Calverley Village Day Nursery Ltd v Lynch and another 

Land – Adverse possession – Parking – Appellant bringing proceedings alleging trespass to land by respondents – Respondents counterclaiming for rectification of transfer to include disputed land – Judge holding first respondent entitled to registration as proprietor by adverse possession – Appellant appealing – Whether sufficient evidence of possession of land and intention to possess to entitle judge to conclude that adverse possession established – Appeal dismissed The first respondent was the registered proprietor of a small area of land to the rear of a commercial property known as 57 Rodley Lane, Leeds, which was occupied by the second respondent under licence. The property immediately adjoined a larger commercial property at 55 Rodley Lane, vested in the appellant. The disputed land was part of 55 which the appellant bought in 2018 with knowledge that the respondents were alleging that they had the right to keep containers and other materials thereon. The appellant subsequently commenced county court proceedings alleging that the second respondent was trespassing on 55 by: (i) parking cars on the car park area at the front; (ii) parking vehicles and placing skips on a right of way granted to 57; and (iii) leaving a metal container on land immediately to the rear of 57. The respondents denied the trespasses and counterclaimed for rectification of the transfer to include the land to the rear of 57 and an extended right of way, allegedly omitted from the transfer by common mistake; alternatively, a declaration that the appellant was estopped from denying that the first respondent had title to that land and right of way; or a declaration that the first respondent was entitled to be registered as proprietor by adverse possession. The judge dismissed the appellant’s claims of trespass and the respondents’ counterclaims for rectification and relief by way of estoppel, but found the claim to adverse possession of a smaller area of land to the rear of 57 proved: Before 13 October 2003, the appellant’s predecessor held that disputed land in trust for the owners of 57 pursuant to section 75 of the Land Registration Act 1925; and the first respondent who was entitled to be registered as proprietor. The appellant appealed against the decision on adverse possession. Held: The appeal was dismissed. (1) The evidence was broadly to the effect that, from shortly after acquisition and since then, the owners of 57 kept a skip on the land to the rear of their property. For the respondents to succeed on adverse possession under the old regime in the Land Registration Act 1925 and Limitation Act 1980, there needed to be 12 years’ adverse possession before 13 October 2003, when the old regime gave way to the new regime in the Land Registration Act 2002. If 12 years’ adverse possession were established, the land was held on trust for the respondents pursuant to section 75 of the Land Registration Act 1925. If 12 years’ adverse possession had not been completed by 13 October 2003, any claim had to be brought under the new regime.  The question what acts constituted a sufficient degree of physical control for adverse possession depended on the circumstances, in particular the nature of the land and the manner in which land of that nature was commonly used or enjoyed. Everything depended on the particular circumstances but, broadly, what had to be shown as constituting factual possession was that the alleged possessor had been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else had done so: Tennant v Adamczyk [2005] EWCA Civ 1239; [2005] PLSCS 169 and Thorpe v Frank [2019] EWCA Civ 150; [2019] PLSCS 35 considered. (2) Making temporary use of land for parking and storage, even for a prolonged period, could be in the nature of an easement, in which case the person making use did not, by definition, have exclusive possession of the land. In other cases, however, the use could amount to possession adverse to the paper owner and others. Whether it was one thing or the other depended on the facts of the individual case. It was also necessary to bear in mind that it was not only a matter of the extent and nature of physical use of the land but the intention with which the possessor made that use. Sometimes the intention was obvious from the use, because it was exclusive and permanent; in other cases, the use was said to be “equivocal”, which placed a distinct burden on the possessor to prove that they intended to own the land rather than just make use of it: Powell v McFarlane (1977) 38 P&CR 452 considered. (3) It was not the descriptive label that was given to a kind of use but the character of the use in the particular case that had to be considered. In this case, the skip was placed on the disputed land and served a purpose for renovation works from 1991 to 1993 and continued to serve a purpose in connection with waste from the first respondent’s business thereafter until late 2017. It would have been removed by the skip company from time to time, when full, and replaced by an empty skip. While a large builder’s skip was not a permanent addition to the disputed land, it was, on the facts, a semi-permanent feature that took up all of a single parking space. The other space was used in the relevant period the person in charge of the renovation works: Central Midlands Estates Ltd v Leicester Dyers Ltd (21 January 2003) [2003] PLSCS 8 and Nata Lee Ltd v Abid [2015] EGLR 21 considered. (4) The evidence established that, during the relevant period, the owners of 57 used the disputed land in exactly the way that an owner would make use of it, taking into account the combination of the size, location and nature of the disputed land and the extent and character of the use made of it by the respondents. They took and made effective and exclusive use of the disputed land during the period in question. When used by them, there was no space for anyone else to make use of it. Furthermore, the respondents mistakenly believed that they were getting the equivalent of two parking spaces immediately behind 57 when they bought it. That belief, even though mistaken, would naturally have led them to make use of the area of land as their own. The mistaken belief was itself evidence of an intention to own the disputed land.  Zoë Barton QC (instructed by Land Law LLP, of Altrincham) appeared for the appellant; Andrew Skelly (instructed by Hägen Wolf Solicitors, of Leeds appeared for the respondents. Eileen O’Grady, barrister Click here to read a transcript of Calverley Village Day Nursery Ltd v Lynch and another