Claims to occupy both as a licensee and by adverse possession are incompatible, irrespective of whether the land is registered or unregistered.
The Court of Appeal has dismissed an appeal from a decision setting aside consent to amend a defence and counterclaim because of inconsistency in Healey v Fraine and others [2023] EWCA Civ 549; [2023] PLSCS 87.
The claim arose in the course of a claim for possession of a house. The defence and counterclaim pleaded that from 2001 the first defendant had managed the property for the owner’s brother, whom he believed to be the owner, that it was agreed in 2006/07 that he would be left to maintain and repair the property and, believing it to be abandoned, he took adverse possession of it as a home for himself and his family.
The pleading was defective because under the Land Registration Act 2002 adverse possession no longer operates as a defence to possession. When this was pointed out, the defendants sought permission to amend their pleading by completely rewriting it. However, paragraph 8 pleaded that the first defendant had been in possession as a licensee since 2009, while paragraph 13 maintained the plea that he had been in adverse possession since 2009. Permission to amend was granted by the district judge, but the claimant’s appeal – on the basis that the pleading was internally contradictory and legally incoherent – succeeded and the application to amend was dismissed.
The defendants appealed on two grounds: (1) the judge was wrong to refuse permission to amend because the pleading did not depend on adverse possession; and (2) occupation as a licensee was not incompatible with adverse possession of registered land.
The Court of Appeal dismissed both grounds. Paragraph 13 echoed the provisions of section 98(1) and (3) of the 2002 Act, and its natural reading was as intending to establish a substantive defence rather than signal a future intention to apply to the Land Registry if the defence succeeded. Even if paragraph 13 was purely for information, there was still a contradiction with paragraph 8. It was not for the judge to excise paragraph 13. It was the defendants’ responsibility to ensure that their pleading was adequate.
The draft Land Registration Bill produced by the Law Commission (Law Com No 271, Land Registration for the Twenty-First Century), while proposing a new system, had not changed the meaning of adverse possession. There was no basis to conclude that a person could be in adverse possession with the consent of the legal owner.
Louise Clark is a property law consultant and mediator
