Paving the way to land ownership: Recent developments in adverse possession

Solicitor Jody Proudman, from Harrison Drury’s property litigation team, considers the implications of the Court of Appeal decision in the Thorpe v Frank case, and how it may affect future claims for adverse land possession.

Adverse possession, put simply, is a person (often called a ‘squatter’) dispossessing an owner of land by possessing the land themselves for a requisite period without the consent of the owner. If successful, the squatter may register themselves as the owner of that land.

Adverse possession requires two elements to be established:

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).

Factual possession signifies an appropriate degree of physical control and must be a single and exclusive possession. What constitutes a sufficient degree of exclusive physical control depends upon the circumstances. This includes the nature of the land and in what manner the land is commonly used or enjoyed.

Considering the circumstances in a recent dispute

In Thorpe v Frank [2019] EWCA Civ 150, the Court of Appeal considered the circumstances in which factual possession might be established in the absence of enclosure of the land (which is usually an indicator of achieving the required degree of control for possession) and in the action of laying paving.

Mrs Thorpe and the Franks owned adjoining semi-detached bungalows. Their dispute concerned a triangular-shaped area of land (‘the Triangle’) outside the front of Mrs Thorpe’s property which, on paper, belonged to the Franks.

Mrs Thorpe purchased her property in 1984. In 1986, on her instruction, Mrs Thorpe’s son, a builder by trade, purchased the required materials and paved the Triangle. Subsequently, Mrs Thorpe regularly parked on the Triangle, power-washed it, and cleared it of litter and weeds.

The Franks purchased their property in 2012. During the case they gave evidence that they had regularly driven over the Triangle to access their property. This was until 2013, when Mrs Thorpe erected a fence adjacent to the Triangle and running between the two properties to stop people crossing it. It was this action which seemingly gave rise to the dispute.

How the Court determined ownership

The Court of Appeal was tasked with considering whether, in circumstances where the land remained open, Mrs Thorpe had demonstrated sufficient control of the land to adversely possess it. The Court decided that Mrs Thorpe was entitled to be registered as the owner of the Triangle.

The Court made a number of key findings, including:

• The estate was open plan and there were, in fact, covenants which restrained the erection of buildings fences and other structures in front of the building line. Historically, the land had been left open.

• The paving of the Triangle with a permanent surface was a clear assertion of possession and that assertion of possession was considered sufficient. This was a clear interference with the rights of the Franks as the owners of the Triangle and asserted a control over the nature of the land’s surface for the future. Mrs Thorpe had created something of permanent and enduring character. The Franks were excluded from the soil below the surface by a permanent covering of Mrs Thorpe’s construction.

• While enclosure of land in dispute by a squatter is an obvious indication of intended possession, it is not an absolute requirement and it is not the only way in which possession of land can be asserted and achieved.

Dealing with future cases of land possession

The act of ripping up an old land surface, covering and replacing it with another of a permanent character may have been sufficient to achieve land ownership for Mrs Thorpe, but this decision by no means guarantees that a claim for adverse possession will succeed by simply paving the land in question.

The Court of Appeal confirmed that the actions which may imply possession in one case, may be wholly inadequate to prove it in another. In each and every case the particular circumstances involved must be closely considered in order to assess the prospects of a successful outcome.

If you require assistance regarding a land ownership dispute, or to seek specialist legal advice from Harrison Drury’s property litigation team, please contact Jody Proudman on 01772 258321.