There are two primary grounds of appeal. The first ground is founded on principles of adverse possession. It can be successfully argued that adverse possession by definition and application does not arise in this case since it was always the title owners intention that A live on the property. The second ground of appeal is founded on principles of constructive trusts in which case it can be argued that permitting A to acquire legal title to the trust property is and was contrary to the parties’ intentions.
Mr. Nicholas Strauss QC erred in finding that A acquired title by virtue of the doctrine of adverse possession. The doctrine of adverse possession requires more than a mere 12 years of undisturbed possession. As Lord Browne-Wilkinson explained in J.A. Pye (Oxford) Ltd. and Others v Graham and Another :
“The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.” (J.A. Pye (Oxford) Ltd. and Others v Graham and Another  1 AC 419)
In appears from the ruling in Martin v Myers that Mr. Nicholas Strauss QC took a purely one-sided view of possession. (Martin v Myers  EWHC 194) For the purposes of the doctrine of adverse possession, possession is required to contain two elements. Those elements are factual possession and an intention to possess. Slade J in Powell v McFarlane (1977) described factual possession as the exclusive occupation of the land to the extent that a true owner is otherwise entitled to occupy it. Slade J went on to explain that:
“The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which the land of that nature is commonly used or enjoyed.” (Powell v McFarlane (1977) 38 P&CR 452 at 470)
Obviously, A’s possession of the home purchased by E was not intended to dispossess E, an essential element of adverse possession. As it happened, E purchased the property intending for it to be occupied by both he and A and their seven children. Therefore upon his passing, his intentions would have continued and had he not disposed of the property by will it would have and should have devolved by the laws of intestacy. (Administration of Estates Act 1925, Part II) Certainly he must have intended for A to remain in the “matrimonial home” until such time as she passed on. Therefore there could not have been any acquisition of title upon his death by virtue of the doctrine of adverse possession. A’s possession of the “matrimonial home” was merely consistent with E’s intention upon the purchase of the home.
In disposing of property under Part II of the Administration of Estates Act 1925 the “matrimonial home” would have been divided among the next of kin. (Administration of Estates Act, 1925) In this case, since A and E were not wed, the children are the next-of-kin. The home was purchased specifically for the purpose of providing a home for A, E and their children and it is certainly within E’s intention that A should remain in the “matrimonial home” until such time as she passed on. The children, who are the appellants in this case, acting in a manner consistent with E, the paper owner’s intention did not insist that A deliver vacant possession upon E’s death. It would appear to be contrary to principles of equity to interpret their well-meaning conduct against them in a purely technical sense.
Aware that there was a constructive trust which provided for A to remain in possession of the “matrimonial home” the appellants were merely honouring their father’s wishes. A, on the other hand, by passing the home on to her son P was acting against E’s intentions and against the spirit and intent of the constructive trust. When one considers the implications of a constructive trust, it becomes clear that Mr. Nicholas Strauss QC erred on both equitable and common law principles.
A constructive trust is imposed upon the paper owner of realty in circumstances where it is commonly understood that the property is held for the benefit of the owner and others. (Gissing v Gissing.  AC 886) In the Martin case there is no question that E held the paper for the benefit of himself, A and their seven children, four of whom are the appellants. As Lord Justice Dillon said in Springette v Defoe  2 FLR 388:
“…the common intention of the parties must, in my judgment, mean a shared intention communicated between them. It cannot mean an intention which each happened to have in his or her, own mind but had never communicated to the other.” (Springette v Defoe  2 FLR 388 at p. 393)
It is assumed based on the facts of the Martin case that both A and E intended that the “matrimonial home” be held upon trust for themselves and their children. As a result, the children’s interest in the home would not arise until such time as both A and E had died. Therefore it would be contrary to the intention of the trust as created by E to allow for the children’s interest in the home to arise during A’s lifetime. Therefore the Limitations Act, 1980 could not start to run during A’s lifetime, as she was entitled to remain in the matrimonial home during her lifetime. Likewise, the appellants’ interest in the matrimonial home did not arise until such time as both A and E had died.
The common intentions of the parties is essentially what gives rise to a constructive trust. (Walker v Hall FLR 126) A, by leaving the property to her son P was acting in a manner inconsistent with the trust. In any event, all that P could do was hold the property as trustee for the remaining children and himself as beneficiaries of the trust. Since it is clear that the property is subject to a constructive trust the Trusts of Land and Appointment of Trustees Act 1996 will apply. (Trusts of Land and Appointment of Trustees Act 1996)
By virtue of Section 3 of the Trusts of Land and Appointment of Trustees Act 1996 the appellants have an interest in the property as well as the proceeds of sale. (Trusts of Land and Appointment of Trustees Act 1996, Section 3) Another issue that can be argued on appeal is that the home, which was trust property was sold contrary to Section 11 of the Trusts of Land and Appointment of Trustees Act 1996. By virtue of Section 11, a trustee may not sell the real estate which is trust property without first obtaining the consent of the beneficiaries under the trust.(Trust of Land and Appointment of Trustees Act 1996, Section 11)
The courts when called upon to make an order for sale or otherwise of the property are required to look at the purpose for which the trust was set up in the first place. .(Trust of Land and Appointment of Trustees Act 1996, Section 13) It therefore follows that had the appellants attempted to dispossess A following E’s death they would have been barred by virtue of Section 13 of the Trust of Land and Appointment of Trustees Act 1996 since the property was purchased as a “matrimonial home” for A, E and their seven children.
A’s interest in the matrimonial home is equitable in nature for two reasons. E purchased the house for both he and A and their seven children. Her interests together with the children’s interest will be determined by the equitable principles applicable to constructive trusts. A’s second interest in the property arises out of the fact that she was an occupier of the property under the terms of the constructive trust. Therefore A could not have dispossessed the appellant’s equitable interests in the matrimonial home by the operation of the Limitations Act 1980. (Smith, 2006)
A’s occupation of the matrimonial home until her death or until she chose to leave was subject to a constructive trust. As a beneficiary under the constructive trust she was not dispossessing other beneficiaries under the trust by occupying the matrimonial home. Therefore the statutory period for the acquisition of title by virtue of the doctrine of adverse possession could not have begun to run and neither could it arise to bar the equitable interests of the other beneficiaries under the trust.
Moreover, even if one were to look beyond the operation of the constructive trust principles, E had always intended for A and the children to remain in the matrimonial home. Therefore upon his death, the appellants, by failing to claim an interest in the property were merely honouring their father’s wishes. Wishes he clearly communicated when he purchased the home. The mere fact that A were permitted to remain in the matrimonial home by the consent of the proper heirs to E’s property since E was not married to E and would not inherit under the laws of intestacy is a bar to any claim under the doctrine of adverse possession.
As a result of the application of the legal principles there are two possible approaches to the appeal. First it can be claimed that the matrimonial home was subject to a constructive trust which gave A the right to remain in the matrimonial home until her death, subject to the beneficial interests of the children. Secondly it can be argued in the alternative, that E always intended for A to remain in the matrimonial home until her death therefore she could not have acquired title by virtue of adverse possession by occupying the house as long as she did.
Administration of Estates Act 1925
Gissing v Gissing.  AC 886
J.A. Pye (Oxford) Ltd. and Others v Graham and Another  1 AC 419
Martin v Myers  EWHC 194
Powell v McFarlane (1977) 38 P&CR 452
Smith, Roger.(2006) Property Law: Cases and Material. London: Longman
Springette v Defoe  2 FLR 388
Trusts of Land and Appointment of Trustees Act 1996
Walker v Hall FLR 126
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