Ashe v National Westminster Bank plc [2008] 1 WLR 710

MORTGAGES – ADVERSE POSSESSION – LIMITATION ACT 1980 – IMPLIED CONSENT TO POSSESSION

Facts

Mortgagors, who were husband and wife, owned a long leasehold interest in the house in which they lived. In 1989 they granted a charge by way of legal mortgage over the property in favour of the appellant bank (N). Formal demands by the bank for payment were made in 1992 and there were intermittent payments by the husband until January 1993, after which he was declared bankrupt. In 2006 the husband’s trustee in bankruptcy brought proceedings for a declaration that the bank’s charge had been extinguished under section 17 of the Limitation Act 1988, as the couple had been in adverse possession of the premises for the requisite unbroken period of 12 years.

Issues

Whether a right to possession of premises, which remained unenforced as against those in present possession, could be taken as an express or implied grant of consent to said possession, such that it could not fairly be described as ‘adverse’ and would therefore fall outside the ambit of the Limitation Act 1980.

Decision/Outcome

The requirement of adverse possession had to be applied in accordance with the articulation of that doctrine in JA Pye (Oxford) Ltd v Graham[2002] UKHL 30. Adverse possession referred to the capacity of a person in possession of land and not to the nature of that person’s possession. Possession had to be given its ordinary meaning and C were in ordinary and exclusive possession of the property for the relevant period. Moreover, the fact that N had a latent right to possession that they chose not to enforce could not be construed as an implied permission for C to remain on the property; JA Pie ([2002] UKHL 30) applied.