There is never too much of a wait before another adverse possession case comes along. The attempt in 2002 to simplify this law and reduce the prospect of losing land to adverse possession does not seem to have removed the desire and ability of landowners to litigate over the principles, but instead has left us with a complicated two-system regime in which case law flourishes.
In the past six months alone there have been two Court of Appeal decisions of note: Thorpe v Frank and another [2019] EWCA Civ 150; [2019] PLSCS 35, on the concept of taking of factual possession; and Rashid v Nasrullah [2018] EWCA Civ 2685; [2019] EGLR 8, on whether a fraudster who had transferred the property by forgery and been registered as proprietor could then use adverse possession against the paper title owner (he could).
As such, judicial decisions on the topic are plentiful, providing rich pickings for claimants and defendants as they make out their positions, and leaving it difficult to assess the merits of claims with certainty. This article takes us back to basics when reviewing a potential claim for adverse possession.
Basis of an adverse possession claim
Adverse possession is the process by which a person who is not the legal owner of the land can become the legal owner by possession of the land for a specified period of time without the true owner’s permission. This could mean the occupier never had a right to possession, or that they did have a right but that right came to an end.
There are two essential requirements that apply to claims for adverse possession in both the old and new regimes: factual possession and intention to possess (see JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2002] 28 EG 129).
Factual possession
There must be a sufficient degree of exclusive physical control over the land – this will depend on the nature of the land and the manner in which that type of land is commonly used. The test that is usually referred to is that the person in possession must have been dealing with the land as an occupying owner might have been expected to deal with it, and nobody else must have done so (Powell v McFarlane (1977) 38 P&CR 452).
This is fertile ground for case law, and McCombe LJ sweeps through the relevant historical decisions in his judgment in Thorpe. In that case, Mrs Thorpe was claiming a paved area in front of her open-plan bungalow on the outskirts of York. She relied on decades of treating the area as part of her own property, in particular adjusting the surface level and re-paving it. She did not erect a fence to enclose the area until 2013, and so the question was whether the resurfacing work alone was sufficient factual possession. In deciding that it was sufficient (and so allowing the appeal), McCombe LJ placed emphasis on the nature of the land and what else could be done to assert ownership.
Cases on this area cover a vast range of land usages, and although each case will be judged on its own facts, there are some principles that can be drawn. For example, parking of cars alone on land will be insufficient, whereas if parking is combined with signage, or closing off the area, then it might constitute possession. Some agricultural use of land is enough, such as sowing crops and ploughing, whereas intermittent grazing for sheep is not.
There are also a number of water-related cases: fishing cases (fishing is not enough, but letting out fishing to others, using meshes to catch salmon and signage is); and then several mooring cases brought against the Port of London Authority – which currently indicate that adverse possession of foreshore or tidal river bed is possible in principle (see Port of London Authority v Mendoza [2017] UKUT 146 (TCC); [2017] PLSCS 98).
Intention to possess
There must also be a manifested intention to exercise control over the land in the squatter’s own name, on his own behalf and to the exclusion of all others (including the owner with the paper title) as far as possible.
There are theoretically two limbs: the actual subjective intention to possess and the manifestation of that intention by unequivocal actions. This does not mean that the squatter has to intend to own or acquire the land, but if he does (erroneously) think that he owns it or has a right to be there, that is not fatal to the claim. A squatter may even offer to buy or rent the land without ceasing to have the requisite intention, but if the offer is in writing then it will be deemed an acknowledgment of title, which will affect the running of the limitation period.
Many of the cases on factual possession overlap with intention. This is because the evidence of intention needs to be something shown on the land that tells the world the squatter is treating the land as his own.
Principles to be extracted from the cases generally say that the land needs to be clearly demarcated from other land that the squatter does not possess; enclosing the land with fences/walls/locked gates is good evidence of intention, as well as other works on land that show permanent rather than temporary benefits. So the erecting of a brick or stone building, or the planting of trees is good evidence of intention. Maintaining boundary features is insufficient because that is something a non-owner could do to protect his own land.
The two regimes
The Land Registration Act 2002 (the LRA) came into force on 13 October 2003, introducing a new regime for dealing with adverse possession. Unfortunately, because of incomplete registration of the country’s land, this leaves us with a two-regime system: old rules and new rules.
Old rules
The previous regime (based on the Limitation Act 1980) continues to apply in relation to unregistered land and registered land where the possession relied on is for a period of at least 12 years ending before 13 October 2003.
With 12 years of uninterrupted adverse possession, a squatter defeats the paper title owner’s claim to the land, which simply becomes statute barred. The only way to defend such an action is on the basis that one of the requisite elements of time or possession is missing.
New rules
The system under the LRA is completely different. After 10 years of adverse possession, the squatter is entitled to apply to be registered as the proprietor in place of the registered proprietor. On such an application, the registered proprietor and certain other people with an interest in the land are notified and given the opportunity to object. If there is no objection, then the squatter is registered.
If the paper title owner fails to object in time, all may not be lost. If the squatter’s application was fundamentally flawed (eg, no factual possession or insufficient time), then the registration of the squatter will be deemed a mistake, and rectified as appropriate (Baxter v Mannion [2011] EWCA Civ 120; [2011] 2 EGLR 29).
If the paper title owner does object, then the claim to adverse possession will fail unless the squatter can prove one of three conditions (Schedule 6, paragraph 5):
- estoppel;
- the squatter has some other right to the land; or
- reasonable mistake as to boundaries.
The first two conditions are quite broad and will require the exercise of broad judicial discretion. The third condition is easier to conceptualise and in practice is fairly common. It arises in recognition that the Land Registry’s general boundaries rule for title plans means that landowners cannot readily and conclusively establish their land boundaries. It requires four elements:
- the land claimed must be adjacent to the landowner’s own land;
- the boundary must not be one determined by the Land Registry;
- for at least 10 years the squatter reasonably believed that the land belonged to him; and
- the land has been registered for more than one year.
This question of “reasonable belief” is, of course, likely to be the Achilles heel in the case, allowing the paper title owner one last stab at preventing a successful claim. The point arose in IAM Group plc v Chowdrey [2012] EWCA 505.
Adverse possession in practice
Adverse possession remains a serious issue for owners of large and unwieldy estates, just as it does for developers in city centres keen to use the whole plot right up to the assumed boundaries, and for feisty neighbours arguing over every inch of a suburban garden.
It arises most often as an alternative position in boundary disputes, essentially arguing that even if the legal boundary is established along a historical line, the adverse possession of recent decades plus “reasonable mistake as to boundaries” means the legal line becomes irrelevant. As a principle, it exposes a serious crack in the land registration system, meaning that visual site inspections must be an essential part of pre-purchase due diligence.
Clearly, it is best practice for landowners to ensure that all their land is registered and critical to keep one’s contact details at the Land Registry up to date (to be notified of any claim). Nevertheless, the combined effect of the general boundaries rule and the adverse possession system means that certainty can be elusive.
Helena Davies is a partner in the real estate litigation team at Brabners
