The Gazette 1987

GAZETTE

JANUARY/FEBRUARY 1 9 87

Smirk v Lyndale Developments

Ltd.

Although the doctrine is of some

antiquity, it is useful to outline the

doctrine's application in greater

detail by reference to a relatively

recent decision of Pennycuick V.C.

Smirk

Lyndale Developments

Ltd.

particularly as that case

treats of a number of previous

decisions in this area.

Smirk

the plaintiff tenant

occupied two plots of land which

lay immediately beyond a path

running behind a house held by him

under a service tenancy from

British Railways which also owned

those two plots. The plots were

used by the plaintiff as a flower and

vegetable garden — and the trial

judge was to hold — one of those

plots (the blue plot) had been

occupied by the plaintiff for more

than twelve years. Some time after

having bought the freehold in the

property comprised in the plain-

tiff's service tenancy together with

the two plots of land behind it from

British Railways, the defendants

commenced a building development

on the two plots. The plaintiff

immediately sought a declaration

that he had a good possessory title

to the freehold in those two proper-

ties or, alternatively, that he held

them as an extension of the locus

of his tenancy in the house to

which they were adjacent.

In relation to the plot which Pen-

nycuick V.C. held the plaintiff to

have been in effective occupation

for 12 years, (the blue plot) the

following

dicta

of Parke B. in

Kingsmill

Millard

were drawn

upon by his Lordship as correctly

reflecting the position in law of the

plaintiff

vis á vis

the defendant as

regards that property:-

" I t is laid down in all cases —

whether the enclosed land is

part of the waste, or belongs to

the landlord or a third party —

that the presumption is, that the

tenant has enclosed it for the

benefit of his landlord, unless he

has done some act disclaiming

the landlord's title. I am disposed

to discard the definition, that the

encroachment is made " f or the

benefit of the landlord", and to

adopt that of Lord Campbell,

viz,

that the encroachment must be

considered as annexed to the

holding, unless it clearly appears

that the tenant made it for his

own benefit."

Therefore, the plaintiff's claim

that he was entitled to the freehold

in the blue plot failed by virtue of

the presumption.

Pennycuick V.C.'s analysis of

the authorities did not stop there,

however, — he noted the dif-

ference in judicial opinion on the

question of the doctrine's applica-

tion to land which wasn't waste.

The first instance decision in

Tabor

Godfrey

and the data of Parke

(supra)

suggested the doctrine

to apply irrespective of whether the

land encroached upon constituted

was te or not whereas the

judgements of Lord Russell C.J.

and Willes J. in

Lord Hastings

Sadd/er

emphatically demurred

to such a proposition. It was the

former view which Pennycuick

V.C. indicated his preference for,

but since the lands involved in the

case before him themselves appear

to have been waste land, it might

be said that his Lordship's remarks

on this topic were obiter.

The dearth of Irish authority on

the whole area of encroachments

by tenants provides no definite

answer to the question either. In

the old case of

Irwin

Boyse

view contrary to that expressed by

Pennycuick V.C. is attributed to

Ball J. but the few expressions of

opinion thereafter by Irish Bench on

this doctrine

leave to inference

whether the broader view is to be

regarded as correct or not.

Perhaps, the most satisfactory

fashion in which this issue could be

resolved by a Court now if it were

required to deal with this problem

would be for it to look at the rat-

ionale behind the presumption and

consider whether that rationale

holds good when applied to the

situation of encroachments by

tenants on non-waste land. Unfor-

tunately, examination of what is

the leading exposition of the doc-

trine's fundamental premise — the

judgement of Willes J. in

Whitmore

Humphries

— highlights the

con f us i on wh i ch

surrounds

precisely what legal principles the

courts are invoking where an en-

croachment by a tenant on lands

belonging to his landlord fails to be

considered.

Rationale of the Doctrine

Willes J. set forth his understan-

ding of the doctrine's rationale as

follows:-

"The rule is based upon the

obligation of the tenant to pro-

tect his landlord's rights, and to

deliver up the subject of his

tenancy in the same condition,

fair wear and tear excepted, as

that in which he enjoyed it. The

result is to avoid questions

which would otherwise fre-

quently arise as to the property

in land, and to exclude persons

who have come in as tenants,

and who are likely to encroach,

from raising such questions."

There is often great temptation and

opportunity afforded to the tenant

to take in adjoining land, which

may or may not be his landlord's

and it is considered more conve-

nient and more in accordance with

the rights of property that the te-

nant who has availed himself of the

opportunity afforded him by his

tenancy to make encroachments

should be presumed to have in-

tended to make them for the

benefit of the reversioner, except

under circumstances pointing to an

intention to take the land for his

own benefit exclusively.

These

dicta

when considered in

the light of their application to the

dispute before the Court in that

case demonstrate how sight has

been lost in some later judgements

of the fact that

Whitmore

and other

decisions have nothing to do with

the operation of the Statute of

Limitations but are in fact cases

negativing the assertion made in

them that the Statute over ran

against the landlord in respect of

the encroachments over the

landlord's land.

Whitmore,

for example, the te-

nant had enclosed, with the assent

of the landlord, a piece of the

landlord's waste land adjoining the

tenant's premises. Possession of

the waste by the defendant (who

was treated as successor-in-title to

the tenant) was proved for 21

years and on the expiration of the

lease of the demised premises the

plaintiff lessor sought possession

of both properties.

It was contended on behalf of

the defendant that the landlord's

oral assent to the enclosure of the

was te by the

de f endan t 's

predecessor-in-title gave rise to a

tenancy-at-will which must be

deemed to have determined one

year from its commencement by

virtue of the then s t a t u t ory