Posted by: RM | October 20, 2009

Trespass, Adverse Possession & Section 62 LPA 1925

I recently came across a case on my Lawtel updates which is unreported and, to date, I have been unable to obtain a copy of the full transcript (if anyone can assist, I’d be grateful!). The case concerned is Stadium Capital Holdings (No 2) Ltd v St Marylebone Property Company Plc (2009) which was heard before Sir Donald Rattee in the Chancery Division on 15 October 2009. From the little information available it appears to raise a couple of interesting issues. The limited background facts follow.

The claimant (“C”) claimed damages for trespass against the first defendant (“D1”) in relation to a hoarding which had been erected on a shared boundary wall between C and D1’s properties (D1 was a long leaseholder who subsequently appears to have acquired the reversionary interest in the freehold). The C’s land had originally been owned by the Railway Executive which had granted D1’s predecessors in title consent to erect such a hoarding. The second defendant third party (D2) had obtained planning permission to erect the hoarding (which permission had previously been refused by the planning authority) and D1 had granted D2 an exclusive licence for D2 to do so. D2 removed the hoarding when requested to do so by the C’s predecessor in title and played no part in the proceedings.

D1 defended the claim on the basis that (1) the Railway Executive’s original consent had lapsed and D1 had, by operation of the doctrine of adverse possession, acquired possession of what was otherwise C’s airspace; and (2) in the alternative, D1’s right to maintain a hoarding on the boundary wall had passed to D1 by operation of section 62 of the Law of Property Act 1925 upon conveyance of the reversionary interest in the freehold to D1.

Both defences were rejected by the court. In response to (1) it was held that the consent originally granted by the Railway Executive (a previous owner of C’s land) was not limited in its terms and subsisted until such time as it was expressly revoked by C’s immediate predecessor in title (who had assigned any right to damages arising from an action in trespass to C). Therefore, even if possession of airspace was theoretically possible, in this case such possession was by consent and, therefore, not adverse to the owner. The limited analysis which I have been able to find (Lawtel and Westlaw) says that there was obiter to the effect that it was doubtful whether title to an area of airspace not contiguous to land under it could exist at law; the right to airspace was contingent on the right to own the land under it. These responses by the court raise a couple of interesting questions (the absence of a full transcript of the judgment makes it impossible to determine whether these issues were fully explored by the court). Firstly, can the consent which was given by the Railway Executive really be said to have endured (at least) two subsequent changes in ownership, unless expressly renewed? And secondly, why would there be doubt that is it theoretically possible to be in possession of airspace?

In answer to the first point, clearly it would be necessary to know the full facts but it seems unlikely that a permission which is personal and revocable could survive a change of ownership without something more (say, the operation of section 62 which I will come to shortly). Regarding the second point, if real property is capable of ownership, it is surely capable of being adversely possessed, subject to the test for actual possession which is adverse to the paper owner and the requisite animus possidendi being met. Whilst they are rare in practice, flying freeholds demonstrate that it is not necessary, in order to own property, to own the actual soil over which the property concerned is situated.

In respect of (2) the court held that section 62 could not be established to have applied because the conveyance concerned (ie the conveyance of the reversionary interest in the freehold) had not been put in evidence and it was, therefore, impossible to determine whether there was anything in the conveyance to expressly exclude the operation of section 62 as required by section 62(4). It was also said that, in any event, even if the section did apply (which it had been held not to), the enjoyment of the right would not have afforded itself to D1 as lessee (which it was prior to acquiring the reversionary interest in the freehold) but would have been for the benefit of the freehold owner.

It is very difficult to make any further comment on this case given the woeful lack of information available. However, it does appear that it may well raise some extremely interesting points which might warrant further consideration if the transcript of the judgment ever becomes widely available. If anyone out there finds it before I do, please pass it on!


  1. Hi Rowena,

    I believe that this was an extempore judgment and therefore a full transcript may take some time to appear.

    I suggest you either go to the Mechanical Recording section at the RCJ and ask to listen to the recording from that day (It was Court 19) or get in contcat with counsel who could send you a copy when it is eventually approved by the judge.

  2. Thanks Christian. I’ll try the latter and if I unearth anything interesting will post further in due course…

  3. Der Rowena,
    I am a director of st marylebone property company plc.If you require a copy of the judgement please contact me at my office.
    Yours sincerely,
    Bernard Herman

    • Bernard, thanks for your message. I have tried to find a web address for your company but have not succeeded in doing so (I had hoped to email you). I would be very interested in receiving a copy of the judgment – if you are able to send it electronically I can receive it at rowena[dot]meager[at]gmail[dot]com. Alternatively, if an electronic copy is not available, if you can drop me an email I can let you have details of where I can receive a paper copy. Many thanks, Rowena

  4. Please arrange to collect a paper copy from my office.Confirm a collection time by email.
    With best wishes,
    Bernard Herman
    13 March 2010

  5. This afternoon the court of appeal unanimously found in our favour over the restitition issue in the case of st marylebone property company and stadium capital holdings.
    Bernard Herman

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