Adverse possession — Application to register title to parcels of land — Whether deputy solicitor applying wrong test of adverse possession — Appeal allowed in part
The respondents were the paper owners of various parcels of land that adjoined the appellant’s property. The appellant applied to the Land Registry to be registered as the owner of the parcels on the basis of 12 years’ adverse possession by his predecessor in title, W. That application was refused in respect of five of the parcels, and the appellant appealed.
The deputy solicitor dismissed the appeals. He found in relation to: (i) parcel 1, a wooden shed that W had used it for storage and that he had kept the door locked; (ii) parcel 2, a stable, that W had used it for storage in the belief that he had the owner’s permission, although, since the death of the then owner in 1968, he had not in fact had permission; (iii) parcel 3, another shed, that W had used to dump scrap items; (iv) parcels 4 and 5, that W, and subsequently the appellant, had cut back bushes and other growth and had stored old cars on the land. In relation to all the parcels, he concluded that there was no clear evidence of an intention to exclude the paper owner.
The appellant appealed, contending that the deputy solicitor had applied an incorrect test. He submitted that the latter should not have asked whether the use of the land would have manifested to the paper owner a clear intention to dispossess him, but rather, he should have enquired whether W and the appellant had exercised exclusive physical control of the disputed parcels for the requisite period; the intention to possess could be inferred from such control.
Held: The appeal was allowed in part.
The deputy solicitor should have focused upon the squatter’s intention to be in possession of the property and to exclude the world at large, to be deduced in general from his acts. He had erred by focusing instead upon an intention specifically directed at the exclusion of the paper owner. The authorities did not support the application of a test based upon whether a paper owner would be put on notice someone was in possession with the intention of excluding it. Although it was hard to imagine a case where legal possession could be established without it being apparent to a properly informed owner visiting the site within the 12-year period, protection for landowners was achieved not by the application of a test that required consideration of what would be obvious to them on visiting the property, but by consideration of whether, objectively, the squatter was in factual possession and whether it had shown the necessary intention to possess: JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419 and Powell v McFarlane (1979) 38 P&CR 452 applied.
The appellant had established adverse possession of parcels 1 and 2 and his appeal would be allowed in relation to those parcels. The evidence of W’s use of the shed and the locked outer door demonstrated that it had been physically capable of possession and had been in W’s possession over a long period. In relation to parcel 2, W’s erroneous belief that he was using the stable with the owner’s permission did not mean that he lacked the requisite intention to possess the property. W’s possession of the stable demonstrated an intention to possess it to the exclusion of all others, including the owner, unless and until he had asked to give up possession. That possession had been adverse since the death of the then owner in 1968 because from then on he had not had the owner’s consent. The deputy solicitor’s findings in relation to parcels 3 to 5 were insufficient to show factual possession by W and the appellant, and, accordingly, his decision on those parcels would stand.
Tom Weekes (instructed by Bance Tickell, of Redhill) appeared for the appellant; David Brounger (instructed by Palmers) appeared for the respondents.
Sally Dobson, barrister