I am acting on behalf of the respondant, Toms. I am stuck on how to address the argument on the differences between Batsford and Beresford and how there isnt an implied license here. Any help would be greatly appreciated!
Alasdair Henderson owned a farmhouse and 100 acres ofsurrounding land in the village of Etherington. Anthony Toms owned a mechanic'sgarage and 10 acres of land, bordering a portion of the eastern boundary to Alasdair'sland. In 1993, Anthony saw Alasdair in the village pub. Anthony told Alasdairthat he had recently purchased a quad-bike and asked if he would mind if herode it over an area of Alasdair's land (the disputed area) that was idealrugged terrain for quad-biking. Alasdair said "yes, feel free".Anthony subsequently purchased another quad-bike for his son, James, and theywould ride together over the disputed area. Subsequently, Anthony and Jamespurchased more quad bikes, and allowed them to be rented and ridden over bothAnthony's land and the disputed land.
One afternoon inJanuary 1997, Alasdair visited the same pub, and was surprised to see a flyerattached to a notice board for Etherington Quad Bikes, with the address of Anthony’sgarage. On returning home, Alasdair sent an email to the address at the bottomof the flyer, [email protected] com, asking Alasdair to stopdriving quad bikes over his land.
Anthony did not reply, and continued to ride and rent outthe quad bikes as he had before.
In 2005, Alasdairreceived an email saying "Alasdair. Can I buy the quad-bike land? Anthony."To which he did not reply.
In August 2009Alasdair decided to sell the entirety of his property so that he could emigrateto the Netherlands. He commenced possession proceedings over the disputed landagainst Anthony in the county court. Anthony defended the claim on the basisthat he had acquired the disputed land by adverse possession.
Laurence J found thefollowing facts:
1. Title to Alasdair's farmhouse and surroundingland was unregistered.
2. The disputed area of land was 5 acres and therewas no visible boundary between this and Anthony's own land.
3. Alasdair had been overheard in the pub in 2001saying “he can do what he likes with his sodding quad-bikes”.
4. Anthony was the owner of [email protected] comand admitted sending the email to Alasdair.
Laurence J found for Alasdair,as by asking Anthony to stop driving the quad bikes over the land and laterpublicly changing his stance, Anthony had been granted an implied licence,following the test in Batsford Estates (1983) Co Ltd v Taylor  EWCA Civ489. On the facts, a reasonable person would have appreciated that Anthony’suse of the land was only by implied permission from Alasdair, the owner of theland, and not by adverse possession.
Anthony's appeal wassuccessful. The Court of Appeal found that:
1. The decision in Batsford Estates wasinconsistent with the earlier decision in R (on the application of Beresford) vSunderland City Council  UKHL 60. The test for whether there was alicence was whether there was a communication, by writing, by spoken words orby overt unequivocal conduct which is intended to be understood, and isunderstood, as permission to do something which would otherwise be an act oftrespass. There was no such overt act communicated to Anthony and thereforeAnthony’s use of the land was not by implied licence and as such satisfied therequirements for a finding of adverse possession.
2. Although Anthony had acknowledged Alasdair'sownership of the disputed land by email in 2005, this did not satisfy therequirements of Sections 29(2) and 30(1) of the Limitation Act 1980 as it wasnot signed, and as such the period of adverse possession was not interrupted.
Alasdair appeals on the following grounds:
1. The Court of Appeal had erred in finding thatthe decision in Batsford Estates was inconsistent with the decision inBeresford. Beresford was a decision in a different area of law precedingBatsford Estates, and as such the authority of the test as used in BatsfordEstates as a case in the present subject matter, must be binding to establishan implied licence as opposed to adverse possession.
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HELP with moot problem on property law watch
- Thread Starter
- 22-11-2013 14:39
- 24-11-2013 05:21
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