Establishing legal ownership by way of adverse possession- Paving the way

What is adverse possession?

This is when a person who doesn’t have the ownership rights over a land acquires legal title because they have been continually living on the land (previously 12 years but since October 2003 is now 10 years) – sometimes known as squatters’ rights.

The Test

In order to successfully establish legal ownership by way of adverse possession you have to show:

1. Factual possession of the land
2. An intention to possess the land (to the exclusion of others including the legal owner)
3. Such possession was without the legal owner’s consent

Factual Possession

Factual Possession was defined in the case of Powell v McFarlane (1977) as:

“Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. 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. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.”

This was elaborated in the very important case of Pye v Graham (2002) which confirmed that factual possession meant an ‘appropriate degree of physical control’ and could be demonstrated by ‘using the land in a way which a full owner would and in such a way that the owner is excluded.’

In that case it was held that factual possession was made out by the separating hedges and that there was a locked gate on one of the roads.

This is consistent with the earlier guidance in Seddon v Smith (1877) stating ‘enclosure is the strongest possible evidence of adverse possession.’

The Latest Test: Thorpe v Frank (2019)

This case was decided by the Court of Appeal in February 2019. In this case, it was held that re-paving of an area in 1986 and then later fencing in 2013 was sufficient to establish factual possession. Whilst, paving was not ‘enclosing’ of the land, it was a permanent physical change to the surface of otherwise open land and sufficient to grant legal ownership.

Whilst it seems this was the first ever case where paving alone was sufficient, there was in fact a previous case in 2014; Gayadeen v A-G of Trinidad and Tobago, although evidently this was a Privy Council decision. The claimants used compacted gravel and later concrete to make a car park which they tried to exclude for their own customers by also having signage (but admittedly as it was not enclosed third parties would sometimes park their own vehicles on the area). Despite this, it was held that this was still sufficient to prove factual possession and the claim for adverse possession was made out.

Thorpe is actually in line with previous decisions which have gradually moved away from enclosure being the only way to establish factual possession and re-confirming that it is actually only one way (of many) and much will depend on the nature of the land itself.