Adverse possession claim — Respondent temporarily fencing itself out of part of land for purposes of litigation with another party — Judge holding this not amounting to interruption of possession — Appeal allowed
The respondent first leased, and later owned, a yard on a trading estate. It brought proceedings for a declaration that it had acquired by adverse possession ownership of a strip of land that ran alongside the boundary of the yard. The appellant, as the registered owner of the strip, counterclaimed for possession. It contended that, inter alia, the respondent could not show the requisite 12 years’ continuous possession in respect of a part of the strip because it had, for a period of three months, excluded itself from an area of land encompassing that part by erecting a temporary tape fence in response to a trespass claim against it by another party.
The judge held that the respondent had established the necessary 12 years’ adverse possession prior to the appellant’s possession claim. With regard to the fenced part, he considered that possession had not been discontinued, since the tape fence had been a temporary structure erected for a temporary litigation purpose that had not been directed at the owner of the strip. The appellant appealed.
Held: The appeal was allowed in part.
The respondent had established the necessary period of adverse possession in respect of the strip, with the exception of the part that had been fenced off. Although not conclusive, the act of fencing was significant. For the period during which the tape fence had existed, the respondent had plainly intended to exclude itself from that part of the strip. It would be inconsistent with that intention for it now to claim that it had actually been, or had meant to be, in possession. Occupation and possession were different things. However, in the case of open land, it would require exceptional facts for a party that was a stranger to land to establish possession for a period during which it had excluded itself by fencing. A squatter that vacated property and left it empty could not claim to be in possession; in that respect, the position was very different from that of a paper owner. The fact that the respondent’s exclusion was intended to be temporary did not assist it, and nor did the fact that the exclusion had been for litigation purposes only and had not been directed at the owner of the strip. The respondent could not be in possession for the purposes of one party and not for the purposes of another. Moreover, whatever the reason for the exclusion, the question was simply whether the respondent had actually ceased possession. On the evidence, it clearly had. Buckinghamshire County Council v Moran [1990] Ch 623 applied; Marshall v Taylor [1895] 1 Ch 641 and Hounslow London Borough Council v Minchinton (1997) 74 P&CR 221 considered
Paul Morgan QC (instructed by Jamil Ahmed & Co) appeared for the appellant; George Laurence QC (instructed by BP Collins, of Gerrards Cross) appeared for the respondent.
Sally Dobson, barrister