The court will readily assume that landowners intend to possess their land. So paper owners can usually point to the slightest of acts to confirm their possession of land. A trespasser’s task is more difficult. The court will require evidence of unequivocal acts of possession by trespassers and, if their actions are equivocal, or open to interpretation, the court will reject claims that the paper owner has been dispossessed of his or her land.
Most recently, the decision in Amirtharaja v White [2021] EWHC 330 (Ch) indicates that, although enclosure is usually strong evidence of an intention to possess land, the court may treat the presence of a locked gate at the end of a passage as equivocal. The case concerned a passageway that ran between two commercial buildings, which was registered in 2005 as belonging to the owner of the buildings. The buildings changed hands in 2017 and the new owner applied for planning permission to replace them with a single unit – at which point the proprietors of the house at the end of the passageway claimed that they, and their predecessor in title, who had acquired the house in 1977, had acquired title to the passageway through adverse possession.
There was evidence to suggest that the passageway had once been used as the principal means of access to their property from the road, although the right of way had fallen into disuse, and the entrance from the passageway onto the roadway was barred by a gate, which used to be left open, but was now securely locked.
The owners of the house claimed that the registration of title to the passageway was mistaken and sought rectification of the register to add the passageway to their own title – but the Land Registry rejected their application. However, the county court decided that there was sufficient evidence to show that they had been in actual possession of the passageway and had had the requisite intention to possess it for sufficient time to qualify for registration under the transitional provisions in the Land Registration Act 2002 that apply to adverse possession claims.
On appeal, the High Court considered a number of authorities, paying particular attention to Littledale v Liverpool College [1900] 1 Ch 19. In that case, the court refused to accept that the installation of a locked gate by a person with the benefit of a right of way over the land to which the gate controlled access was an unequivocal act of possession. Had the action been taken by a complete stranger, things would have been different. But the gate was there to protect the right of way and to prevent trespassers from obtaining access to the property that benefited from it. So the presence of the gate was referable to the right of way, and was not an act of possession.
The House of Lords disapproved some of the comments in Littledale in JA Pye (Oxford) Ltd v Graham [2002] UKHL 30. But the judge in Amirtharaja decided that Littledale remains good law as to the equivocality of a locked gate. And the evidence in this case was consistent with an intention to prevent youths from obtaining access to the passageway, in order to protect the house and its garden, as opposed to an intention to exclude the paper owner. So there was no reason to undo the registration of the title to the passageway.
Allyson Colby is a property law consultant
