Ashe v National Westminster Bank plc [2008] 1 WLR 710
MORTGAGES – ADVERSE POSSESSION – LIMITATION ACT 1980 – IMPLIED CONSENT TO POSSESSION
Facts
Mortgagors, who were husband and wife, owned a long leasehold interest in the house in which they lived. In 1989 they granted a charge by way of legal mortgage over the property in favour of the appellant bank (N). Formal demands by the bank for payment were made in 1992 and there were intermittent payments by the husband until January 1993, after which he was declared bankrupt. In 2006 the husband’s trustee in bankruptcy brought proceedings for a declaration that the bank’s charge had been extinguished under section 17 of the Limitation Act 1988, as the couple had been in adverse possession of the premises for the requisite unbroken period of 12 years.
Issues
Whether a right to possession of premises, which remained unenforced as against those in present possession, could be taken as an express or implied grant of consent to said possession, such that it could not fairly be described as ‘adverse’ and would therefore fall outside the ambit of the Limitation Act 1980.
Decision/Outcome
The requirement of adverse possession had to be applied in accordance with the articulation of that doctrine in JA Pye (Oxford) Ltd v Graham[2002] UKHL 30. Adverse possession referred to the capacity of a person in possession of land and not to the nature of that person’s possession. Possession had to be given its ordinary meaning and C were in ordinary and exclusive possession of the property for the relevant period. Moreover, the fact that N had a latent right to possession that they chose not to enforce could not be construed as an implied permission for C to remain on the property; JA Pie ([2002] UKHL 30) applied.
Updated 21 March 2026
This case summary remains broadly accurate. Ashe v National Westminster Bank plc [2008] EWCA Civ 55, [2008] 1 WLR 710 is still good law as a Court of Appeal authority on adverse possession in the mortgage context, and the principles drawn from JA Pye (Oxford) Ltd v Graham [2002] UKHL 30 remain authoritative on the meaning of adverse possession under the Limitation Act 1980.
However, readers should be aware of two important points. First, the article contains a minor but potentially confusing error: the relevant statutory provision is section 17 of the Limitation Act 1980 (not 1988 as stated in the Facts section). Second, and more significantly, the substantive law on adverse possession of registered land has been materially altered by the Land Registration Act 2002, which introduced a new regime (under Schedule 6) replacing the 12-year limitation period for registered land with a procedure requiring application to the Land Registry after 10 years of adverse possession, with notice to the registered proprietor. The Ashe case concerned a mortgage created in 1989 and was decided under the old Limitation Act 1980 regime, which still applied to the facts in issue. The 2002 Act regime now governs adverse possession of registered land going forward, meaning the practical significance of the limitation-based approach discussed in this case is greatly reduced for modern registered land disputes. Students should ensure they understand which regime applies depending on whether land is registered and when the relevant period of possession began.
