely consistent with Kingsmill as all three judges based their decision on a positive finding (as opposed to a presumption) that the non-waste land in that case was taken with the intention of benefiting the landlord, and therefore subject to the same effects as the doctrine of encroachment. It was decided that the tenant was estopped from denying that the encroachment was part of the demise not due to some presumption, but because the estoppel was established on the facts.
With respect to the learned Judge in Smirk, it is arguable that that decision was in fact what marked the departure from the previous cases, and resulted from an overly wide reading of the Kingsmill case. The Smirk approach has, however, now become embedded in the law of England and Wales, and has been cemented by later decisions which are set out at paragraph 25.28 of the Main Work.[17]
Must Encroachment Be Without Permission?
The position in the 19th Century was that permission for enclosure did not prevent the presumption from arising.[18] In fact, an earlier strand of authorities based the operation of presumption on permission- enclosure of a kind of which the lord of the manor might have constructive notice was regarded by some as acquiescence conferring upon the encroaching party a licence which needed to be terminated before an action for ejectment could be brought.[19] However, it has been held more recently that, if the landlord and tenant were in negotiations for the tenant to buy the encroached-upon land, and if a licence arose by negotiations, then it appears that the Court might conclude that the presumption is rebutted.[20] L had s given permission the doctrine of encroachment apart from adverse possession.
What Is The Basis and Effect of the Presumption?
As set out in the Main Work, encroachment by T gives rise to a presumption that he is using the land as part of his demise, meaning that it is presumptively non-adverse to L. The presumption is rebuttable, either if he has made clear that he does not intend the encroached upon land to be part of his demise (see at paragraph 25-14 and following of the Main Work) or if the land is far away or if the tenant (see paragraph 25-33 and following of the Main Work). When the presumption is rebutted, the case is one of straightforward adverse possession in the ordinary sense. What if it was not rebutted?
Again, the older cases tend to suggest that, where the presumption was not rebutted and operated, encroachment did not have the same effect of adverse possession. Thus is was held that T simply acquired an extended demise against L which T was obliged to deliver up at the end of his term; there was no question of T acquiring a fee against L.[21] Further, in cases involving third parties, it was established that T never acquired any rights in relation to X, and it was emphatically held that L could not rely on T’s possession of X’s land during the currency of the tenancy either. This emerges from Andrews v Hailes,[22] and was expressed by Lord Campbell CJ in the following trenchant terms:[23]
I do not adopt the doctrine that the tenant steals for his landlord, and that therefore the landlord, at the end of the demise, is entitled to claim the stolen property; but I think that, when the property is taken and used as part of the holding, the tenant can as little dispute the title to it as he can dispute the title to any other part of the premises. The strange doctrine, as to stealing for the benefit of the landlord, originated in those cases where the landlord was lord of the manor, and the tenant encroached upon the waste. In such cases it might well be presumed that the tenant approved for the benefit of the lord who had a right to approve: but the idea that he could steal the land of another for his landlord is revolting to me, as it was to my predecessor Lord Kenyon.[24]
It was, however, accepted that if the presumption was rebutted (or did not apply in the first place because the encroached-upon land was not waste), then this was a simple case of limitation of actions. If the presumption applied, however, limitation was viewed as having nothing to do with it. The clearest statement to this effect is Willes J’s judgment in Whitmore v Humphries. In Whitmore, the tenant argued that he had been tenant at will of the encroached-upon part. The relevance of that was that under the law as it then stood, and specifically section 7 of the 1833 Act, time could run in favour of a tenant at will under section 2 of the Act (the general adverse possession provision at the time, with a 20 year limitation period), after a year, when the tenancy at will was deemed to expire under section 7 (unless determined earlier). As to that argument, Willes J stated as follows:
““Suppose a tenant encloses a piece of the waste belonging to the landlord, and the landlord's agent afterwards sees it, and does not interfere, from the moment of such acquiescence there is evidence from which a jury might infer a tenancy. If the defendant's contention be correct, the case would fall within the Statute of Frauds; and after knowledge on the part of the landlord and the lapse of a reasonable time for him to express dissent, and no dissent expressed, a tenancy at will would be created, and a year afterwards the Statute of Limitations would begin to run against the landlord, and after twenty years his title might be barred. This view has never been taken. In the case of Earl of Lisburne v. Davies[25] it was assumed that, if the case was to be treated as one of encroachment, the Statute of Limitations did not apply. The case must be governed, if the statute applies to an encroachment on the landlord's land, either by the general provisions of the statute, or the peculiar provision of s. 7. If the general provisions of the statute apply when the encroachment is on the land of the landlord, what becomes of the general rule of law applicable to all encroachments, namely, that the tenant is estopped from denying that the encroachment forms part of the holding—which, with reference to such a case, is really only another way of saying that he holds in such a way as that the Statute of Limitations does not apply? The case of an encroachment is a peculiar case in the law, which treats it as being part of the holding. It follows obviously that the general provisions of the Statute of Limitations do not apply to it.
Then with regard to the 7th section; that section assumes that the case referred to in it is one which falls within the general scope of the statute. It deals with the case of an ordinary tenancy at will, and does not apply to this peculiar case.
The rationale for the inoperability of limitation, at least in relation to encroachments by T against further land belonging to L, is on different bases in the cases, which are summarised in the Main Work at 25-04 and following). The bases are:
(1) That there is a licence, whether actual or based on knowledge and acquiescence or permission by L, rendering that use non-adverse.[26] Certainly the older cases were dealt with on the basis that the relationship between L and T in relation to the land encroached upon was permissive, and that a licence was created and had to be brought to an end before the action of ejectment could be brought.[27]
(2) That the presumption raised a procedural estoppel (the ““exceptio personalis) whereby a Court would not hear T’s claim to land enjoyed as part of the tenancy. In Andrews v Hailes, Lord Campbell CJ formulated the principle in the following way: I proceed on what the civil law calls exceptio personalis, and the common law an estoppel. The reference to the Civilian notion of exceptio personalis is to be understood as a common law estoppel in the sense that it operates to preclude the estopped party – the tenant – from raising certain arguments before the Court.[28]
(3) That there was created a substantive estoppel operating on the tenant preventing him from denying that he enjoyed the land as part of his demise: Perrott (JF) & Co Ltd v Cohen,[29] in which the Court of Appeal decided, in a non-waste case, that the principle that the tenant was estopped from denying the rights of the landlord applied, but on the basis that here too, as in Tabor, the tenant had treated the land as part of the demise (see at 708, 709 (the judgment of Lord Cohen to the following the jury questions in Tabor), 710 (Denning LJ deciding that the conduct of the tenant had given rise to an estoppel on the facts).
(4) A rule of law reflecting a policy to minimise disputes between landlords and tenants, and to reflect (i) the fact that the opportunity to encroach was afforded to T by reason of the underlying tenancy, and (ii) to protect the rights of L so that every incremental encroachment by T did not have to be policed: see Willes J in Whitmore v Humphries .[30]
What was unclear under the old cases, particularly in light of the varying rationales, was whether T acquired an extension to his demise (a) with immediate effect upon encroaching, (b) only from, and for so long as there was, a licence or acquiescence.[31] Despite the differences in the rationales said to underpin the presumption, what the cases are unanimous about is the irrelevance of the limitation period to the operation of the presumption.[32]
The position under the modern law is again different. In particular, limitation is relevant in relation to a claim by T against X. In order for T to enjoy X’s land part of his demise undisturbed for the term, a period of limitation needs to have expired. This bars X’s right to recover, and thus ensures that (a) X cannot bring possession proceedings against T on the expiry of the limitation period, but also (contrary to the old law) means (b) that T is barring X’s freehold title on L’s behalf, and is adversely possession for L. Whilst therefore T is not in adverse possession against L or X when the presumption operates, T is in adverse possession for L against X.
FOOTNOTES
[1] Historically, the doctrine may also have regulated the relationship between a copyholder and his lord, though there is some controversy about this: see AG v Tomline (1880) 15 Ch D 150, and the discussion in A. Brown, Scriven on Copyholds (7th ed., 1896): see at p. 417. Given that copyhold came before leasehold tenure, the presumption may have derived from the earlier form of tenure. For the position between a sub-tenant and an intermediate landlord, see paragraph 25.43 of the Main Work.
[2] H. Heathcote-Williams, Foa’s General Law of Landlord and Tenant, 8th ed, page 711.
[3] (1895) 64 LJ QB (NS) 245
[4] Easton v Richmond LR 7 QB 73.
[5] Malvern Hill Conservators v Foley 4 TLR 672.
[6] H. Woolrych, The Law Of Rights of Common (1894), at 387 and following.
[7] For the meaning of waste in this sense see Attorney-General v. Hanmer (1858) 27 L.J. Ch. 837, 840 and the discussion in Hampshire County Council v Milburn [1991] 1 A.C. 325.
[8] (1909), p.108.
[9] See e.g. Foa and Scriven, referred to above, but also Halsbury’s Laws of England, Vol 18 p. 562; L.D. Wilson, “Adverse Possession and Prescription: Based on Holding and User by Tenant” (1932) 30 Michigan L. Rev..
[10] (1857)
[11] P. 247-248
[12] P. 395. Similarly, the fifth edition of Woodfall on Landlord and Tenant does not require the land to be waste at 495, but does refer to waste as 528.
[13] Bryan v Winwood 1 Taunt. 208; Lloyd v Jones 15 M&W 579; Harrison v Murrell 8 Car & P 133; Earl of Lisburne v Davies (1866) 1 LR CP 259; Tabor v Godfrey (1895) 64 LJ QB (NS) 245; Whitemore v Humphries (1871) LR 7 CP 1; Lord Hastings v Saddler (1898) 79 LT 355 (which expressly limits the doctrine to waste and which decides that encroachments in the technical sense can only take place on land which is indeed waste and which explains why Tabor was not an “encroachment” case in the technical sense)
[14] It is notable that the textbooks at footnote 9 above also did not consider this to be the effect of Kingsmill, and the wider approach adopted in Kingsmill was not adopted in later cases like Whitmore.
[15] [1975] Ch. 317
[17] Harman J found the reference to encroachment to be ambiguous, possibly extending beyond waste, in Kensington Pension Developments Limited v Royal Garden Hotel (Oddenino’s) Limited [1990] 2 E.G.L.R. 117, at 118H-K.
[18] Whitmore v Humphries (1871) LR 7 CP 1.
[19] See cases in footnotes 26 and 27.
[20] See paragraph 25.29 of the Main Work for a discussion of the cases.
[21] Bryan v Winwood 1 Taunt 208.
[22] 2 E & B 349; 118 E.R. 797
[23] At 799, see too at 800.
[24] The case in which Lord Keynon was revolted was Doe d Colclough v Mulliner 1 Esp 456. H left open the possibility that there might, however be adverse possession where a tenant enclosed land of a third party expressly for his landlord. For another case holding limitation inapplicable during the tenancy, see Baddeley and Waller v Massey (1841) 17 QB 371 so that the landlord could bring no claim following delivery up by the tenant.
[25] (1866) 1 LR CP 259; there is no discussion of adverse possession in that case at all
[26] See the headnote to Earl of Dunraven v Williams (1836) 7 Car & P 332, where Coleridge J summed up and directed the jury as follows: “Prima facie the law presumes that every enclosure made by a tenant adjoining to the demised premises was made by him for the benefit of his landlord and there is no evidence in this case to rebut that presumption. Again, if you think that the defendant inclosed the land in question, as he has said he did, as being part of the premises comprised in the lease, his possession was not adverse; and though you may think that the inclosure has been made more than twenty years, the defendant will not, on that account, be entitled to retain possession” See similarly what is said in Tabor, and Lord Hastings v Saddler. The detail test appears to have been wrongly expressed by Lord Kenyon in Colclough v Mulliner (1871) 1 Esp. 458. Compare the Fifth Edition of Woodfall, at p. 528, where 20 years possession appears to be considered a requirement.
[27] Foley v Wilson 11 East 56 (from 1809, stating that 12 or 13 years’ use would not lead to a presumption of a grant, though would, if known to the Lord’s steward, give rise to a presumed licence); See “Titles to Encroachments In Waste Lands” (1831-2) Legal Observer, Vol III, page 367; Woodfall’s Landlord and Tenant (1831) at 547, where the law is described as still unsettled, but that the view that the tenant possesses for his landlord is the prevailing one; Harrison and Edwards, The Law of Nisi Prius (1838), 1316; S Atkinson, A Practical Treatise on Conveyancing (1838), at 277 and 573;
[28] This is not unusual. What we now understand as the substantive defence of bona fide purchaser was, in fact, in origin a procedural barrier to access to the Court of Chancery: see J. Hackney, “Usucapio and the Law of Trusts”, in J Getzler (ed), Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn.
[29] [1951] 1 K.B.705.
[30] (1871) 7 L.R. C.P. 1; Tabor v Godfrey; Baddeley and Waller v Massey 17 QB 371. In Andrews v Hailes, Coleridge J regarded the rule as giving effect to the tenant’s obligations to maintain his landlord’s boundary, which, if confused by a tenant’s encroachments, should be resolved in the landlord’s favour. The policy is extended to cases where the land belongs to a third party in Doe v Tidbury 14 C.B. 302. The underlying obligation to preserve boundaries is expressed in Attorney-General v Fullerton 2 V&B 263
[31] Earl of Dunraven v Williams 7 Car & P 332.
[32] See Main Work, at 25.39 - 25.40