Those seeking to persuade a court that they have been in adverse possession of land must show that they have had exclusive possession of the land, with the relevant intention to possess it, and that their possession was adverse to the paper owner. Consequently, the litigation in King v Benefice of Newburn in the Diocese of Newcastle [2019] UKUT 176 (LC); [2019] PLSCS 110 raised a very surprising question indeed. Is it possible to obtain title by adverse possession without entering onto the land in question at all?
The land at the centre of the dispute was a family vault situated inside Holy Trinity Church in Dalton, near Newcastle Upon Tyne. The church was conveyed to the Church Building Commissioners by Edward Collingwood in 1837, but he expressly reserved ownership of the vault, which lay below the central aisle of the nave, to himself. Four members of the family were subsequently interred there between 1840 and 1940 (when the last interment took place).
The church was declared redundant and closed in 2004. But the existence of the vault, and uncertainty about who owned it, prevented the church authorities from disposing of the building for residential use. So they resorted to the law on adverse possession in an attempt to establish ownership of the vault, so that they could remove the human remains from it and bury them elsewhere, to enable the church to be used for residential purposes.
The church authorities argued that the very nature of the vault meant that no one was going to open and enter into physical occupation of it. However, their control of the church building, and of access to the vault (which required the floor of the church to be taken up), and their search for an alternative use for the church were an unambiguous assertion of control of the vault. They accepted that descendants of the Collingwood family had visited the church from time to time to pay their respects, but argued that they had facilitated access as a matter of common humanity, courtesy and concern.
The Upper Tribunal accepted the church might have been able to assert possessory title, had it refused to allow further human remains to be buried in the vault or removed the human remains interred there and buried them elsewhere. But that was not what had happened here – and the Tribunal rejected the suggestion that the church had been in exclusive physical possession and control of the burial vault, with the requisite intention to possess it, since 1940, or since the church was closed in 2004.
There was no evidence that the church had ever even entered the vault and the Tribunal did not consider that its conduct in relation to the burial vault would have indicated to the paper title owners, had they visited the church at appropriate times during any relevant 12-year limitation period, that the church was engaged in dispossessing them of paper title to the vault. The church had been locked up after it was closed, but this was done for safety and security – and not to exclude family descendants, who had still been allowed to access the vault. Furthermore, the ability to prevent access to the vault was irrelevant in circumstances where the church was never in factual possession of it at all.
Allyson Colby is a property law consultant
