26 March 2019 | Firm news | Article by Kathryn Cooling

Adverse Possession: what is sufficient to prove exclusive possession?

The recent decision of the Court of Appeal in Thorpe v Frank is expanding our understanding of what can amount to adverse possession. The Court of Appeal has confirmed that in certain circumstances repaving or resurfacing, in itself, can amount to exclusive possession of land.

Adverse possession

Adverse possession simply put means becoming the legal owner of land by possessing it for a specified period of time.

In order to claim ownership of land by adverse possession there are a number of elements you must prove. Foremost among these is proving you have had factual possession of the land and that you had the intention to possess said land.

There must be a sufficient degree of exclusive physical control over the land and it is generally considered to show such control you must exclude all others. However, this was not the case in the recent decision in Thorpe v Frank.

The case

Mrs Thorpe was the owner of a semi-detached bungalow. Mr and Mrs Frank owned the adjoining bungalow. In 1986, Mrs Thorpe adjusted the surface level of the forecourt in front of her property and repaved it. There was no objection by Mr and Mrs Frank and they continued to use the forecourt as an access way to their property and for parking.

In 2013 Mrs Thorpe fenced around the forecourt enclosing it. This inevitably led to a dispute as part of the forecourt appeared on the paper title to Mr and Mrs Frank’s property. Mrs Thorpe sought registration as freehold proprietor of that land.

The Court of Appeal

The case ended up in the Court of Appeal where it was decided that repaving of the forecourt could amount to possession to support a claim for adverse possession.

The Court of Appeal, in considering whether Mrs Thorpe had been dealing with the land as an occupying owner considered the circumstances of the land itself. The land in issue had always been open plan in character due in part to covenants which restrained fencing and building work. With this in mind it appeared that the paving of the land with a permanent surface was a clear assertion of possession by Mrs Thorpe. A. L. Smith LJ commented “She made it readily appear that the land was part of the curtilage of No. 9. On that basis, there could hardly be a clearer act of possession”.

Possession of land

As the required period of possession had occurred prior to the introduction of the Land Registration Act 2002 (“LRA 2002”), the matter was decided on the old rules which required 12 years possession.

Since the introduction of the LRA 2002 it is more challenging to make a successful claim for adverse possession if you are relying on any period of possession which began after October 2003. The LRA 2002 has also made it more difficult to make a successful application for adverse possession of land which is already registered. Property and land owners, however, should be aware of the need to keep the Land Registry informed of their correct contact details.

It is also important to maintain a sufficient degree of knowledge of the character of the land to recognise if any substantial changes are made by another party. It is easier to notice a fence or a wall where it shouldn’t be rather than different surfacing but this could be sufficient for someone to prove adverse possession.

Hugh James has a dedicated team of experts with experience in dealing with adverse possession claims. If you require assistance or advice regarding ownership of land, please contact a member of the Property Litigation team on 029 2267 5560 who would be happy to discuss options and costs.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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