Adverse possession: acting as an owner sufficient to establish claim

The court has reviewed the requirements to establish a claim by adverse possession prior to the implementation of the Land Registration Act 2002 in Milton Keynes Council v Nathan Wilsher and others [2022] EWHC 578 (QB). The dispute concerned three fields forming part of Two Mile Ash Farm to the southwest of Milton Keynes, owned by the claimant and which it intended to sell for redevelopment to provide housing and employment opportunities. The fields adjoined a travellers’ site, where the first defendant, a small livestock farmer, lived with his wife and family, grazing horses on the land. The claimant sought an injunction to restrain the first defendant and others from trespassing on the fields. The first defendant claimed title by 12 years’ adverse possession obtained by his father before 13 October 2003 when the 2002 Act came into force or the benefit of a proprietary estoppel. For the first defendant to establish a claim by adverse possession of the fields he had to show that he was in factual possession by demonstrating i) the exercise of an appropriate degree of physical control; ii) that the possession was exclusive; and iii) that he had dealt with them as an occupying owner might. He also had to show an intention to possess the fields to the exclusion of all others, including the claimant as paper owner J A Pye (Oxford) Ltd v Graham [2002] UKHL 30. The first defendant’s father began using all three fields by keeping horses and ponies on them, in connection with a business of breeding and raising horses, in the mid-1980s. The court was satisfied that the necessary degree of control over the fields was established prior to 13 October 2003. A concrete bridge had been constructed over a ditch at some point before the end of 1990 which facilitated access to the main road from all three fields. Such construction indicated an intention and expectation of continuing, unconstrained use of the fields and the likelihood that such use had been continuing for some time. Maintenance work – the removal of ragwort, cutting grass and plugging gaps in hedges and fences – had been undertaken on the fields since the late 1990s, to facilitate the grazing of horses. The first defendant had demonstrated that he had acted as an owner might, continuing the approach his father had taken to the fields, by installing a gate with a chain and lock in 2001/2 with a sign saying “Private Property Keep Out”; use of the fields for his father’s wake in 2004, an event attended by 2,000 people; and the subsequent grant of permission to others to use the fields. The claim to adverse possession succeeded but the proprietary estoppel claim failed. The claimant had not represented to the first defendant or his father that it regarded them as having a right to the fields and the first defendant had neither established that expenditure was incurred in reliance upon a belief that they owned the fields nor that the claimant was aware of the position. The claimant had very little knowledge of what was happening on the land. Louise Clark is a property law consultant and mediator