Summary

A judge had been entitled to hold that the trustees of a cricket club had had a tenancy without a lease in writing, where a written agreement they had made had not validly created a tenancy but rent had been paid and accepted. He had also been entitled to hold that the club had adverse possession, having been in possession for the requisite period after the last payment of rent.

Facts

The appellant (M) appealed against a decision ([2013] EWHC 2266 (Ch)) refusing her claim for possession of land, occupation of which had been asserted by the respondent representatives of a cricket club.

M's father-in-law (X) had owned land. In early 1947 he transferred it to his son (L). However, in June 1947 X made a written tenancy agreement with the club's trustees. The trustees initially paid rent to X, but later to L. The last trustee died in June 1974; the tenant thereafter was his estate's representative. The last rent payment was made on October 8, 1974. L died in 2009; M became registered proprietor and sought possession. The judge held that the trustees had had a tenancy without a lease in writing, as the written agreement had not validly created a tenancy, and that the club had adverse possession, having been in possession for 12 years since the last rent payment.

M argued that (1) the trustees were estopped from denying the existence of a tenancy between themselves and X created by the written tenancy agreement, and since L had in fact held the reversion, the estoppel had been "fed", so the trustees remained estopped; (2) the trustees were estopped by a representation in a letter written to them by X's solicitors in October 1947 that the transfer to L had taken place after, not before, the written agreement was made; (3) there was estoppel by convention in that L and the trustees had acted on the shared assumption that the trustees held under the written agreement; cases indicating that no estoppel arose in the instant circumstances were non-contractual cases not applicable to a contractual situation; (4) the trustees' successor in title had not been in possession for the requisite period to establish adverse possession; there had been no-one to grant the club a licence after the last trustee's death, and there was no evidence that the club had been licenced to occupy the land.

Held

(1) The written tenancy agreement had created a tenancy by estoppel between X and the trustees. L's title to the land did not mean the estoppel between X and the trustees had been "fed". An estoppel was fed if, after the tenancy by estoppel had been granted, the grantor acquired title; that had not happened, Bell v General Accident Fire & Life Assurance Corp Ltd [1998] L. & T.R. 1 applied (see paras 35-38 of judgment). (2) The solicitors' letter had not been a representation made by the trustees but one made to them. There was no evidence that the trustees had encouraged the misrepresentation or assumed responsibility for it (para.41). (3) The differences between the "contractual" and "non-contractual" principles were more apparent than real, Revenue and Customs Commissioners v Benchdollar Ltd [2009] EWHC 1310 (Ch), [2010] 1 All E.R. 174 and Stena Line Ltd v Merchant Navy Ratings Pension Fund Trustees Ltd [2010] EWHC 1805 (Ch), [2010] Pens. L.R. 411 considered. Further, it was not clear that the instant case was contractual, namely where the estoppel related to a commonly assumed, but inaccurate, interpretation of contractual terms. The instant alleged estoppel was as to how the tenancy came into being. There was only a subtle distinction between a tenancy granted by the written agreement and a tenancy granted by implication from payment of rent, the terms of which were the same as those in the written agreement. In 1947 no-one would have considered the legal analysis of what had happened. The judge had been correct to hold that there had been no common assumption as to the legal analysis. Further, he had been entitled to find that a tenancy on the terms of the written agreement had arisen: where there was a lease which was not operative, and rent was paid and accepted, a periodic tenancy, on terms of the lease compatible with such a tenancy, could be created (paras 52-60). (4) The possibility that the tenancy had vested in a probate judge following the last trustee's death was not material to the continuation of possession. Although, when property vested in him under the Administration of Estates Act 1925 s.9, the probate judge was not in the same position as a trustee, that did not mean his title was shorn of substance, Deans, Re [1954] 1 W.L.R. 332, Fred Long & Sons v Burgess [1950] 1 K.B. 115 and Egerton v Rutter [1951] 1 K.B. 472 considered. The probate judge would have been in possession in the same way the trustees had. There was no reason why any licence granted by the trustees to the club should have ended (paras 68-70). The judge had been entitled to hold that the tenant had granted a licence to club members, on the basis that it had for many years permitted the club to use the land. The written agreement's terms required the tenant to do that. There was no reason why the licence should have ended on the trustee's death, or why the trustee's successor should not have continued in possession. Although rent was not paid after October 1974, it could not be inferred that the licence had ended: the tenancy had continued and the club had continued to use the land. The judge had been entitled to hold that the tenant was a person in whose favour the limitation period could run, and that by virtue of the club members' use of the land as the tenant's licensees, the tenant had been in possession from October 1974 and thereafter for the requisite limitation period (paras 83, 88-91).

Appeal dismissed