Case Law Update – Adverse possession Thorpe v Frank 2019
What is adverse possession?
Adverse possession is sometimes referred to as “squatter’s rights” as it is somebody acquiring ownership over land that is not theirs, based on continuous possession or occupation of that land.
What is required in order to prove adverse possession?
Requisites for legal possession were helpfully set out in JA Pye (Oxford) Ltd. V Graham [2003] as follows:
“there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control (“Factual Possession”); (2) an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”)”
There are also requirements as to how long the claimant must be in possession in order to make the claim.
Here we take a look at the Court of Appeal’s recent decision in the case of Thorpe v Frank where the paving of a forecourt was sufficient to support a claim for adverse possession. There are different requirements depending on whether the land is registered or unregistered and whether the relevant period of occupation ended before or after the implementation of the Land Registration Act 2002. The relevant period of time is 12 years under the old regime and 10 years under the new regime.
This recent case focused on the “factual possession” element of the criteria.
Facts
In 1986 Mr and Mrs T resurfaced and paved over a forecourt in front of their property but which actually formed part of the land owned by their neighbours. The forecourt was used for access by both parties and Mr and Mrs T used it for parking. They also maintained the land by clearing weeds and occasionally jet washing.
The neighbours sold their property in 2012 and in 2013, Mr and Mrs T placed a fence around the paved land and made a claim for adverse possession. The new neighbours objected to the application.
The question was whether the paving of the land was enough to establish factual possession. Boundary features are usually strong evidence to support a claim for adverse possession, however, in this case there were none during the period of adverse possession and the owners of the land had still, at times, entered onto it.
Decision
The Court of Appeal decided that, in this instance, the paving alone could amount to factual possession for the purpose of the claim.
There were a number of factors that the Court found significant in making their decision, including the fact the frontage of the properties within the cul-de-sac were open plan, meaning it would be impossible/impractical to fence off or exclude people from crossing each other’s land. Also, the fact the owner chose the materials when repaving was found to be consistent with the intention to occupy.
These types of cases in general turn on the present facts. For example, in the case above, even though the neighbor could still drive over the area of land, this did not mean the owner was not in possession.
It is worth noting that the 12 years of adverse possession occurred prior to the introduction of the Land Registration Act 2002 (which came into force on 13 October 2003). This meant the decision was based on the application of the old law.The new law is more favourable to the land owners which may make a difference when deciding similar cases based on the new law.
At Ramsdens Solicitors we are able to provide advice and to make applications to the Land Registry on behalf of clients who find themselves in such situations. These claims are not limited to shared driveways and can concern fields, gardens and roadways amongst other pieces of land.
Should you want further information, we have an experienced Dispute Resolution team that can be contacted on 01484 821 500, or by email at info@ramsdens.co.uk.