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The judge ruled that he must start by assuming the paper owners were in possession of their land. The question then arose as to whether the squatter had dispossessed the paper owners by going into possession of the land for the requisite period without their consent and with the intention of excluding the world at large, as well as the paper owners, so far as reasonably practicable and as far as the law allowed.
The courts will readily assume that an owner has the requisite intention to possess land. Consequently, the paper owner can usually point to the slightest of acts to confirm his possession of land. A trespasser’s task is much harder. The courts require clear and affirmative evidence of unequivocal acts of possession by a trespasser, and if those acts are open to more than one interpretation, the courts will presume that the paper owner remained in legal possession of the land. However, once a trespasser acquires possession of land, something more will be required to interrupt his possession. The courts will scrutinise the nature and frequency of the paper owner’s actions more closely to ascertain whether the trespasser remained in uninterrupted possession of the disputed land.
The line between acts of user and possession is difficult to draw. Fencing land to keep people out is an unequivocal act of possession, but fencing land to keep animals in is not. Maintenance of existing boundaries is also equivocal; cultivating crops is an unequivocal act of possession, but cutting timber or turf may not be. Stationing a moveable caravan on land may also be insufficient, by itself, to constitute an unequivocal act of possession.
Using these principles, the judge decided that the squatter had not taken unequivocal possession of the disputed land before 13 October 1991. The squatter had visited the land frequently, and had carried out preparatory work to enable him to occupy it, but the paper owners had retained access to the land and had continued to use it for picnics, quad biking and parking. Moreover, the squatter did not erect proper fences until 1995.
The judge accepted that the squatter had eventually taken sole and exclusive possession of the land, and that time did then begin to run against the paper owners. However, the clock did not stop ticking until after 13 October 2003, when the registered proprietors were able to take advantage of a tough new adverse possession regime to stymie the squatter’s claim.
Allyson Colby is a property law consultant