Key points
- For the purposes of the law of adverse possession, actions that are equivocal, or open to interpretation, will not suffice to dispossess paper owners of their land
- Actions by landowners with rights of way over land may be referable to their existing rights and are, therefore, equivocal
If ownership of land is to be attributed to someone who cannot establish a paper title to it, he or she must – to paraphrase Slade J in his classic judgment in Powell v McFarlane [1977] 38 P&CR 452 Ch – be shown to have had factual possession of the land, as well as an “intention to possess” it for his or her own benefit. And that intention must have been made plain to the world.
Statements by trespassers as to their intentions lack evidential value; they may be self-serving and difficult to challenge. So a trespasser’s actions will speak louder than words – and, although the court will readily ascribe possession to a paper owner, a trespasser’s task is more difficult. The court will require evidence of unequivocal actions. Those actions must make it clear that the trespasser is using land in the way that the paper owner would. Actions that are equivocal, or open to interpretation, will not dispossess paper owners of their title to land.
Passageway
Enclosure is usually strong evidence of an intention to possess land. But it can also be equivocal. Amirtharaja v White [2021] EWHC 330 (Ch); [2021] PLSCS 48 concerned a passageway running between two commercial buildings in Stanford-Le-Hope, Essex. They were used as an office and a workshop respectively and had been owned by the same family for decades. Title to the office was registered in 1998, and the workshop and passageway were registered with possessory title in 2005, even though the Land Registry’s surveyor could not obtain access to the passageway, reporting that it was full of debris and did not appear to be used or occupied by anyone.
The buildings changed hands in 2017 and the buyers applied for planning permission to replace them with a single unit – at which point the proprietors of Hollis House, which was situated at the end of the passageway, stepped forwards. They claimed that they, and their predecessor in title, who had acquired Hollis House in 1977, had acquired title to the passageway through adverse possession.
The passageway had once been used to get to and from the garden of Hollis House, but it had fallen into disuse and the entrance onto the access road, at the far end of the passageway, was barred by a gate that was securely locked. The owners of Hollis House held the key and claimed that, in addition to controlling access to the passageway, they had used the space for storage. Consequently, they sought to have it included in the title to Hollis House. But the Land Registry rejected their application. It suggested that the evidence was equivocal because it could be referable to possession of or, alternatively, an easement over the passageway.
Will we ever get into Chancery?
The owners of Hollis House issued proceedings in the county court, which decided that there was sufficient evidence to support their claim. They had been in actual possession of the passageway and had had the requisite intention to possess it for sufficient time to qualify for registration under transitional provisions in the Land Registration Act 2002 (applicable where an adverse possessor’s right to be registered was acquired before the 2002 Act came into force). Consequently, there was a mistake on the register that required rectification.
Five months later, it emerged that the proceedings had, extraordinarily, been issued in the names of all three owners of Hollis House, even though one of the proprietors had died 16 months before the proceedings were issued. But no one had informed the court and the judge had referred to the deceased’s need to use the passageway for wheelchair access while considering whether or not to rectify the register.
It could almost have been the stuff of Charles Dickens’ Bleak House. But the Chancery Division of the High Court refused to strike out the claim retrospectively, without even considering the merits of the appeal that was listed for hearing. There were two surviving owners. So the claim was not a nullity.
Equivocality
On appeal, the judge noted that, in Littledale v Liverpool College [1900] 1 Ch 19, the court had ruled that the installation of locked gates by someone with a right of way over the land to which the gates controlled access was equivocal. Had such action been taken by a complete stranger, its decision might well have been different. But the gates were installed to protect the right of way and were referable to rights that already existed. The Court of Appeal had also reached a similar decision in George Wimpey & Co Ltd v Sohn [1967] Ch 487 in relation to the enclosure of land, which a hotel had a right to use as a garden.
What of the fact that, in JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, the House of Lords had suggested that some of the reasoning in Littledale was heretical? The judge considered that Littledale remains good law as to the equivocality of a locked gate – and found it telling that the transfer to the owners of Hollis House had not included the passageway.
The owners of Hollis House had sought to prevent youths from entering the passageway and coming into their garden. The evidence was consistent with a right of way and/or an easement of storage – and was equivocal. So there was no reason to undo the registration of the title to the passageway.
Allyson Colby is a property law consultant
