Local authority — Land – Adverse possession – Respondent local authority seeking possession of disputed land – Appellant counterclaiming for adverse possession – Whether judge erring in law by dismissing counterclaim — Appeal allowed in part
The respondents had been the registered freehold owners of an area of undeveloped land (the disputed land) since January 1984. The land was divided into two parts (A and C) by a public right of way. The appellant had been the owner of a neighbouring property since 2008. Shortly after the appellant purchased the property, the respondents received complaints about his use of the disputed land, including the dumping of parts of vehicles. In September 2010, the respondents commenced proceedings against the appellant for possession of the disputed land. In response, the appellant asserted that he had been in adverse possession of the disputed land since 1981.
The county court found as facts that the appellant had kept animals on the land but that such user was intermittent and not continuous, as shown by aerial photographs. The appellant had also placed moveable animal shelters on the land and repaired and replaced fencing, but to keep animals in rather than the respondents out. The respondents’ intended use of the land was woodland or parkland and they had planted trees. Offers by the respondents to mow the land had been refused by the appellant but pathways across the land had been strimmed by the respondents and they had replaced fences and gates.
The judge concluded that the respondents had not been dispossessed and that the appellants had not held the necessary intention to possess the land for the requisite 12-year period. The appellant’s occupation was merely to derive some enjoyment from the land which was not wholly inconsistent with the respondents’ intended use of it. The appellant had impliedly assumed that by not turning him off the land the respondents had given him permission to be there. The judge ordered the appellant to deliver up possession of the disputed land and dismissed his counterclaim for adverse possession. The appellant appealed.
Held: The appeal was allowed in part.
In deciding whether there was adverse possession, the question was simply whether the squatter had dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner. There were two elements necessary for legal possession: a sufficient degree of physical custody and control (factual possession), and an intention to exercise such custody and control on one’s own behalf and for one’s own benefit. Such an intention might be, and frequently was, deduced from the physical acts themselves. Factual possession signified an appropriate degree of physical control: Powell v McFarlane (1979) 38 P&CR 452.
There had to be a single and exclusive possession, although it could be exercised by or on behalf of several persons jointly. The question what acts constituted a sufficient degree of exclusive physical control 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. Although everything depended on the particular circumstances, broadly the alleged possessor had to be shown as dealing with the land as an occupying owner might have been expected to deal with it and that no-one else had done so. The requisite intention to possess meant an intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he was not himself the possessor, so far as was reasonably practicable and so far as the law would allow: JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 considered.
In the present case, there was no proper basis for challenging on appeal the judge’s decision in so far as it related to area C. Not only was there material on which the judge was entitled to come to the conclusion that the appellant failed to establish possession of area C, but that was the only conclusion to which he could properly have come.
However, in relation to area A, the judge had addressed factual possession and found that from about 1983 the appellant had kept animals on the disputed land. The judge held that such use was intermittent and not continuous, and that there was no continuous adverse use of the disputed land until about 2002. That, however, was not the legal test. In making a distinction between intermittent and continuous use, the judge appeared to be contrasting what he considered to be the quality of use that was and was not capable of amounting to possession. Further the judge had never explained what he meant by “intermittent”. He made a finding of fact that there was a change in the manner of use but did not describe what was involved in that change.
The judge’s reference to the appellant’s use being not wholly inconsistent with the respondents’ intended use bore the hallmarks of the approach adopted by the court in in Leigh v Jack (1879) LR 5 Ex D 264 which had been dismissed as “heretical and wrong” in Pye. In the absence of a finding that the appellant knew the respondents’ plans for the disputed land, its intended use was irrelevant and the legal basis for the judge reaching a conclusion about the appellant’s implied assumption was unclear.
There was material on the basis of which the judge could properly have concluded that the appellant had failed to establish that he was in adverse possession. The judge was plainly attempting conscientiously to deal with the dispute fairly and properly after a lengthy trial with many witnesses and historical evidence. However, in view of the doubts and difficulties about the judgment, the matter would be remitted for a further hearing as regards area A. The court could not presently rule out the possibility that, when all the facts were examined and correct legal principles applied, other judges might properly have reached a different view.
Robert Harrap (instructed by Adams Solicitors) appeared for the appellant; Nicola Muir (instructed by Havering London Borough Council Legal Services) appeared for the respondents.
Eileen O’Grady, barrister