Adverse possession — Evidence — Date at which adverse possession required to be shown — Test of factual possession and intention to possess — Whether acts relied upon by respondents fulfilling that test — Appeal allowed
The appellants owned unit 2 on a business park and the respondents owned the adjoining unit 1. A yard between the two units fell partly within the respondents’ title and partly within that of the appellants. The latter brought proceedings concerning their part of the yard, claiming trespass by the respondents and seeking a declaration as to ownership. The respondents counterclaimed, arguing that the appellants’ title to the disputed land was time-barred and that their title was extinguished by virtue of sections 15 and 17 of, and Schedule 1 to, the Limitation Act 1980 read in conjunction with the Land Registration Act 2002.
It was accepted that the crucial issue was whether adverse possession had commenced prior to October 1991, thereby satisfying the required period of 12 years’ adverse possession before the commencement of the 2002 Act in October 2003. The respondents contended that they had: (i) used the disputed land since June 1991 for parking, turning vehicles, and unloading and storing stock; (ii) later planted Russian vines; and (iii) erected a fence in 1992. The judge found that much of the activity relied upon as adverse possession had occurred on the respondents’ own part of the yard. However, he accepted their submissions that their use of the land from June to October 1991 amounted to adverse possession and that the later erection of the fence was an affirmation of that position. He accordingly dismissed the appellants’ claim.
Appealing that decision, the appellants contended that the judge had erred in taking account of matters occurring after October 1991 and had wrongly applied the test of adverse possession.
Held: The appeal was allowed.
The judge had been required to ask whether the appellants had been dispossessed, and whether the respondents had been in adverse possession, by October 1991. The judge had erred in relying upon events occurring after October 1991, such as the erection of the fence, as affirmation of the position at an earlier date. At the relevant time, the respondents’ acts had amounted to mere user of the land; they had not exercised custody or control so as to fulfil the test of factual possession, nor had they shown the necessary intention to possess. They had merely intended to use their own land, and to make additional use of the appellants’ land only so far as it was necessary for the purposes of parking or unloading: JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2002] 28 EG 129 (CS) applied. The planting of the vines was not an act of adverse possession in the circumstances of the case.
Matthew Hall (instructed by Forshaws LLP, of Warrington) appeared for the appellants; Robert Askey (instructed by Hall & Co, of Warrington) appeared for the respondents.
Sally Dobson, barrister