An appeal against a finding of adverse possession based on insufficient evidence of intention to possess the land has failed in Calverley Village Day Nursery Ltd v Lynch and another [2022] EWHC 1855 (Ch).
The dispute concerned a small area of land to the rear of commercial property at 57 Rodley Lane in Leeds owned by the first defendant/respondent which adjoined a larger commercial property at 55 Rodley Lane vested in the claimant/appellant. The disputed land was part of No 55. The claimant acquired No 55 with knowledge that the defendants were alleging they had the right to keep containers and other materials on the disputed land.
The claimant brought proceedings alleging trespass by the second defendant on the disputed land. The proceedings were defended and the defendants counterclaimed that, among other things, the first defendant was entitled to be registered as proprietor of the land by reason of adverse possession. To succeed, 12 years of adverse possession before 13 October 2003, when the Land Registration Act 2002 came into force, was required, otherwise the claim would need to satisfy the new regime. The trespass claims failed but the court upheld the claim of adverse possession of a smaller area of the disputed land which the claimant’s predecessors in title held on trust for the owners of No 57 under s75 of the Land Registration Act 1925.
The land in question was an open area of land which was part of a larger area used as a car park. In 1991 it was rough ground and in 2003 it remained unimproved with a rougher surface finish compared with the rest of the car park. The judge accepted that it was not really practical for the area to be fenced off but was satisfied that the first defendant’s predecessors had effectively treated the equivalent of two car parking spaces as if they owned it, to the exclusion of others, including the paper owner, and had the necessary intention to possess it. They had parked on the land, placed a skip on parts of it, built a rack and filled it with materials, used it to store waste products and weeded and tidied the area consistently over the period from mid-1991 to mid-2003. Their mistaken belief that they had acquired the spaces with No 57 in July 1991 was evidence of an intention to own the disputed land.
The claimant appealed on the basis that the judge failed to adequately consider whether there was evidence of adverse possession of the disputed land prior to 13 October 1991 sufficient to establish the 12-year period. However, the High Court considered that the judge had the issue fully in mind and that there was sufficient evidence to support his findings. It was satisfied that the first defendant’s predecessors took and made effective and exclusive use of the disputed land during the period in question. When used by them there was no space for anyone else to use the land and so the use was not in the nature of an easement. Such use also manifested an intention to own the land.
Louise Clark is a property law consultant and mediator
