Land – Adverse possession – Proprietary estoppel – First defendant living at traveller’s site and carrying out activities on claimant’s land – Claimant applying for injunction against defendant to restrain trespass to land – First defendant bringing counterclaim and seeking declaratory relief – Whether first defendant establishing adverse possession or proprietary estoppel – Claim dismissed
The claimant was the registered proprietor of Two Mile Ash Farm in Milton Keynes. A dispute arose concerning three fields (the land) which formed part of that farm within the claimant’s registered title. The land adjoined the Calverton Lane Travellers’ Site. The first defendant was a Romany Gypsy. He and his wife and children lived at the site as did his mother and his late father. The first defendant was a small livestock farmer. He grazed horses and some sheep on the land and had undertaken other activities on the land.
The claimant said that the first defendant was a trespasser and applied for an injunction to restrain that trespass. The first defendant contended that he had succeeded to the title to the land which his father obtained by reason of adverse possession for at least 12 years before 13 October 2003 when the relevant provisions of the Land Registration Act 2002 came into force. Alternatively, he had the benefit of a proprietary estoppel preventing the claimant from challenging his right to the land.
The question for the court was whether the first defendant had established his right to the land on either of those bases.
Held: The claim was dismissed.
(1) It was common ground that in determining the question of adverse possession, there was a presumption that the owner of land with a paper title was in possession of the land. If a person did not have the benefit of that presumption, the burden was on him to show that he was in factual possession of the land with the requisite intention to possess. He had to show that he had an appropriate degree of physical control of the land, his possession was exclusive and he had dealt with the land as an occupying owner might have been expected to deal with it and no-one else had done so; whether a person had taken a sufficient degree of control was a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which such land was commonly enjoyed. The person seeking to show possession had to show that he had an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title. The relevant intention need not be an intention to own. The intention to possess had to be manifested clearly so that it was apparent that the person now claiming possession was not merely a persistent trespasser. Equivocal acts would not demonstrate the necessary intention. In some cases, a person in possession might add to his own period of possession, the time when his predecessor was in possession; in particular where the predecessor relinquished possession to a person who then took possession: Powell v McFarlane (1979) 38 P&CR 452, JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2002] 28 EG 129; [2003] 1 AC 419 and Food Convertors Ltd v Newell [2018] EWHC 926 (Ch); [2018] PLSCS 81 applied.
(2) Looking at the evidence in the round, the first defendant’s father began using the land by keeping horses and ponies on it at some point in the mid-1980s and that use extended to all three of the fields. In the light of those findings, the first defendant had to show that there was a twelve-year period before October 2003 in which he and/or his father had been in factual possession of the land with the necessary intention to possess. That had to be shown on the balance of probabilities but on the footing that actions which were equivocal did not amount to possession or to the demonstration of an intention to possess. Caution was required to be exercised before the court could be satisfied that the requisite elements had been established.
The court was satisfied that the first defendant had shown that from at the latest 1990 his father and subsequently he had sufficient physical control of the land to constitute factual possession and that they also had the necessary intention to possess the land against others including the claimant (and its predecessor) as paper title owner. Further, both the physical control and the intention continued until October 2003 and after. In those circumstances the claim to a title by adverse possession was made out with the consequence that the claim for an injunction against the first defendant failed.
(3) There was no suggestion that either the claimant or its predecessor represented to the first defendant or his father that it regarded them as having any right to the land. In order to establish proprietary estoppel, the first defendant would have to show first, that he or his father acted to their detriment by incurring expenditure in relation to the land believing that they had an interest in the land. Next, he had to show that they so acted in circumstances where the claimant or its predecessor knew of that detrimental action and also knew that it was being undertaken in reliance on that belief. Finally, the circumstances had to be such that the failure of the claimant or the county council to intervene amounted to an acquiescence such as to make it unconscionable for the claimant now to rely on the first defendant’s absence of legal title. Although it was now academic, the first defendant had failed to establish proprietary estoppel.
The first defendant came to believe that he owned the land but there was nothing to indicate that the expenditure was incurred in reliance on that belief as opposed to an intention to possess. It had not been shown that the claimant or its predecessor were aware of the activities of the first defendant and his father let alone that they were incurring expenditure in reliance on a belief that they had rights in the land. In addition, the circumstances were not such that it would be unconscionable for the claimant to rely on its legal rights. There was no scope for a finding that there was a proprietary estoppel operating in the first defendant’s favour.
Andrew Lane (instructed by Milton Keynes Council Legal Services) appeared for the claimant; Timothy Jones (instructed by DFA Law LLP, of Northampton) appeared for the first defendant; The second defendant did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Milton Keynes Council v Wilsher and others
