Paving on open land can be enough for adverse possession

In a recent judgment, the Court of Appeal (the “CA”) clarified the law about what it means to establish factual possession of another’s land in the context of adverse possession claims (Shirley Ann Thorpe v. Harold Nobert Frank and Lesley Frank).

Along with having the necessary intention to possess the land in question for the requisite period, the person claiming ownership of the land by adverse possession must also have factual possession of it in order to successfully acquire it from its paper owner.

Summary of the decision

In short, the CA confirmed that factual possession signifies an appropriate degree of physical control over the land, but emphasised the acts that would constitute the sufficient degree of exclusive physical control must depend on the circumstances, and in particular the nature of the land in question and how it used and enjoyed.

It held that, whilst enclosure of land – for example, by putting up a fence – is a clear act in which the person claiming adverse possession can take physical control of it, this is not an absolute requirement. In context of open land, it is possible to establish factual possession by making physical changes to the surface of that land only – for example, by repaving a driveway.

Facts

Mrs Thorpe owned a semi-detached bungalow in York. Mr and Mrs Frank owned the adjoining bungalow.

The two bungalows each had front driveways. Mrs Thorpe claimed to have acquired part of the driveway outside her bungalow (the “Disputed Land”) –which was within the paper title to the Franks’ land – by adverse possession.

In support of her claim, she provided evidence that in 1986 she repaved the driveway (including the Disputed Land) outside her bungalow with new tiles and brick edging of a permanent character and since then had regularly cleaned it and parked her car on it. This evidence was accepted by the First Tier Tribunal (the “FTT”) who found Mrs Thorpe had achieved the necessary factual possession of the Disputed Land.

The Franks appealed the FTT’s decision to the Upper Tribunal (Lands Chamber) (the “UT”), who found in their favour. It was accepted by the parties that Mrs Thorpe had the necessary intention to possess the Disputed Land. However, the UT determined that Mrs Thorpe’s repaving of the driveway constituted a trespass over the Disputed Land for the duration of the repaving works, and thereafter Mrs Thorpe was not in possession. She had therefore failed to establish the necessary factual possession of the Dispute Land, and she appealed.

The Court of Appeal’s decision

Reversing the UT’s decision, the CA held that Mrs Thorpe had achieved factual possession of the Disputed Land.

The CA confirmed that what acts constitute a sufficient degree of physical control depend on the nature of the land and the manner in which the land is commonly used. Crucially, given the Disputed Land was part of an open driveway, Mrs Thorpe’s repaving of it with permanent new tiles was an act which was capable of her taking sufficient physical control of it. The repaving was a clear interference with the Franks’ ownership of the Disputed Land. It was not a temporary trespass – it gave the appearance that the whole of her driveway (including the Disputed Land) was adjacent to her bungalow. Mrs Thorpe thereby achieved factual possession of the Disputed Land, and it mattered not that others were not excluded from it.

This case applies in England & Wales only and does not apply in Scotland.