In the February 2008 edition of Property update, we considered the Court of Appeal's decision in Ofulue v Bossert. B claimed title to a property by virtue of 12 years' adverse possession, even though B had appeared to believe that she had a tenancy of the property from O. In fact no tenancy had been granted. The Court of Appeal found that the fact that B believed herself to be a tenant did not mean that she did not have the intention needed for an adverse possession claim to succeed, since what is required is not an intention to own the property but an intention to possess it.

O appealed to the House of Lords. The appeal turned on whether B had acknowledged O's title to the property during the course of previous proceedings for possession.

The appeal was dismissed. The House of Lords agreed with the lower court that an offer made by B during the course of the previous proceedings to purchase the property from O was an acknowledgment of O's title. Under section 29 of the Limitation Act 1980, such an acknowledgment would ordinarily have the effect of starting the clock running again, so that any 12 year period could only run from the date of the acknowledgment and not before. However, the majority of the House of Lords also agreed that the fact that the offer was contained in a letter marked 'without prejudice' meant that it was inadmissible.

In one respect however, the House of Lords departed from the view taken by the lower court. The Court of Appeal had found that an admission of O's title made by B in its defence against the previous proceedings, when B was claiming a tenancy, was not an acknowledgment of title for the purposes of section 29. This was on the basis that the relevant question in the dispute was who had the better claim to possession, and the acknowledgment was only an acknowledgment of O's title to the freehold, not an admission of O's right to immediate possession.

The House of Lords disagreed. The admission of O's title was an acknowledgment of title for the purposes of section 29, with the result that it turned the clock back to zero. Since however B had continued in possession for a further 12 years, O's title had been extinguished.