Land registration – Adverse possession – Paving – Appellant claiming right to land in respondents’ title by adverse possession – Upper Tribunal allowing respondents’ appeal against finding of First-tier Tribunal that appellant had necessary intention and factual possession of disputed land – Appellant appealing – Whether appellant establishing factual possession – Appeal allowed
The appellant and the respondents owned neighbouring semi-detached bungalows in Harcourt Close, Bishopsthorpe, York which was part of an area of residential properties built in the mid-1960s. A dispute arose from the appellant’s claim to have acquired, by adverse possession, part of the land to the front of her property which was included in the respondents’ title.
The appellant claimed that she had paved over the disputed land in 1986. In the intervening time, no person or vehicle had ever crossed the land in question. The respondents contended that the works carried out in 1986 had been a mere temporary trespass which did not amount to possession; and that the appellant’s alleged possession had not excluded others from the disputed land.
The FTT found that the appellant had achieved the necessary factual possession of the land and had the necessary intention to possess it from at least 1986 and that her claim was, therefore, established. The respondents appealed to the Upper Tribunal. The judge ruled against the appellant on the issue of factual possession the respondents’ appeal to the Upper Tribunal succeeded.
The appellant appealed. The issue was whether the appellant had established the necessary possession of the disputed land in fact by the laying of paving in 1986 and the continuation of that paving on site at all times thereafter.
Held: The appeal was allowed.
(1) The question was simply whether the defendant squatter had dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner. There would be a “dispossession” of the paper owner in any case where a squatter assumed possession in the ordinary sense of the word. If the squatter was in possession the paper owner could not be. If the paper owner was at one stage in possession of the land but the squatter’s subsequent occupation of it in law constituted possession the squatter must have “dispossessed” the true owner. If the law was to attribute possession of land to a person who could establish no paper title to possession, he had to be shown to have both factual possession and the requisite intention to possess. The squatter had to have a sufficient and appropriate degree of physical custody and control over the land: Powell v McFarlane (1977) 38 P&CR 452 and JA Pye (Oxford) Ltd v Graham [2003] AC 419; [2002] PLSCS 143 applied.
(2) In considering whether the alleged possessor had been dealing with the land as an occupying owner might have been expected to deal with it, the nature of the land in question was very important. It was generally impossible to secure every part of the boundary so as to prevent intrusion. In the present case, while it would have been physically possible to create more of an enclosure, this was also a type of open land. It was an open plan estate and there were, in fact, covenants restraining the erection of buildings, fences and other structures in front of the building line. Historically, the land had been left open. Here the land in front of the houses had always been open plan in character. The paving of the relevant area with a permanent surface was a clear assertion of possession. Even without the covenants, that assertion of possession was sufficient for the purposes of section 15(1) and (6) of the Limitation Act 1980, but the covenants afforded some background as to why the land was of the character that it was. While enclosure of the land in issue by the squatter was an obvious manner in which he could take possession, it was not an absolute requirement and it was not the only way in which possession of land could be asserted and achieved.
(3) In the present case, having regard to the nature of the open forecourt area, the ripping up of the old surface, digging out the land, inserting hardcore, levelling the surface with the area surrounding it and then replacing the flags with new flags and bricks of one’s own choosing were just the sort of actions that one would expect an occupying owner to do in dealing with the land. This was a clear interference with the rights of the paper title owner, asserting not merely a momentary control over the nature of the land’s surface but a control of it for the future. That was not merely a temporary trespass for two weeks during the works period, it was the creation of something of permanent and enduring character. In an open plan estate of the present character, if one had paper title to an area, the positive imposition of a permanent new surface upon the area was precisely what an occupying owner would do for his own convenience and/or amenity, even if in practice it were not possible to prevent neighbours and others passing and repassing over the surface. The making of physical changes to the surface of land was very material in determining the taking of adverse possession and such action was capable of constituting possession. Paving activity could constitute an assertion of possession, depending on the facts of each particular case and in particular the nature of the land in question. There was nothing to suggest that it may not be so in the case of an open plot of the type in issue here. The matter turned upon the nature of the land over which the paving was laid and then left in permanent position. The act of ripping up an old surface covering and replacing it with another of a permanent character was well capable of constituting a taking of factual possession. The disputed land was in the possession of the appellant in favour of whom the period of limitation could run for the requisite period: Marshall v Taylor [1895] 1 Ch 641, Kynoch Ltd v Rowland [1912] 1 Ch 527, Treloar v Nute [1976] 1 WLR 1295 and Williams v Usherwood (1983) 45 P&CR 235 considered.
Geraint Wheatley (instructed by Harland & Co, of York) appeared for the appellant; Edward Denehan (instructed by Gregsons) appeared for the respondents.
Eileen O’Grady, barrister
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