Adverse possession – Evidence – Common character of locality – Claim by appellant to acquire title by adverse possession allowed in relation to garage but rejected in relation to adjoining land – Whether reasonable inference of possession of adjoining land arising from grant by appellant of licence to park on that land together with common character of locality between garage and adjoining land – Appeal dismissed
On a reference to the first-tier tribunal (FTT), the appellant claimed title by adverse possession to land in Clitheroe comprising a garage and an adjoining area of hardstanding and vegetation to the west. The respondents held the paper title to that land. The judge found that the appellant had acquired title to the garage but not to the land to the west. She found that the use made of the western land could at best have given rise to an easement to park but did not have the character of exclusive occupation needed for adverse possession.
The appellant appealed, contending that the judge had erred in rejecting his claim to the western land. He contended that the judge had failed properly to consider whether the evidence established: (i) actual possession of the western land by reference to the appellant’s grant of a licence to park to the owner of a neighbouring house and the clearing and management of foliage; and (ii) a “common character of locality” between the garage and the western land, giving rise to the reasonable inference of possession of the western land.
Held: The appeal was dismissed.
(1) The grant of a licence to make some specified use of land was an indication that the licensor considered himself to be in control of land and was thus an indication that he had the necessary intention to possess. Parking in a confined space could amount to an act of possession if it manifested an intention to control the space. Moreover, acts of possession done on parts of the land could be evidence of possession of the whole. The question was whether there was such a common character of locality between the different parts as to raise a reasonable inference that the particular land in dispute belonged to the possessor in the same way as the other parts did: Powell v McFarlane (1977) 38 P&CR 452 considered.
As a matter of law and fact, there was no existing “common character of locality” between the garage and the western land. A clear distinction could be drawn between the two. The garage, by its very nature, was enclosed whereas the western land was open land. The boundaries of the garage, namely its walls, were clear whereas the boundaries of the western land were not obviously delineated. The appellant’s possession of the garage for storage purposes raised no reasonable inference that the appellant was also in possession of the hard standing, still less of the whole of the western land. Such an inference was precluded by the lack of any obvious delineation of the boundaries of the western land and by the fact that the western land was used not by the appellant for storage but by a neighbour for parking a motor vehicle in connection with the neighbour’s own house. That parking use was not in any way related to the appellant’s use of the garage. No reasonable inference could be drawn that the appellant’s possession of the garage for the purpose of storage raised, without more, a reasonable inference of possession of other land, namely the western land, which was used for a different purpose entirely.
The judge had also been entitled to find, on the evidence, that such use as had been made of the western land at best supported an easement of parking rather than a claim for adverse possession. She had been entitled to find that the hard standing on the western land, together with other land to the front of the garage, was used by a number of vehicles for parking and that the appellant’s activities in relation to the rest of the western land provided insufficient evidence of the exclusive possession needed to establish adverse possession.
Wayne Goldstein (instructed by Steele & Son, of Clitheroe) appeared for the appellant; Ian Foster (instructed by Maddocks Clarke, of Altrincham) appeared for the respondents.
Sally Dobson, barrister
