Your Place or Mine?

24th May 2019 | Asha Ngai | Residential Property

Thankfully, the question of proving possession of property does not often arise.  When it does, it is always interesting to see the approach taken by the courts on adverse possession. Adverse possession arises where a person who is not the... Read more

Thankfully, the question of proving possession of property does not often arise.  When it does, it is always interesting to see the approach taken by the courts on adverse possession.

Adverse possession arises where a person who is not the legal owner to a  property or piece of land can make a valid claim to it by simply taking possession for a specific period of time.

A recent example is the case of Thorpe v Frank (2019) which involved a claim for adverse possession of a paved forecourt.

Mrs Thorpe, having bought the semi-detached property in 1984, adjusted the level of a forecourt in front of the house and repaved it in 1986.  She stated that the area in front of her house was paved with concrete slabbing by the previous owner, in a rectangular shape, believing the land to be hers.  When the property was sold to Mrs Thorpe, she claimed no mention was made to her of any other access across the land, nor was she informed that the land belonged to the neighbours Mr and Mrs Franks.  No objections were raised by Mr and Mrs Frank until Mrs Thorpe decided to enclose the paved area with a fence in 2013.    The paved area was previously used as an accessway to the Frank’s property while Mrs Thorpe maintained it and used it for parking.  The Court of Appeal had to decide whether Mrs Thorpe acquired the paved area by way of adverse possession nearly 30 years ago.

The Court of Appeal decided that adverse possession could be claimed since the paving was a permanent character which Mrs Thorpe paved of her own accord and so her actions were consistent with that of an occupying owner and she had taken exclusive possession over the forecourt.  The fact that the fence did not go up until 2013, it appears, is not relevant to establishing possession.  Fencing off land is an obvious means of showing possession but in this case making physical changes to the surface of the land was a material factor.  Some may argue that it was somewhat surprising of the Franks to claim possession since they were quite happy for Mrs Thorpe to spend money on the paving and allowed her to maintain it for over  three decades!

The relevant act of possession arose in 1986 and so 12 years’ possession had been established by the time the law in this area changed, in October 2003.  It is now much more cumbersome to prove adverse possession due to the changes made by the Land Registration Act 2002.

The case is relevant for developers when purchasing open areas of land where the signs of encroachment are not always evident.  Equally, it is important for land and property owners to protect themselves by making sure that their contact details are correct at the Land Registry and that they register for their alert system.  Please refer to our helpful guide on registering with the land registry alert system . 

To find out more, please contact Asha Ngai.