Editorial Committee of the Cambridge Law Journal

Squatters. Recovery of PossessionAuthor(s): D. MacIntyreSource: The Cambridge Law Journal, Vol. 32, No. 2 (Nov., 1973), pp. 220-223Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505680 .

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The . Cambridge Law lournaZ The . Cambridge Law lournaZ [1973] [1973]

220 220

appropriate, as this section seems to confer a general discretion to protect anything ;by notice; but the necessary " rule " contemplated by section 49 (1) does not appear to exist, unless the view is taken (as Potter suggests-see Key and Elphinstone's Precedents in Convey- ancing, 15th ed., Vol. 3, p. 292) that rule 190 has extended section 48 to ri*ghts of this nature, by providing a procedure for application for entry of a notice. If the land certificate is not available, the right should presumably be protected by caution under section 54; but a caution aSnst delfings sxms a rather inappropriatc way of pro- tecting the nght, since the holder of the right is not trying to prevent all dealings with the registered estate, but to ensure that all dealings on]y talie effect subject to this right of entry. With the projected extension of registraiion of title, it is no good hoping that such problems will wind themseIves up into a ball and roll away, if they are ignored. PAUL B. FAIREST.

SQUATrERS RECOVERY OF POSSESSION

IT is difficult not to sympathise with homeless persons who, on dis- covering an empty house, forcibly enter that house and proceed to set up -their homes there. Yet if the owner of the house seeks to evict them, the law must be enforced without fear or favour. In McPhail v. Persons Utzknown and Brzstol Corporation v. Ross [19733 3 W.L.R. 71 (two cases heard together by the Court of Appeal) the law relating to the recovtry of possession against squat- ters was extensively reviewed.

In the first case persons whose identity was at first unknown broke into a locked house in Islington and changed the lock with the intention of making their homes there. In the second case two women and five children entered a house in Bristol and put up a notice in the window stating their intention to stay there and threatening to prosecute anyone who tned to evict them with force. Both plaintiffs took proceedings for possessIon under the new R.S.C., Ord. 113, which enables a claim for possession to be made by originating sum- mons against any person or persons, other than a tenant or tenants holding over after the termination of a tenancy, who enter or remain in occupation of land without the consent of the owner, whether or not it is possible to identify the occupiers. Both judges at first instance made orders for immediate possession in favour of the plain- tiffs. In the Court of Appeal the squatters admitted that they had no defence in law. The sole questson was whether the courts have jurisdiction to suspend the operation of an order for possession in these circumstances.

appropriate, as this section seems to confer a general discretion to protect anything ;by notice; but the necessary " rule " contemplated by section 49 (1) does not appear to exist, unless the view is taken (as Potter suggests-see Key and Elphinstone's Precedents in Convey- ancing, 15th ed., Vol. 3, p. 292) that rule 190 has extended section 48 to ri*ghts of this nature, by providing a procedure for application for entry of a notice. If the land certificate is not available, the right should presumably be protected by caution under section 54; but a caution aSnst delfings sxms a rather inappropriatc way of pro- tecting the nght, since the holder of the right is not trying to prevent all dealings with the registered estate, but to ensure that all dealings on]y talie effect subject to this right of entry. With the projected extension of registraiion of title, it is no good hoping that such problems will wind themseIves up into a ball and roll away, if they are ignored. PAUL B. FAIREST.

SQUATrERS RECOVERY OF POSSESSION

IT is difficult not to sympathise with homeless persons who, on dis- covering an empty house, forcibly enter that house and proceed to set up -their homes there. Yet if the owner of the house seeks to evict them, the law must be enforced without fear or favour. In McPhail v. Persons Utzknown and Brzstol Corporation v. Ross [19733 3 W.L.R. 71 (two cases heard together by the Court of Appeal) the law relating to the recovtry of possession against squat- ters was extensively reviewed.

In the first case persons whose identity was at first unknown broke into a locked house in Islington and changed the lock with the intention of making their homes there. In the second case two women and five children entered a house in Bristol and put up a notice in the window stating their intention to stay there and threatening to prosecute anyone who tned to evict them with force. Both plaintiffs took proceedings for possessIon under the new R.S.C., Ord. 113, which enables a claim for possession to be made by originating sum- mons against any person or persons, other than a tenant or tenants holding over after the termination of a tenancy, who enter or remain in occupation of land without the consent of the owner, whether or not it is possible to identify the occupiers. Both judges at first instance made orders for immediate possession in favour of the plain- tiffs. In the Court of Appeal the squatters admitted that they had no defence in law. The sole questson was whether the courts have jurisdiction to suspend the operation of an order for possession in these circumstances.

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C.LJ. Case and Conzment 221

Counsel for the squatters, whilst conceding that the courts of common law never suspended an order for possession, contended nevertheless that courts of equity might do so, since they had power to issue injunctions, even in the case of an action of ejectment, restraining a landowner from proceeding with his action at law or with the enforcement of his order: and that the same result is reached, now that " common injunctions" have been abolished, by the power of the court to make orders staying proceedings or the execution of an order. The Court of Appeal, however, citing Graftorm v. Griffin (1830) 1 Russ. M. 336,, unanmously reiected this contention on the ground ffiat equity would never interfere in aid of a wrongdoer. These squatters who, quite apart from being trespassers, had entered the premises crinally in breach of the Forcible Entry Act 1381, had no equitable right or interest to be protected. The court held, therefore, that it had no power to suspend an order for ?possession against a squatter: and it seems impossible to criticise this decislon.

Lord Denning M.R, however (with whose judgment Orr L.J. agreed), also deal;t with (1) the remedy of self-help against squatterst and (2) the position of tenants who hold over after the end of their tenancies.

On the subject of self-help he observed that an owner is not obliged to go to the courts to obtain possession against squatters. He is entitled to take the remedy into his own hands, even though he re-enters forcibly. Ne squatters} he said ([1973] 3 W.L.R. at p. 74):

were trespassers when they entered and they continued to be trespassers so long as they remained there. The owner never acquiesced in their presence there. So the trespassers never gained possession. The owner, being entitled to possession, was entitled forcibly to tutn them out: see Browne v. Dawson (1840) 12 Ad. & El. 624.

He concluded, therefore, that " even though the owner himseIf shouId use forces then, so long as he uses no more force than is reasonably necessary, he is not himself liable either criminally or civiIIy." He is not liable criminally because the statutes of forcible entry "only apply to the expulsion of one who is in possession" (ibid.).

It is, of course, established that an owner is not civilly liabIe to a trespasser whom he ejects, even if he re-enters the premises forcibly, provided that he uses no more force than is reasonably necessary (HemmisTgs v. Stoke Poges Golf Club [19201 1 K.B. 720). It is suS mitted, however, with the greatest respect, that the dicta of Lord Denning M.R. to the effect that an owner who forcisoly re-enters premises against sqllatters is not liable criminally, should-be treated with caution. It has been generally accepted hitherto that an owner, who so enters, is guilty of a criminal offence (see Megarry and Wade,

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222 The Cambridge Law Journa [1973]

The Lasv of Real Property, 3rd ed., note 4, p. 997: Winfield and Jolowicz on Tort, gt ed., p. 319). In Brawne v. Dowson, however, where a trespasser broke mto prernigs and was forcibly ejected there- froms after he had held them for eleven days, Lord Denman CJ. held that the trespasser had not gained possession, since a trespasser cannot immediately and without acquiescence give himself possession aganst the person whom he ejects, " if [that person] can without delay reinstate ;himself in his former position" (12 Ad. & El. atUp. 629). It seems, therefore, that provided that an owner does not delay in taking action against squatters and neither pla}ntiff in the cases under discussion had been guilty of any delay the squatter may not have obtained such possa;sion against him as would found a prosecution under the Forcible Entry Acts. But this is only so, it is submitted, if the owner

takes steps to reinstate him-self without delay. If he does delay, there must come an indefinable point of time at which his acquiescence in

the ipresence of the squatter will be inferred. It is fur.ther submitted, with respect, that Lord Denning's statement

that these squatters " never gained possession " must be confined to the context of the Forcible Ently Acts, in which it was made. The

Limitation Act 1939 provides that a right of action for the recovery of land accrues when (1) e owner has been dispossessed, and (2) adverse possesslon has been taken by some other person (ss. 5 (1), 10 (1): see also Megarry and Wade, op. cit. at p. 1005): and in order to amount to adverse possession against an owner for this purpose " acts must be done which are inconsistent with his enjoyment of the

soil for the purposes for which he intended to use it" (Leigh v. Jack (1879) 5 Ex.D. 264, 273). Re meEng of i'possession," it is sub- mitted, can vary according to the context in which the word is used: and on the facts of the present cases it seems !inconceivable that the squatters did not have " adverse possession " for the ipurposes of the

Limitation Act, as soon as their intention to exclude the plaintiffs had been established.

On the position of tenants who hold over, Lord Denning M.R. Observed that the position of a tenant differs from that of a squatter, who enters without any colour of title at all, in that his possession was lawful in its inception, and he still has possession, albeit unlawful possession, even after his tenancy is determined (see [1973] 3 W.L.R. at p. 76). In his opinion, "when a tenancy comes to an end, the landlord is not entitled to take possession without an order of the court: and, on making the order, the court has power to fix a date

for possession" (at p. 77). He based this opinion on the Rent Act 1965, s. 32 (1), which provides that a landlord cannot, othervise than by proceedings in court, recover possession of any premises let as a dweIling under a tenancy which is not a " protected tenancy " within

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C.L.J. C.L.J. Case and Comment Case and Comment 223 223

the meaning of that Act (see s. 34), if the occllpier continues to reside

there; and on provisions of the County Courts Acts, which give the

court a discretionary power to suspend the operation of an order for

possession against a tenant: and he added that the fact that the courts

have statutory power to suspend such order against a tenant, and

algainst a mortgagee (see Administration of Justice Act 1970, s. 36 (2) ),

" goes to show that, apart from statute, t;he court would have no such

power." Finally further reference should perhaps be made to the new

R.S.C., Ord. 113, under which proceedings were taken in these cases.

This Order was addeel to the Rules of the Supreme Court in l970 in

order to overcome certain procedural difficulties which had arisen in

connection with actions for possession against squatters. In Matz

ckester Corporation v. Conrzolly [1970] Gh. 420 the Court of Appeal,

whilst granting an interlocutory injunction against some squatters,

held that the courts had no jurisdiction to make an order for posses-

sion on an interIocutory application: and in Re Wykeham Terrace,

Brighton [1971] Ch. 204 Stamp J. held on an ex parte application

that such an order could not be made against persons who were not

named as parties to the proceedings. The new Order removes both

these difficulties. D. MACINTYRE.

MATRIMONIAL HOMES ACr 1 967-WORTH RE TROUBLE ?

Wrofk v. Tyter [1973] 2 W.L.R. 405 is an excellent example of a

case with simple facts involving complex legal problems. Briefly,

the plaintiffs contracted to buy ffie defendant's bungalow (the title to

which was registered) for £6,000. The defendant's title was satig

factory except that just one day after contracts had been exchanged

his wife registered a notice protecting her rights under the Matrimonial

tIomes Act 1967 (hereafter " the 1967 Act "). The apparent reason

for this was that she and her daughter did not wish to move there

was no question of the defendant's attempting to deprive his wife of

a home. The defendant was unable to persuade his wife to cancel

the notice and so refused to complete. The plaintiffs sought specific performance and damages. By the

completion date, the bungalow's value had risen to £7,500 and had

rocketed to £11,500 at the tme of judgment. Five main issues were

involved: entitlement to specific performance with vacant possession;

entitlement to specific performance subject to the wife's statutory

rights; whether specific ,performance was barred .by delay; whether

the rule in Bain v. Fothergill limited damages and whether the measure

of full damages should be £1,500 or £5,500.

the meaning of that Act (see s. 34), if the occllpier continues to reside

there; and on provisions of the County Courts Acts, which give the

court a discretionary power to suspend the operation of an order for

possession against a tenant: and he added that the fact that the courts

have statutory power to suspend such order against a tenant, and

algainst a mortgagee (see Administration of Justice Act 1970, s. 36 (2) ),

" goes to show that, apart from statute, t;he court would have no such

power." Finally further reference should perhaps be made to the new

R.S.C., Ord. 113, under which proceedings were taken in these cases.

This Order was addeel to the Rules of the Supreme Court in l970 in

order to overcome certain procedural difficulties which had arisen in

connection with actions for possession against squatters. In Matz

ckester Corporation v. Conrzolly [1970] Gh. 420 the Court of Appeal,

whilst granting an interlocutory injunction against some squatters,

held that the courts had no jurisdiction to make an order for posses-

sion on an interIocutory application: and in Re Wykeham Terrace,

Brighton [1971] Ch. 204 Stamp J. held on an ex parte application

that such an order could not be made against persons who were not

named as parties to the proceedings. The new Order removes both

these difficulties. D. MACINTYRE.

MATRIMONIAL HOMES ACr 1 967-WORTH RE TROUBLE ?

Wrofk v. Tyter [1973] 2 W.L.R. 405 is an excellent example of a

case with simple facts involving complex legal problems. Briefly,

the plaintiffs contracted to buy ffie defendant's bungalow (the title to

which was registered) for £6,000. The defendant's title was satig

factory except that just one day after contracts had been exchanged

his wife registered a notice protecting her rights under the Matrimonial

tIomes Act 1967 (hereafter " the 1967 Act "). The apparent reason

for this was that she and her daughter did not wish to move there

was no question of the defendant's attempting to deprive his wife of

a home. The defendant was unable to persuade his wife to cancel

the notice and so refused to complete. The plaintiffs sought specific performance and damages. By the

completion date, the bungalow's value had risen to £7,500 and had

rocketed to £11,500 at the tme of judgment. Five main issues were

involved: entitlement to specific performance with vacant possession;

entitlement to specific performance subject to the wife's statutory

rights; whether specific ,performance was barred .by delay; whether

the rule in Bain v. Fothergill limited damages and whether the measure

of full damages should be £1,500 or £5,500.

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