Is paving an area of land enough to successfully claim the title by adverse possession?

The typical stories about adverse possession that make the news are about squatters living in and taking adverse possession of entire houses, but this is rare. Adverse possession (AP) claims are more typically about areas of land next to the applicant’s property, often land sitting between two properties, where for a long period one party (the squatter) has occupied and used the land to which they do not have the paper title. For various reasons they decide that they have used the land without challenge for so long that they would like to be registered as the legal owner of the land. To do this they must apply to the Land Registry, and provide supporting evidence about their occupation.  Neighbouring parties who are or might be the true legal owner of the land will be notified of their application, and have the opportunity to object.  If not resolved, disputed applications end up at the First-Tier Tribunal (Property Chamber), and if appealed, through the levels of Tribunals through to the Court of Appeal.

A person who wants to claim title to land by way of AP has to show two things:

• That they have enjoyed uninterrupted factual possession of the land for at least 10 or 12 years (the period depends on whether the land is registered and when the possession took place)
• that they have had an intention to possess the land during that time

This may seem straightforward, but in reality, it can be difficult to decide what amounts to “factual possession”.

If the applicant enclosed the land with say, a fence or wall, this is often a good indicator of factual possession, but enclosure may not always be possible, depending on the nature of the land.  All pieces of land are unique, and therefore AP claims must be considered very much on a case by case basis. There may be other acts which indicate possession, such as maintaining the land or changing the surface of the land.  The court or tribunal must consider, in the context of the nature of that particular land, what acts the applicant might have done to establish factual possession.  They must also be careful not to assess factual possession on the basis of whether other persons have been physically excluded from the land, but rather whether the owner has taken the steps that would be expected of an owner of that particular land.

This was emphasised in the recent Court of Appeal case of Thorpe v Frank and another [2019] EWCA Civ 150

The applicant Mrs Thorpe applied to the Land Registry for registration as the freehold proprietor of the disputed land, which was a small apron of land between her residential property and a neighbouring property on a typical 1960s open-plan housing estate.  Mrs Thorpe relied on the following statement in her application:

“The area in front of my house was paved with concrete paving slabs by the previous owner..in a rectangular shape, believing the land to be hers… The property was then sold to me in this state on 17 January 1984 and no mention was made to me of any other access across the land, nor that the land belonged to the title of another. Accordingly, in 1985, I decided to have the area repaved and this paving kept to the existing area, at least where it adjoins the neighbour’s gravelled area perpendicular to the front of my house. I note that the neighbour never questioned this then or until now, and would have had to have made reference to it at the time of first registration of their own property, but clearly did not. In the intervening time, no person or vehicle ever crossed the land in question from 1985 to date, during which time I have parked my car in the space. Given the space that the neighbour…has to access garages and the property, this is not surprising. … There was, prior to 1984, a concrete “lip” around the paved area which clearly demarcated the area adversely possessed, such that it is “obvious” to a third party that the area forms the area attached to 9 and further that it is clearly not roadway access to any other property. The new paving again makes it clear that the land is being dealt with as my own and not for some other benefit or access route.”

When this case reached the Court of Appeal, it had to decide whether Mrs Thorpe had established possession of the disputed triangle by laying the 1986 paving and continuing the paving on-site afterwards. The Court decided that was enough for Mrs Thorpe to establish factual possession.

Citing earlier case authorities, the Court gave the following reasons for its decision:

• The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular, the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion.
• What is a sufficient degree of sole possession and user must be measured according to an objective standard, related to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants
• The alleged possessor must have been dealing with the land in question as an occupying owner might have been expected to deal with it and no-one else must have done so
• Here, 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.
• the nature of the land in question is very important. 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.
• The ways in which an owner might be expected to deal with the land depend upon whether the estate is of a type that is capable of physical occupation, and, if so, upon the physical characteristics of the property. If the estate is one that carries with it a right of physical occupation, the owner might be expected to use and enjoy it by occupying it personally, or by authorising others to do so.
• There may be no legal objection to occupation of the land but its physical characteristics might make enjoyment by occupation impractical. It could be covered with water.
• While enclosure of the land in issue by the squatter (applicant) is an obvious manner in which he can take possession, it is not an absolute requirement and it is not the only way in which possession of land can be asserted and achieved.

The Court found that Mrs Thorpe’s actions were just the sort of actions that would be expected of an occupying owner of this land. It also commented that the Upper Tribunal had wrongly concentrated on the lack of steps taken by the occupying owner to exclude others from crossing the disputed land, and confirmed that possession must be considered in every case with reference to the peculiar circumstances.

If you need advice on making or objecting to an adverse possession application, contact Sarah Coates-Madden.