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Adverse Posession


Taken at its most basic level, a claim for ‘Adverse Possession’ is a claim that land that doesn’t belong to you should belong to you, by virtue of the fact you have treated it as being yours for a long period of time.

One of the issues invariably addressed in claims for adverse possession is the extent to which the land in question has been ‘enclosed’. After all, most people who own land seek to enclose it, or at least mark where it ends and other people’s land begins.

In Adverse Possession claims, the issue of ‘enclosure’ is nearly always addressed at some point before a court or tribunal. The person or persons resisting the application for adverse possession will point to any failure to enclose the land as being evidence that the claimant has not ‘excluded the world at large’ or has not exercised sufficient ‘control’ over the land, or has failed to occupy the land as a true owner of it would.

A recent case in the Court of Appeal has though served a timely reminder that all cases will be fact specific, and that not all land will need to be enclosed for an Adverse Possession claim to succeed.

Thorpe v Frank

In 1986 Mrs Thorpe had levelled the surface of an area in front of her home, in Bishopthorpe, York, and then had that area repaved.

The owners of the neighbouring bungalow, Mr & Mrs Frank, did not object, and they subsequently used the land as an access to their bungalow, whilst Mrs Thorpe used it for parking for her own house.

So far so straightforward....

The Dispute

In 2013 however Mrs Thorpe fenced off the paved area, preventing Mr & Mrs Frank from using it as a means of access.

Inevitably that triggered a dispute. Mr & Mrs Frank claimed the land belonged to them - and indeed their title deeds showed this - whereas Mrs Thorpe claimed she had acquired the land by way of Adverse Possession.

The first time this dispute went before the court it was decided in favour of Mrs Thorpe.On appeal however the case was decided in favour of Mr & Mrs Frank.

The case then went on appeal again, this time to the Court of Appeal, where Mrs Thorpe continued her fight.

Court of Appeal

The question the Court of Appeal had to answer was whether Mrs Thorpe’s repaving of the land amounted to sufficient ‘Possession’ of the forecourt.If it did, her claim would succeed.

The court answered the question with a definitive ‘yes’ with all three appeal judges being in agreement.

The court decided that the act of re-paving created a change of ‘permanent character’ which was consistent with an act an ‘occupying owner’ might undertake. The court placed great emphasis on the fact the estate was historically open plan, so it wasn’t possible to prevent other owners from crossing frontages. They also focused on the fact there were restrictive covenants in place preventing owners on the estate from erecting fences or other structures.

In those circumstances the court felt that an owner of land on the estate could hardly have undertaken any acts beyond those Mrs Thorpe had, and that it was therefore hard to imagine circumstances where she could have undertaken any clearer acts of possession than the re-paving.

Thoughts

This case is a fantastic example of why all cases involving adverse possession will be entirely fact specific.Detailed consideration of the situation by a true property dispute specialist, including a site visit, is paramount at an early stage.

Given this case involved 2 appeals from the first instance decision, the costs consequences for Mr and Mrs Frank were no doubt significant; all the more reason to be sure you are standing on good ground before becoming embroiled in a dispute over Adverse Possession.

For further help or advice with regard to any of the issues raised in this article, please contact Daniel Edwards.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.


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