The Land Registration Act 2002 (the 2002 Act) introduced a new adverse possession regime, which makes it more difficult for squatters to deprive a registered proprietor of his or her title. This is because the registered proprietor can now require a squatter to prove not just that he or she has been in adverse possession for 10 years, but also that he or she fulfils one or more of the conditions laid down in the 2002 Act and is entitled to be registered as the new owner.
However, the legislation also includes transitional provisions, which preserve the old regime in cases where a squatter had successfully deprived a registered proprietor of title to land (by going into and then remaining in possession of the land for at least 12 years) before the 2002 Act came into force. In such cases, squatters can still apply for registration under the old rules.
The question that arose in Thorpe v Frank [2019] EWCA Civ 150; [2019] PLSCS 35 was whether a householder had adversely possessed a triangular part of the forecourt in front of her property when she tore it up, dug out the soil to reduce the height of the surface and then paved it. The Upper Tribunal ruled that the householder had trespassed temporarily in order to lay the paving, but that her actions could not be regarded as “the taking of possession of the land for the future”. The householder had left the land open and did not take control of it before erecting a fence in 2013 (which caused the dispute that led to the proceedings between the parties).
The Court of Appeal has overturned the decision. It reminded us that, while enclosure of land is an obvious way of taking possession, it is not an absolute requirement and is not the only way in which possession of land can be asserted and achieved.
In Powell v McFarlane (1977) 38 P&CR 452, Slade J said that the question of what actions will suffice must depend on the circumstances – and in particular on the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. Therefore, what is a sufficient degree of sole possession and user must be measured according to an objective standard, related to the nature and situation of the land involved.
The Court of Appeal accepted that other cases concerning paving had involved additional acts of possession as well. However, in an open-plan estate like this, the positive imposition of a permanent new surface on an open forecourt was precisely what an occupying owner would do for his or her own convenience and/or amenity (even if it were not possible to prevent neighbours and others passing and repassing over the surface). The householder had combined the land in question with her own land, making it appear that it was all part of her curtilage. On that basis, there could hardly have been a clearer assertion of possession.
Allyson Colby, property law consultant
