There was no dispute between the parties in Heaney v Kirkby [2015] UKUT 178 (TCC); [2015] PLSCS 121 as to the law that applies in the case of claims to adverse possession. Instead, the argument focussed on whether the trial judge had applied the law correctly. Had a trespasser enjoyed possession of a grass verge – and shown the requisite intention to possess it – for 12 years for the purposes of the Limitation Act 1980?
The law requires those claiming title to land through adverse possession to show that they have had exclusive possession of it, without the landowner’s consent, and an intention to possess it for their own benefit. Such an intention may be deduced from the actions of the trespasser, who must have exercised a sufficient degree of excusive physical control over the land and dealt with it as an occupying owner might have been expected to do, where no one else has done so: Powell v McFarlane (1977) 38 P & CR 452. The court will assess this by reference to the trespasser’s actions and the absence of any acts of possession by the paper owner.
Fencing or enclosing the land in question is a classic way of establishing exclusive possession. However, Heaney reminds us that the absence of fencing is not necessarily fatal to a claim. The case concerned a grass verge, which was 32 metres long, situated in front of a new house. Initially, the verge was used by the builders who constructed the house, for access, as a base for scaffolding and to unload and store building materials. No one else used the verge while the builders were doing so, nor could they have done so.
In these circumstances, the trial judge found that the owner of the new house had exercised a sufficient degree of exclusive control of the verge from the commencement of the building work, and that no-one else had done so. This use amounted to dealing with the land in a way to be expected of any occupying owner. The owner of the new house had shown an intention to possess the verge and had clearly indicated her intention to dispossess the paper owner and to exclude the world at large. Consequently, it had not been necessary for her to fence the verge as well.
The Upper Tribunal agreed. The builders were plainly there on the instructions of the owner of the new house, and as her agents. Fencing is one way, but need not be the only way, in which physical control is exercised. The court must make an objective assessment of all the circumstances and there had been sufficient evidence for the trial judge to have reached the conclusions that he did.
The owner of the new house had manifested an intention to posses the verge from the very outset and had enjoyed actual possession of it for 12 years. She had demonstrated her intentions after the building works had been completed by levelling the verge and laying 12 tons of topsoil on it. She had then sown grass seed and had created a hard standing for cars. She had installed a coping stone with the name of her house carved on it, had planted a flower border and had cut, fed and maintained the grass, bushes and flowers on the verge until the paper owner’s title was extinguished in accordance with the Limitation Act 1980.
Allyson Colby is a property law consultant
