The one with the avaricious neighbour
A recent and high-profile case in the Court of Appeal (Shirley Ann Thorpe v Harold Nobert Frank and Lesley Frank, 2019) has clearly demonstrated the need for landowners to remain alert about the use of their land by avaricious neighbours.
How do you demonstrate adverse possession?
Adverse possession requires a claimant to show that they have been in factual possession (i.e. can show an appropriate degree of physical control) without the property/land owner’s consent, and that they have the ‘intention to possess’ (i.e. to possess the land to the exclusion of all others, including the owner). Generally speaking, the period of adverse possession required is 12 years for unregistered title and 10 years where title is registered.
It is often thought that factual possession requires the land to be enclosed or fenced off.
Brief facts of the case
Mrs Thorpe owned a semi-detached bungalow and in 1986 (some two years after purchase) she decided to undertake works on a forecourt area which formed part of the neighbouring property. The area was repaved and the surface level was altered.
The effect of the works was that it made the forecourt appear as part of the curtilage of Mrs Thorpe’s property, rather than that of her neighbours. No objection was raised by the neighbours and Mrs Thorpe subsequently maintained the area and used it for parking. It was also used by the neighbours as an access way to their property.
In 2013, Mrs Thorpe fenced off the area and applied to Land Registry to become the registered owner as a result of adverse possession. The Franks (the owners of the neighbouring property since 2012) objected to this. They raised various arguments including that repaving the area did not constitute factual possession, an essential element of any adverse possession claim. It was, however, common ground that Mrs Thorpe had the necessary intention to possess.
Court of Appeal decision
Mrs Thorpe was successful in the first-tier tribunal, but the upper tribunal (tax and chancery chamber) overturned that decision. She appealed to the Court of Appeal.
The Court of Appeal found that repaving the forecourt could constitute factual possession. This was significant in that there had not been any previous case law to support this. However, a number of cases indicated that making physical changes to the surface of land could be sufficient.
It was noted that the estate consisted of what were essentially open plan properties and restrictive covenants prevented property owners from fencing their properties. In those circumstances, Mrs Thorpe’s actions appeared to represent the clearest acts of possession of the forecourt area.
What does this mean?
Cases of this nature largely depend on their own individual circumstances. Plainly, the open plan nature of the estate and the existence of restrictive covenants regarding fencing were relevant to the decision.
However, it is worth noting that the laying of paving does constitute sufficient possession and that enclosing the land is not essential.
The decision will be of interest to investors and occupiers of sites that include open land. Acts such as the erection of new fencing by neighbouring landowners around the fringes will usually flag up the existence of potential claims. However, less obvious acts may occur over time which could also prove to be problematic.
It is worth noting that, as the period of adverse possession started in 1986, the application was dealt with under the ‘old’ law which differs from the ‘new’ regime introduced by the Land Registration Act 2002 (and which came into force on 13 October 2003). The practical effect of the new regime makes it much more difficult for an applicant to succeed in acquiring title to the land in question.
If you need advice regarding an adverse possession claim, or with any other property litigation issue, then please contact Jonathan Bouchta by calling 01752 203500 or emailing jonathan.bouchta@GAsolicitors.com.
Jonathan Bouchta, partner