Adverse possession claims turn on the application of rules laid down in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 to the facts of the case. In simple terms, squatters must establish that they have dispossessed the paper owner by going into possession of land for the requisite period without the consent of the landowner. They must show that they have had control of the land and that they intended to exclude the world at large so far as reasonably practicable and so far as the law allows.
Chambers v Havering London Borough Council [2011] EWCA Civ 1576; [2012] PLSCS 06 serves as a useful reminder of how these rules apply. The trial judge concluded that the squatter had not had factual possession of the land. He ruled that the squatter had used the land intermittently, and not continuously. The use that the squatter had made of the land was also consistent with the local authority’s own intended use of the land as woodland or parkland. In addition, the squatter had fenced the land in order to stop animals getting out, rather than to prevent anyone getting in.
The Court of Appeal ordered a retrial in respect of some of the land. It agreed that very occasional use of land might not suffice. However, continuous use is not the test. It is taking possession that counts. If possession has passed to the squatter, he will not need to use the land continuously to remain in possession of it.
The decision also reminds us that the suggestion in Leigh v Jack (1879) 5 Ex D 264, that possession should be tested by reference to the paper owner’s intentions, is heretical and wrong. The test appeared to come back into fashion following Beaulane Properties Ltd v Palmer [2005] 14 EG 129 (CS). Indeed, the Land Registry began to apply it in some cases where the new rules laid down in the Land Registration Act 2002 did not apply, to make it more difficult for adverse possession claims to registered land to succeed. However, it abandoned the test following decisions confirming that English law on adverse possession does not offend against the European Convention on Human Rights.
Their Lordships also cast doubt on previous decisions that focussed on why the squatter had erected fencing, on the ground that fencing keeps people out, as well as keeping livestock in: Hounslow London Borough Council v Minchinton (1997) 74 P&CR 22. It seems, therefore, that a squatter’s reasons for erecting fencing may be immaterial.
The Court of Appeal dealt with one final point, which crops up regularly in adverse possession cases (as well as in claims to prescriptive easements and to have established town or village greens). The trial judge held that the squatter was occupying the land under an implied licence because the landowner had done nothing to evict him. Their Lordships disagreed. They held that it would be quite wrong to equate silent acquiescence with permission. There must be some overt act, which is intended to be – and is – understood as permission to do something that would otherwise constitute trespass. There was no such act here from which an implied licence could properly be inferred.
Allyson Colby is a property law consultant
