Enclosure not essential for adverse possession

Key points • The area claimed should be considered as a whole • The practicalities of possession should also be considered • Enclosure of land is not an essential element for adverse possession In Kirkman v Bradshaw Pub Co Ltd [2025] UKUT 110 (LC); [2025] EGCS 59, the Upper Tribunal (Lands Chamber) has stressed the importance of taking a holistic approach and considering the functional relationship between different areas of land and their use when determining an application for adverse possession. Background The case concerned an application by Paul Kirkman for first registration of land to the south side of Wells Heads, near Bradford, in April 2021. The land comprised a pair of dilapidated stone domestic outhouses, named the Privy and the Washhouse, a narrow yard between the two buildings and an area behind the Privy called Ashes Places. The buildings were accessed by doors opposite each other across an outside area of eight feet six inches, slightly wider than a standard car parking space. The outside area opened onto the road but otherwise it and Ashes Places were enclosed by the walls of the two buildings and a two-metre-high stone boundary wall. Historically the buildings and Ashes Places were facilities used by the residents of some of the cottages in the row immediately opposite. Kirkman purchased the Privy and a couple of the cottages, including rights to use the Washhouse and Ashes Places, in September 1988. Bradshaw purchased one of the cottages in 2019 as a holiday rental. It objected to Kirkman’s application for first registration to the outside area claiming it had rights to use it. The issues Kirkman needed to demonstrate factual possession of the disputed land and an intention to possess it for any 12-year period expiring prior to the application. This required him to demonstrate that he had been dealing with the land as an occupying owner might be expected to deal, that no-one else had done so, and that his intention was to exclude the world at large including the owner with paper title, so far as reasonably practicable and permitted by law. It is impossible to generalise as to what acts will or will not suffice to evidence factual possession law (Powell v McFarlane [1977] 38 P&CR 452 approved in J A Pye (Oxford) Ltd v Graham [2003] UKHL 30; [2002] PLSCS 163). Evidence of factual possession will normally be sufficient to demonstrate the necessary intention although, as observed in Powell, it is impossible to generalise as to what acts will or will not suffice to evidence factual possession. The FTT decision The judge accepted Kirkman’s evidence that he was given the padlock to the Washhouse door in 1988, and that he was not aware that anyone else had a key, that he had paid the electricity bill for it since 1988, that he had used it to store equipment and materials between 1988 and 2019, and that he had parked a trailer on the outside area since 2007. The judge considered the real issue in the case to be not whether Kirkman had made use of the outside area, but whether the use amounted to adverse possession. She was satisfied that 12 years adverse possession of the Washhouse had been established but not that Kirkman could establish the necessary physical control of the outside area because it was not enclosed along its edge with the road. The appeal The tribunal considered that the judge’s assessment was flawed. Her conclusion involved two errors. First, she divided the site into separate components which she considered independently of each other. So, she failed to consider the land which Kirkman claimed to be in possession of, as a whole, or the functional relationship between the areas she identified and how the degree of control demonstrated over each of them reflected on the control over the remainder. Second, she did not consider how the land would or could be used by an occupying owner. Occupation and control On the first issue, the Washhouse and the Privy were almost within touching distance and both were entered directly from the open area. So, anyone using the Washhouse for storage would necessarily use the open area for access. Padlocking the door of the Washhouse signified the exercise of control over the building itself and of the areas immediately outside it and within its restricted curtilage for the storage of the trailer and building materials. It was obvious not only that someone had secured the Washhouse but that someone was also using the rest of the land. The natural inference would be that it was the same person. Use of the area claimed On the second issue, the tribunal considered there was force in the submission that the judge had insufficiently regarded the practicalities of possession of the open area and Ashes Places. She had overstated the importance of enclosure of the area in order to able to demonstrate the necessary degree of physical control. Where, as here, the area was small and enclosed around almost the whole of its boundary, an assessment of what was practical was required. The opening on to the road was obviously intended as access. So, a fence or wall across the 2.58 metre opening would have been pointless. If left open, it risked blocking either the footway/road or the doorways to the buildings and interfering with the use of the open area for parking. Allowing the appeal, the tribunal decided that Kirkman had used the group of buildings openly and as an occupying owner would and his intention to possess the whole could readily be inferred. Louise Clark is a property law consultant