Possessory title — Paper title remaining with one owner — Land purportedly sold to plaintiff — Plaintiff acting as owner throughout limitation period — Whether plaintiff’s belief that he was true owner relevant — Requirements for acquiring title by adverse possession — Judge finding against plaintiff — Plaintiff’s appeal allowed
The plaintiff, H, appealed against a decision which: (a) dismissed his claim for a declaration that he had acquired possessory title to a small triangle of land at Cellar Hill, Tenham, Kent; and (b) declared the defendants, Mr and Mrs C, to be the true owners. H had bought a rectangular plot of land in 1980 from M. In 1981 some question arose about title to part of the land when H found, when he came to mow the grass on his plot, that the continuous line of fencing separating his plot from no 27 had been interrupted and had been diverted into his plot to form a triangular wedge shape. The fence was removed by H with a police officer in attendance. In 1986 Mr and Mrs C erected a new fence along the boundary, which incorporated into their property the triangle of land cut out from H’s plot. Before H had acquired his plot M had used the triangle for access to other land which he owned and had been driving through the site daily. However, conveyancing history had shown that although the land had been purportedly sold to M including the triangle, the paper title to the triangle had remained with Mrs K, who had sold it to Mr and Mrs C for £1 in 1985. At first instance the judge found, inter alia , that M and “more recently H … had the belief that they owned the whole of the land … there was no adverse possession because they did not believe that they were acting adversely to the true owner”. He therefore held that where “they believe themselves to be the owners anyway, it is impossible for there to be a possessory title created”.
Held H’s appeal was allowed.
1. A claim to possessory title was based on the provisions of the Limitation Act 1980, which provided by section 15 that “no action shall be brought by any person to recover any land after the expiration of 12 years from the date” of the accrual of the right of action. The Act also provided that the accrual date runs where an owner has been dispossessed (ie where someone has come in and driven the owner from possession) or discontinued his possession of the land (ie the owner has gone out of the land and then been followed into possession be another person).
2. The defendant’s argument failed over an intention to possess (animus possidendi) which was a requisite and an intention to dispossess which was not.
3. It was a question of fact in each case but generally the requirements for adverse possession were fulfilled where the evidence showed that a person, in whose favour the period of limitation ran, was in actual possession, intended to take possession of the land and his actions on the land were manifest. Enclosure was the most cogent evidence of adverse possession and of dispossession of the true owner.
4. In the present case, H brought himself fairly within the statute and established possessory title. M, by his actions, had made it clear to all that he had enclosed the triangle of land in the plot which was then sold to H. He not only went into possession, but he intended to and did exercise over the triangle all the rights which an owner had in the land.
Stephen Powles (instructed by Brachers, of Maidstone) appeared for H; Raoul Downey (instructed by George JJ Thompson, of Sandwich) appeared for Mr and Mrs C.
