The Gazette 1987

JANUARY/FEBRUARY 1 9 87

GAZETTE

London Property Trust Ltd. v High Trees House Ltd 7 and continued:- "Conversely, if a landlord should allow a tenant to occupy adjoining property, and by his conduct represents to the tenant that it is included in the demise, and the tenant acts on it by using it as such, the landlord cannot after- wards turn around and eject the tenant from it during the term of the lease. That was decided in Tabor v Godfrey. " 10 Stated in this fashion, the law governing encroachments by tenants — at least over land belonging to the landlord — seems to be only a particular application of what is loosely called proprietary estoppel 19 yet the view expressed by Denning L. J. should be con- trasted with the approach of the Court of Appeal just 9 months earlier in King v Smith :9a (mention- ed in another context, post) where the presumption was held applic- able despite what appears to have been an acceptance by the Court that the Statute had run against the landlord. That principles akin to estoppel were drawn upon by Denning L. J. in Perrott was understandable enough, though, since the tenant there had expressly represented to the landlord that the property encroached upon (essentially lavatories) was part of the demis- ed premises. It followed, according to all the members of the court in that case, that the tenant's conse- quent inability to deny that the lavatories were included in his lease in respect of the delapidated state into which the lavatories had fallen into. A further interesting consequence of locating the basis of the encroachment doctrine in the law of estoppel is that (presumably) 12 years need not have elapsed before the tenant must be taken to be holding the particular property under the same terms, and subject to the same conditions, as the demised lease. Having regard to the fact that Perrott, and in particular, the dicta of Denning L. J., supra, were refer- red to by Pennycuick V.C. in Smirk v Lyndale Developments, 20 it is rather surprising that his lordship's own judgment proceeded on the apparent footing that principles of adverse possession were involved. Nevertheless, it would be tempting to say that this discernible dif-

ference in approach to the problem of encroachments has no practical consequence. On one view of the doctrine's operation the tenant does not adversely occupy his landlord's adjoining land but rather is to be regarded as taking it by way of addition to the land com- prised in his tenancy; on the other view the tenant's possession is adverse but is presumed to be for the benefit of the landlord so that any possessory title the tenant ultimately acquires is merely co- terminous with his own tenancy. Whilst, therefore, these two analyses are mutually exclusive in their operation, the same result is achieved by the application of either with the important proviso that the former view makes the covenants contained in the te- nant's demise applicable in respect of the property encroached upon and, furthermore, should not re- quire the tenant to have occupied the property for 12 years. It is not clear, however, what application the former analysis can have where the land encroached upon does not belong to the landlord but to a third party. An opportunity was missed in the Court of Apeal in Smirk v Lyn- dale Developments 21 to comment on this matter. The plaintiff had ap- pealed against Pennycuick V. C.'s finding that he did not even have a leasehold interest in the blue plot; the Vice-Chancellor's reasoning being that the plaintiff's original service tenancy (with which the in- terest in the blue plot was co- terminous) had itself terminated on the service of a new rent book on him by the defendant in 1 967 and no new right could have accrued in the meantime. It is outside the scope of this article to consider whether even on the view the Vice- Chancellor took of the effect of the new rent book, that that conclu- sion followed; the Court of Appeal reversed Pennycuick V. C.'s deci- sion on this point and held that the original tenancy, and thus the in- terest in the blue plot, still sub- sisted. The judgment below was otherwise described variously as "very powerful and useful" and as having "untangled" the law in this area. 22 The writer will lastly discuss two further aspects of the doctrine of encroachment and then conclude with some general com- ments on this whole area.

equivalent of s. 1 7 of our Statute of Limitations Act, 1957. According- ly, so the defendant's argument went, time would have begun to run against the landlord from that date in respect of the waste and so his title to it must have been ex- tinguished. Willes J. rejected this line of argument, on the evidence the reality of the agreement between the landlord and the tenant was that the encroachment should be on the same terms as are usually applicable to encroachments by virtue of the law and those terms negatived the running of time against the landlord until the tenan- cy in the demised premises of which the waste was to be deemed to be a part of had itself determined. Before the expiry of determina- tion of the tenancy in the demised premises the tenant is entitled to occupy the property encroached upon notwithstanding the non- operation of the Statute of Limita- tions. The decision in Taber v Godfrey 15 illustrates this proposi- tion and although there the tenant had occupied the landlord's pro- perty for more than 12 years Charles J. expressly disavowed any reliance on the statute for his decision. Estoppel and Encroachments What then is the basis of the te- nant's protection? Denning L. J. (as he then was) advanced the following explanation in Perrott (J. F.) & Col. Ltd. v Cohen 16 :- "The principle underlying the cases on encroachment is not perhaps strictly an estoppel, but it is akin to it. If a tenant takes possession of adjoining property and by his conduct represents that he is holding it under the demise, then, if the landlord acts on that representation by allowing the tenant to remain in possession, the tenant cannot afterwards assert that he is holding it on any other footing. The tenant cannot, for instance, claim that he is holding it adversely to the landlord so as to acquire a title under the Limitation Act of 1939; nor can he claim that he is only a licensee, who has all the benefits of occupation but none of the burdens of the lease." His Lordship then elaborated on the explanation by invoking the principle he had stated in Central

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