Adverse possession requires factual possession of the land with the necessary intention to possess and without the owner’s consent.
In order to apply for adverse possession there is a need for both elements to be present namely a sufficient degree of physical custody and control (‘factual possession’) and secondly an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (‘intention to possess’) – A Pye (Oxford) Ltd v. Graham [2002] UKHL 30.
.The two elements of adverse possession (factual possession and the intention to possess) are both essential and closely related. If there is strong evidence of the intention to possess then less physical use of the disputed land will be required to establish factual possession.
An intention to possess involves the subjective intention to exercise single and exclusive control in his own right and his conduct must objectively manifest that intention. The intention is to exclude the world at large including the paper title owner so far as is reasonably practicable and so far as the processes of the law will allow.
This does not require a conscious intention to exclude the paper title owner but rather an intention to exclude the whole world from control of the land. It is not necessary to show an intention to ‘own’ the land -Powell v McFarlane (1977) 38 P & CR 452.
Generally, where the squatter has been able to establish factual possession the intention to possess can often be deduced from the acts making up that factual possession.
The intention to possess does not require a “confrontational knowing removal of the true owner from possession”. The meaning of the term “adverse” in this context means that the possession is without the owner’s consent not that it is consciously or even passively hostile.
In the case of Clowes Developments v Walters (2005) EWHC 669 (Ch), it was held that a belief by the squatter that he had the permission of the paper owner to be in possession of the land is fatal to a claim of adverse possession.
Intention alone is not enough. The person’s intention must be clear from the actions he or she has taken so that it would be apparent to the owner that the person is seeking to dispossess him or her.
Acts such as fencing in are very indicative and an intention to possess can often be deduced from these types of acts. However, in order to establish adverse possession the squatter will need to be able to point to an unequivocal act demonstrating that they intended to acquire ownership of the land and not simply to use it.
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”- of Amirtharaja and another v White and another and [2021] EWHC 330 (Ch).
In the case of George Wimpey & Co. Ltd. v. Sohn [1967] Ch 487 it was pointed out that even all-round fencing is not unequivocal if other explanations exist as to why it may well have been placed round the land in question, as, for instance, to protect the ground from incursions of others.
In the case of Amirtharaja and another v White and another and [2021] EWHC 330 (Ch) The claimants claimed title to a passageway between two commercial buildings by reason of adverse possession. On appeal, the court looked at the use of the land necessary to demonstrate an unequivocal intention to possess and whether use consistent with a right of way was sufficient. In this case the existence of a right of way was all important as it rendered acts of enclosure equivocal as to whether they were intended to protect the right of way or to exclude the owner.
With regard to intention to possess Slade J said: “If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.” The court reaffirmed the authority of Littledale v Liverpool College [1900] 1 Ch 19 that the installation of a locked gate by a person with the benefit of an easement of way over the land to which the gate controls access does not evidence the unequivocal intention to possess that land which is necessary to support a claim to adverse possession.
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.
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