Adverse possession is the process by which one person (the squatter) may claim legal title to land owned by another (the owner) through possession of the land without the owner’s permission for a set period of time.
There are two essential elements in establishing legal possession both of which must be shown to exist in order to be able to establish a claim for adverse possession. These are the existence of uninterrupted factual possession for the requisite period of time and the intention to possess the land during that period. In order to establish factual possession you must be able to demonstrate a sufficient degree of physical custody and control of the land. In order to show an intention to possess you must be able to demonstrate an intention to exercise such custody and control on one’s own behalf and for one’s own benefit.
This article deals with acts that may constitute factual possession for adverse possession. The squatter has to show that he has been dealing with the land in question as the owner might have done and that no one else has done so.
The House of Lords in the case of JA Pye (Oxford) Ltd v Graham [2002] UKHL 30 set out that for adverse possession there was no requirement that the possession be ‘hostile’ to that of the title owner or that it ousts the title owner.
The question is simply whether the ‘squatter’ has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner. It is enough that the squatter assumes possession in the ordinary sense of the word.
Factual possession is the physical, effective, single and exclusive control of the land by a person who has and manifests the intention to control the property in their own right.
There must be a sufficient degree of exclusive physical control over the land. 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.
The test that is usually referred to is that the person in possession must have been dealing with the land as an occupying owner might have been expected to deal with it, and nobody else must have done so.
Whatever the nature of the land the squatter must be able to show that he has had exclusive possession of the land without permission of the owner. A good example of factual possession would be if for example you have fenced in the land so that no on else can access it.
However, fencing in is not always necessary. In the case of Thorpe v Frank [2019] EWCA 150 the Court of Appeal held that although fencing the land would have been the clearest way to demonstrate possession, Mrs Thorpe had shown to have acted like an owner of the land in removing the old surface, putting down hardcore and laying paving slabs. Repaving in this case did establish factual possession. Mrs Thorpe’s repaving of the land had asserted an intention to assume sufficient control over it. It did not matter that after the work had been done, the neighbouring owner could continue to pass over the area as before.
Every case is fact sensitive but the case establishes that laying paving alone may suffice to establish factual possession and that enclosing an area of land is not an absolute requirement on which to found a claim for adverse possession. Factual possession requires an appropriate degree of physical control. With open land, absolute physical control is usually not practical and the key question is whether the applicant has been dealing with the land in question as an occupying owner might have been expected to deal with it (and no-one else has done so).
In the case of Port of London Authority v Ashmore [2009] EWHC 954 the claimant claimed adverse possession of the river bed with the tide rising and falling twice a day his boat rested on the river bed twice a day. The Port of London argued that this did not amount to continuous unbroken possession of the bed. The court found in favour of the squatter on the basis that the squatter has been dealing with the land in question as the owner might have.
Establishing a claim for adverse possession can be complicated as there are many grounds that need to be satisfied before the Land Tribunal will allow the claim.
Quinn & Co have expertise in this area of the law. For further information or if you wish to obtain advice about a claim or defend a claim being brought against land for adverse possession please contact Joseph Quinn on 01392 248858 or email 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.