Adverse possession requires a squatter to show factual possession of land for the requisite period without the owner’s consent and with the necessary intention to possess.
The squatter needs to show that during the period of occupation by him he exercised an appropriate degree of physical control over the land acting like an occupying owner of the land would have acted.
While the squatter does not need to show that he completely ousted the paper owner he must show that he has acted in a way that is manifestly inconsistent with the title of the owner.
The squatter’s intention must be: “sufficiently clear so that the owner, if present at the land, would clearly appreciate that the claimant is not merely a persistent trespasser, but is actually seeking to dispossess him”- Amirtharaja and another v White and another [2021] EWHC 330 (Ch).
With open land, absolute physical control is usually not practical so the courts will look at whether the squatter has been dealing with the land as an occupying owner might have been expected to deal with it and no-one else has done so.
In the case of Thorpe v Frank and another [2019] EWCA Civ 150 it was said that what constitutes a sufficient degree of physical control depends on the nature of the land and the manner in which land of that nature is commonly used or enjoyed. It is not always necessary to have fenced in or enclosed the land in question to keep others out. In this case it was held that the repaving of the land was enough to demonstrate sufficient physical control over the land to establish a claim for adverse possession.
The fact that the squatter does not prevent those with rights of way over the land from exercising those rights is not inconsistent with the squatter’s claim for adverse possession and will not defeat the claim for adverse possession.
However, if the squatter himself has a right of way or some other right himself to use the land in question then it will be harder to prove factual possession as he must show that his acts of possession are manifestly inconsistent and exceed the rights which he has over the land. If the squatter cannot do so then it may be said that the intention with which he did the alleged acts of possession were equivocal.
This is a complex area of the law and legal advice should be sought before an application is made.
Should the owner object to an adverse possession application and the matter is referred to the First Tier Tribunal there will be cost implications. It is best to seek legal advice before making any application.
Quinn & Co have experience of dealing with adverse possession claims. If you wish to discuss your case and see how we can help you please contact Joseph Quinn on 01392 248858 or email us at mail@quinnlaw.co.uk or fill in our contact form and we will call you as soon as possible.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such.