Summary and implications
In a recent case1 a developer, Stadium Capital won significant damages for trespass from a neighbouring tenant, St Marylebone.
The court decided that an advertising hoarding erected on the wall of a building let to St Marylebone trespassed into the airspace of adjacent land owned by Stadium Capital.
Although the hoarding had been removed before trial, Stadium Capital won damages equal to the profits made by St Marylebone from the trespass, including sums received under licences granted to advertisers using the hoarding.
Developers and landowners should note these points:
- The court has upheld the general principle that a freehold owner of land owns both the airspace above the ground and the subsoil.
- It is not possible to acquire title to land by adverse possession (or “squatters’ rights”) if the land is occupied with consent. It is not possible to acquire title to land by adverse possession if the land is occupied with consent
- The nature of property demised by a lease can change if an “accretion” to the demised premises occurs.
The advertising hoarding was erected with consent and after planning permission had been obtained
The facts of the case were fairly straightforward:
- The entire parcel of land involved was previously owned by the London Midland and Scottish Railway Company.
- In 1931 part of the land was let under a 99 year lease, which was bought by St Marylebone in 1975.
- In 2008 Stadium Capital bought the freehold of the remainder of the site from a successor to the Railway Company. The land was then cleared for development.
- The boundary between these two parcels of land was agreed as being the southern flank wall of the building let to St Marylebone.
- In 1956 a former owner of the land acquired by Stadium Capital had given consent to a former tenant under the St Marylebone lease to install an advertising hoarding on the southern flank wall.
- Repeated attempts were made to obtain planning permission to erect the advertising hoarding and consent was eventually obtained in October 1975 (after St Marylebone had acquired its interest in the lease).
- St Marylebone then granted a series of licences allowing an advertising company to erect a hoarding on the southern wall of the building. The last of these agreements was to end in September 2011.
- The position of the hoarding was moved several times during the intervening years and an access platform was added in about 1986.
The developer demanded possession of its land and removal of the hoarding
In 2004, the owner of the developer’s land demanded possession of the land by withdrawing the consent that had been granted, together with removal of the hoarding and the access platform.
This culminated in Stadium Capital eventually beginning litigation in 2008.
The tenant tried several tactics to defend the claim including an argument based on adverse possession
St Marylebone initially argued that the hoarding was actually within the property demised by the lease, but it abandoned this claim at trial.
St Marylebone then argued that it had acquired title to the land occupied by the hoarding by adverse possession.
To succeed, St Marylebone needed to show that it had been in factual possession of the land without consent for at least 12 years and that it had an intention to possess the land.
St Marylebone failed on this argument, as the court found that the consent given by the owner of the Stadium Capital land allowed a hoarding to be erected on the wall of the building.
Accordingly, any occupation of the land (to the extent that occupying the airspace amounted to actual possession) had been with consent, until this was withdrawn in 2004. This was fatal to any claim for adverse possession.
In any event, the judge considered that a claim to title to airspace, without a corresponding claim to the land beneath, was an extremely “strange concept”.
St Marylebone also sought to argue that the addition of the advertising hoarding was an “accretion” to the demised premises. This was not pursued in detail by St Marylebone, who tried to establish that, although the hoarding was not part of the original demise under the lease, it had become so by accretion, as an additional parcel to the demised land.
An interesting point is what would have happened if St Marylebone disposed of its interest in the lease. Would the accretion revert to the landlord of the lease or remain in the possession of St Marylebone?
We look at another case on adverse possession on page 10 of this bulletin. In the second case, the owner of a boat obtained title to part of the river bed of the Thames, after mooring his boat on the river.
Click here to view 'adverse possession-the basics'