Adverse possession — Whether appellant in continuous factual possession of land — Whether possession interrupted by visits by true owner — Judge finding insufficient manifestation of intention to possess — Appeal dismissed
The appellant occupied a caravan on a site adjoining land owned by the local council. Since the 1970s, he had kept livestock, including horses, on the land, and had fenced the land, installed a padlocked gate and constructed a horse shelter. However, from time to time he had temporarily removed the horses and promised to move off the land at the request of the council. In 1995, the respondents purchased the land at auction, and brought possession proceedings against the appellant, who claimed to have acquired the land by adverse possession.
The judge held that the appellant was unable to demonstrate 12 years’ uninterrupted factual possession because continuity had been broken on two occasions, when the true owner had entered onto the land in order to inspect it. In view of the occasional removal of the horses, the judge found that the appellant had failed sufficiently to manifest an intention to possess the land. The appellant appealed.
Held: The appeal was dismissed.
1. Adverse possession contained two elements, namely: (i) factual possession, requiring a sufficient degree of custody and control of the land; and (ii) animus possidendi, which comprised both a subjective intention to possess and an outward manifestation of that intention, thereby making it clear to the world at large: JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2002] 3 WLR 221 applied. The manifestation of intention had to be unequivocal and had to remain manifest throughout the 12-year period: Powell v McFarlane (1979) 3 P&CR 452 and Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912; (2001) 82 P&CR 39 applied. There was little doubt that the appellant had remained in continuous de facto possession from 1980 onwards. The judge had erred in finding that the true owner could resume possession, so as to interrupt the continuity of possession by another, merely by going onto land of which that other was clearly in factual possession. Such possession did not necessarily require continuous physical occupation; that would depend upon the nature of the land: Bligh v Martin [1968] 1 WLR 804 considered. On the facts, the owner’s inspection of the land, with a view to its sale or to the erection of a boundary fence, did not give rise to a break in the continuity of the appellant’s possession.
2. However, the judge had been correct to find that the appellant had failed to manifest his intention to possess the land for himself and to the exclusion of all others; the appellant’s habit of promising to leave the land was relevant in that regard. The nature of the appellant’s use of the land, continuous though that use might have been, had not indicated to the world at large that he possessed the necessary intention. It was not until the installation of the padlock in 1985, at the earliest, that the appellant could show the necessary intention, and this was not sufficiently early for him to demonstrate 12 years of adverse possession.
John Dagnall (instructed by Halliwell Landau) appeared for the appellant; Alan Masters (instructed by Atkins Hope, of Croydon) appeared for the respondents.
Sally Dobson, barrister