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Repaving a Forecourt Amounts to Adverse Possession

on Friday, 24 May 2019.

In a recent case, the Court of Appeal has clarified what may count as 'adverse possession' for the purposes of an adverse possession claim.

Background

To claim title to land by adverse possession, a person needs to show:

  • that they have had uninterrupted factual possession of the land for the requisite period (usually 10 or 12 years, but sometimes longer)
  • that they have had an intention to possess the land during that period

The Case - Thorpe v Frank and another [2019] EWCA Civ 150

In 1989, the owner of a house (No.9) repaved the surface area of a triangle of land forming part of the forecourt of the neighbouring property without any permission or objection from the owner of the neighbouring property. As a result of the repaving, the triangle appears to be a part of the land belonging to No.9.

In 2013, the owner of No.9 fenced off the triangle of land and later applied to be registered as the owner.

The owners of the neighbouring land objected to the claim. The neighbours argued that they had continued to use the triangle of land as an accessway since 1989, and that the repaving did not establish possession.

The Decision

It was a common ground that the owner of No.9 had the necessary intention to possess the triangle of land. The case therefore turned on whether or not the paving showed sufficient factual possession of the land.

Enclosing land (for example, by fencing it in) is one of the clearest signs of factual possession. However, it is not always necessary and not always sufficient. What counts as factual possession will depend upon the nature of the land in question.

In the present case, properties were subject to covenants which prohibited fencing, and so enclosing the land was not an option in this case. As to the neighbours' use of the land as an accessway, the court considered that the open plan nature of the estate was significant , as it would not have been possible to prevent neighbours from crossing each other's frontages. In the circumstances there could not have been a clearer act of factual possession than the repaving.

The owner of No.9 was therefore successful in her claim for adverse possession.

Consideration

Although this case is specific to its facts, it establishes that an act such as laying paving is a clear act of possession and may alone be sufficient to establish factual possession, notwithstanding a lack of enclosure.


If you are considering bringing a claim in adverse possession, please contact Philip Sheppard in our Property Litigation team on 0117 314 5621.