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 19 March 2026
This case summary remains broadly accurate. Ashe v National Westminster Bank plc [2008] EWCA Civ 55, reported at [2008] 1 WLR 710, is correctly summarised, and the legal principles drawn from it — particularly the application of JA Pye (Oxford) Ltd v Graham [2002] UKHL 30 on adverse possession and the rejection of implied consent as negating adversity — remain good law in relation to unregistered land and registered land governed by the pre-Land Registration Act 2002 regime.
However, readers should note two material points. First, the article contains a minor but potentially confusing error: the proceedings are described as brought under the Limitation Act 1988, which does not exist. The correct statute is the Limitation Act 1980 (correctly cited elsewhere in the summary). Second, and more significantly for context, the Land Registration Act 2002 fundamentally changed the adverse possession regime for registered land. Under the 2002 Act, a squatter on registered land can no longer rely on the 12-year limitation period under the Limitation Act 1980; instead, a different scheme under Schedule 6 applies, requiring an application to the Land Registry after 10 years’ adverse possession, with the registered proprietor having an opportunity to object. Ashe itself concerned a long leasehold under the pre-2002 regime. Students should therefore treat this case as authority principally relevant to unregistered land or to transitional registered land disputes, and should consult the Land Registration Act 2002 separately when considering adverse possession of currently registered titles.
