Paper title irrelevant to whether possessor’s acts are equivocal or not

The Court of Appeal has refused an appeal from a decision dismissing a claim for adverse possession of a passageway in White and another v Amirtharaja and another [2022] EWCA Civ 11; [2022] PLSCS 7. The case concerned a passageway that ran between two commercial buildings in Stanford-le-Hope, Essex. In 2005 the passageway was registered to the owner of the buildings with possessory title which was later upgraded to absolute title. The respondents acquired the buildings in 2017 and sought planning permission to replace them with a single unit. At that point the proprietors of the house at the end of the passageway – the appellants – claimed that they, and their predecessor in title, who had purchased the house in 1977, had acquired title to the passageway through adverse possession. Evidence suggested that the passageway had once been used as the principal means of access to the house from the road. However, the right of way had fallen into disuse, and the entrance from the passageway onto the roadway was barred by a gate, which used to be left open, but had been locked since 1997. The appellants claimed that the registration of title to the passageway was a mistake and sought rectification of the register to add the passageway to their own title. The Land Registry rejected their application but the county court decided that there was sufficient evidence to show that they had been in actual possession of the passageway and had the necessary intention to possess it to establish a claim by adverse possession. That decision was reversed on appeal by the High Court judge, who decided that a locked gate was equivocal and consistent with controlling access to the passageway, rather than intending to exclude the paper owner. The only question before the Court of Appeal was whether the judge had wrongly permitted the respondents to advance their appeal on the basis that their predecessors had paper title to the disputed passageway. The court accepted that the issue was not raised at trial as there was no evidence before the court of any chain of title. It was therefore a new issue before the High Court judge who should not have allowed the respondents to rely on it on appeal since it either required new evidence or the evidence at trial would have been different if it had been run below. However, the judge had not accepted that the respondents’ predecessors had a paper title to the passageway and the issue was wholly irrelevant to the question of whether the appellants could establish title by adverse possession, which turned on the weight attributed by the trial judge to the evidence before him. Even if there had been a mistake in the 2005 registration, it would not assist the appellants: the issue was not relevant to whether the acts of the putative adverse possessor are equivocal or not. There was nothing in the judge’s reasoning which suggested that the paper title issue had any bearing on his decision and as permission to appeal the finding on adverse possession had been refused that decision was now unchallengeable. Louise Clark is a property law consultant and mediator