The Gazette 1987

GAZETTE

JANUARY/FEBRUARY 1 9 87

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

Godfrey

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.

Cohen

"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

London Property Trust Ltd.

High

Trees House Ltd

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

Godfrey. "

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

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

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.

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

Lyndale Developments,

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

Lyn-

dale Developments

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.

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.