Neighbours – Boundary – Adverse possession – Appellants’ predecessor transferring part of garden to respondents’ predecessor – Appellants as paper title owners seeking to retake possession – Respondents successfully claiming adverse possession – Whether transferor giving consent to possession – Whether appellants interrupting adverse possession – Whether respondents reasonably believing they owned disputed land — Appeal dismissed
The parties were the owners of neighbouring residential properties. The appellants had lived in their property since July 2005, a house with a substantial garden, which they had acquired in 2000 following the death of the previous owner (L). In 1992, L had sold a portion of his garden to the respondents’ predecessors.
A dispute arose over a strip of land measuring 890 sq ft, which physically formed part of the respondents’ garden following the transfer (the strip). The appellants were held by the county court to be the paper title owners of the strip but the court held that the respondents had acquired the strip by adverse possession.
The appellants appealed arguing that: (i) since the respondents’ possession of the strip had been with L’s consent, their possession could not be said to be adverse; (ii) any adverse possession of the strip by the respondents had been interrupted by the appellants’ attempt to fence off the strip in July 2007 so as to start the time for claiming adverse possession running again; and (iii) the respondents had failed to satisfy the requirement in paragraph 5(4)(c) of Schedule 6 to the Land Registration Act 2002 that, throughout the previous period of 10 years, they reasonably believed that they owned the strip.
Held: The appeal was dismissed.
(1) In order to show that the appellants’ predecessor had given implied consent to the respondents’ occupation of the strip, the crucial question was whether his acts and words were probative and not merely consistent with the giving of permission. Mere acquiescence in another’s use of one’s land was not the same as the grant of permission for that user for the purposes of stopping time running in favour of an adverse possessor. On the facts of the present case, the judge had been entitled to conclude that the appellants’ predecessor had not consented to the respondents’ use of the strip: J Alston & Sons Ltd v BOCM Pauls Ltd [2008] EWHC 3310 (Ch); [2009] 1 EGLR 93 considered,
(2) An adverse possessor had to show that he had exclusive physical control of the land in question. If he lost that control, his adverse possession was interrupted and came to an end and time would begin to run again. Given the specific and nebulous nature of possession, in the ordinary case of adverse possession, one had to find that the paper title owner had taken possession in the ordinary sense of that word, to the exclusion of the person claiming adverse possession. The paper title owner had the advantage in law that, to effect repossession of property, it was sufficient to show that possession had been resumed for a short period of time.
In the instant case, it was clear that the appellants had intended that they should recover possession, but they did not retake possession in any meaningful sense. It was not enough that they had planted stakes or taken other steps symbolic of taking possession of the whole of the strip. The appellants had embarked on an enterprise which, if completed, would have involved their retaking possession of the strip but they had been interrupted by the respondents and, in the ensuing confrontation, they had abandoned the enterprise, Accordingly, the judge had been entitled to conclude that the respondents’ adverse possession had not been interrupted: Powell v McFarlane (1979) 38 P&CR 452 and JA Pye (Oxford) Ltd v Graham [2002] PLSCS 163; [2002] 28 EG 129 (CS) considered; Bligh v Martin [1968] 1 WLR 804 distinguished.
(3) The judge’s implicit finding, as the primary fact finder, that the respondents had a reasonable belief that they owned the strip, for the purposes of paragraph 5(4)(c) of Schedule 6 to the 2002 Act, was not against the weight of evidence.
Laura Collignon (instructed by Child & Child) appeared for the appellants; Christian Sweeney (instructed by Lyons Davidson) appeared for the respondents.
Eileen O’Grady, barrister
