Adverse possession – Registered land – Appellant claiming acquisition of title to land by adverse possession – Whether appellant showing factual possession and intention to exclude world at large – Whether failure to block access from other property of paper owner defeating adverse possession claim – Whether paper owner required to show that such access in fact used for continued acts of ownership in months following appellant’s claimed ouster – Appeal dismissed
In 2004, the appellant lodged an application at the Land Registry to be registered as the proprietor of certain land. In doing so, he relied upon 12 years’ uninterrupted adverse possession prior to October 2003, when the Land Registration Act 2002 came into force. The respondents, who held charges over the land granted by the owner of the paper title, opposed the application. The matter was referred to adjudication. The deputy adjudicator found that the appellant had moved onto the land prior to October 1991 with the intention of acquiring title by way of adverse possession and that, by the relevant date, he was grazing sheep, horses and ponies on the land, had erected fencing and had kept the main entrance gates locked. He further found that the paper owner had made no meaningful use of the disputed land since acquiring it, together with an adjoining manor house, in 1990. He concluded that the appellant had shown both an intention to possess the land, and factual possession, by October 1991 and had remained in undisputed possession for the necessary 12-year period thereafter so as to make out his claim.
That decision was reversed on an appeal by the respondents: see [2007] EWHC 2087 (Ch); [2007] PLSCS 190. The appeal judge attached importance to the appellant’s failure to block a garden gate that led from the manor house to the disputed land, so that occupants of the manor house were not excluded. He further held that the adjudicator’s finding regarding the limited nature of the paper owner’s use went against the weight of the evidence.
The appellant appealed. He contended that: (i) it was irrelevant that the paper owner was able to access the land by using the garden gate unless it had in fact used that access and exercised continued acts of ownership over the land sufficient to manifest a retention of possession; and (ii) such manifestations of ownership would have had to take place within a limited time, say nine months, after October 1991, in order to disprove the appellant’s claimed assumption of possession.
Held: The appeal was dismissed.
There was no principle of law under which a claim of outster could be defeated only by acts of possession carried out by the paper owner within a limited period after the date by which ouster was claimed to have taken place. It was not for the paper owner to disprove a claim of ouster; the burden lay upon the appellant, as the person claiming to have dispossessed the registered proprietor by October 1991, to prove that, by that date, he had: (i) assumed factual possession of the land, in the sense of having exclusive physical control of it; and (ii) held the necessary intention to possess it to the exclusion of the world at large, including the paper owner. If he was to discharge that burden, his evidence had to be unequivocal with regard to his assumption of factual possession and his intention to possess: Powell v McFarlane (1979) 38 P&CR 452 applied. If the evidence showed that he had discharged that burden as at October 1991, it would follow that he had been in possession of the land from that date and the paper owner had not. If the paper owner thereafter purported to exercise rights of occupation over the land, those activities would not ordinarily negate the appellant’s prior assumption of possession unless the paper owner ousted him from possession and resumed exclusive possession, if necessary by bringing proceedings against him.
However, the appellant’s claim to have assumed exclusive possession by October 1991, and to have intended from then on to possess the land to the exclusion of the world at large and the paper owner in particular, was at best equivocal. Fencing across the garden gate, locking it or otherwise preventing access through it would have been the obvious way for the appellant to demonstrate the necessary intention. There was no merit in his taking other steps to exclude the world at large if the paper owner was left in a position to enjoy the same free and unobstructed access to the land that it had always had. The appellant’s omission to bar such access by October 1991 rendered hopeless his claim to have assumed exclusive possession by that date or to have manifested an intention to exclude the world at large.
George Laurence QC and Mark Wonnacott (instructed by Bindmans LLP) appeared for the appellant; Jonathan Gaunt QC and Gary Cowen (instructed by Addleshaw Goddard LLP and Rosling King LLP) appeared for the respondents.
Sally Dobson, barrister
