Land – Adverse possession – Evidence – Appellant challenging decision of First-tier Tribunal that respondent establishing 12 years’ possession of grass verge – Whether facts indicating necessary factual possession – Whether respondent possessing verge for purposes of section 9(5) of the Land Registration Act 2002 – Appeal dismissed
A dispute arose concerning a grass verge adjacent to and fronting the respondent’s house known as The Coach House, Thorp Arch, Wetherby. The verge was approximately 32 metres long and was zig-zag shaped. It was located between the respondent’s house and a narrow lane which provided access to the appellant’s property. The verge included two car-parking spaces. The appellant was the paper title owner of the verge having acquired it in February 2012. However, the respondent claimed ownership of it by way of adverse possession.
The First-tier Tribunal decided that the respondent had established 12 years’ adverse possession of the verge and that she was in possession of that land on 10 April 2012 when she applied to the Land Registry for first registration.
The appellant appealed, contending that the tribunal had erred in concluding that: (i) the respondent had established the necessary actual possession and intention to possess the verge at any time prior to April 2000 and failed to take any proper account of the disavowal by the respondent of any intention to possess the verge in other proceedings; and (ii) the respondent was in possession of the verge for the purposes of section 9(5) of the Land Registration Act 2002.
Held: The appeal was dismissed.
(1) The paper title owner might be regarded as the person owning the relevant land according to the registered title or conveyancing history, while the adverse possessor or squatter referred to the person claiming adverse possession of the same land as against the paper title owner. Under section 15(1) of the Limitation Act 1980, the relevant limitation period for the recovery of land by action was 12 years from the date on which the right of action accrued. So far as applicable to the present case, after the expiration of the 12-year period, the title of the paper owner was extinguished.
(2) Schedule 1 to the 1980 Act contained provisions for determining the date of accrual of the right of action. Paragraph 8(1) of Schedule 1 required the adverse possessor to be in possession of the relevant land. By paragraph 8(4), it was not to be assumed that the adverse possessor was in possession by permission of the paper title owner merely because his occupation was not inconsistent with the latter’s present or future enjoyment of the land, but that did not prejudice a finding on the actual facts of the case that such occupation was by implied permission. The relevant question was whether the person in adverse possession had dispossessed the paper owner by going into ordinary possession of the land for the requisite period without consent. Legal possession comprised two elements, factual possession manifested by a sufficient degree of physical custody and control, and an intention to possess by exercising such custody and control on one’s own behalf and for one’s own benefit though such intention may be deduced from the physical acts. The adverse possessor or squatter had to demonstrate by his conduct to the world, including the paper owner, that he had an actual intention to possess the land in question. Factual possession involved a sufficient degree of exclusive possession exercised by a sufficient degree of exclusive physical control which depended on the overall circumstances of the case. What had to be looked at objectively was factual possession which was to be assessed by reference to the squatter’s acts relied on to constitute possession, and the absence of any acts of possession by the paper owner. Fencing or enclosing the land in question was clearly a classic way of establishing exclusive possession but it did not follow that the absence of such fencing was fatal to a claim to adverse possession: Prudential Assurance Co Ltd v Waterloo Real Estate Inc [1999] 2 EGLR 85 and JA Pye (Oxford Ltd) v Graham [2003] AC 419 applied. Powell v McFarlane (1977) 38 P & CR 452, Simpson v Fergus (2000) 79 P&CR 398 and Wretham v Ross [2005] EWHC 1259 (Ch); [2005] PLSCS 129 considered.
(3) In the present case, the essential issue was whether the tribunal’s decision was to be upheld in the light of the primary facts as found. What mattered was an objective assessment of the circumstances and all the circumstances taken as a whole. It was not just a question of taking isolated items. There was plainly evidence, all of which entitled the First-tier Tribunal judge to reach the findings and conclusions he had. In any event, if adverse possession had started, as the judge had found, in 1999, the paper owner’s title would have been established under section 17 of the 1980 Act and the appellant could not have obtained any good title to the verge.
(4) The judge had been entitled to reach the conclusion that the respondent was in actual possession on the relevant date and there was material before him to support such a conclusion on the evidence and his findings that the respondent had not abandoned possession and was in possession by virtue of the estate: section 9(5)(a) of the 2002 Act, ie, by virtue of her own estate due to having extinguished the title of the prior title owner.
John Randall QC (instructed by Lupton Fawcett Denison Till, of Leeds) appeared for the appellant; Andrew Francis (instructed by Shulmans LLP, of Leeds) appeared for the respondent.
Eileen O’Grady, Barrister
