Heaney v Kirkby [2015] UKUT 178 (TCC)

Summary

In the Heaney case, both the First Tier Tribunal (‘FTT’) Judge and the Judge on appeal held that the adverse possessor (Mrs Kirkby) had the necessary factual possession and intention to possess the land in dispute and therefore directed that the Chief Land Registrar give effect to Mrs Kirkby’s application to register the land as if the objection of the paper title owner of the land (Mr Heaney) had not been made.

The key point to note from this decision is that, even if you own the paper title to an area of land, it may be that a different user may have obtained a right to acquire that land by adverse possession prior to you obtaining paper ownership to it. In such circumstances, the adverse possessor’s right would trump the rights of the paper title owner. Accordingly, it is important for both paper title owners and those without title to monitor who is using the land in question and ensure that any written consents are provided for such use. Seek legal advice as soon as possible if you are unsure whether you own an area of land in dispute, or, if you are the paper title owner of the land, once you become aware of regular use (without consent) of such land.

What is adverse possession?

Acquiring land by adverse possession is the process by which a person who is not the legal owner of the land can become the legal owner by possessing the land for a specified period of time. There are two elements to a claim for adverse possession over either registered or unregistered land.

The adverse possessor is required to establish that:

  • it has been in factual possession of the land for the requisite period and that such possession has been uninterrupted; and
  • it had an intention to possess the land during that period of possession.

Where the period of possession relied upon ended before 13 October 2003, the requisite period for possession is 12 years. Where the period of possession relied upon is after 13 October 2003, the period for factual possession is 10 years.

To be ‘in possession,’ there must be a sufficient degree of exclusive physical control over the land. This will depend on the circumstances of each particular case.

In order to comply with the second part of the test, there must be an intention to possess the land in the adverse possessor’s own name, on its own behalf and to the exclusion of all others (including the owner with the paper title), as far as is reasonably practicable.

Therefore, the relevant question to be determined is: whether the person in adverse possession has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the owner’s consent.

The facts

In the Heaney case, the area of land in dispute was situated between the Coach House and the Woodshed and was known as the Verge (the ‘Verge’). Mr Heaney acquired the Woodshed in March 1995 which did not include the Verge. In June 1999 Mrs Kirkby acquired the Coach House with the benefit of planning permission, one condition of which required consent to be obtained for a landscaping scheme to the property and the Verge. However, Mrs Kirkby’s title did not include the Verge. At the time Mrs Kirkby acquired her property, there appeared to be no paper title to the Verge.

Between June and December 1999, Mrs Kirkby carried out considerable redevelopment and refurbishment works to the Verge including the connection of drainage under the Verge and clearing and redecorating the Verge. Further, Mrs Kirkby’s builders used the Verge to gain access to the Coach House and to store building materials.

In February 2012, Mr Heaney acquired title to the Verge from the paper owner.

In April 2012, Mrs Kirkby made an application to the Land Registry for first registration to register title by adverse possession to the Verge.

Mr Heaney opposed Mrs Kirkby’s application on a number of grounds, including:

  • Mrs Kirkby had not enjoyed factual possession of the Verge for the requisite 12 year period, nor had she shown intention to possess the land.
  • Mrs Kirby’s use or occupation of the Verge was in common with others.
  • Mr Heaney carried out occasional acts of maintenance over the Verge.
  • Mr Heaney had acquired the paper title to the Verge in February 2012 and therefore argued that Mrs Kirkby ceased to be in possession of the Verge from that date.

The decision

The FTT Judge concluded that Mrs Kirkby had been in factual possession of the Verge since July 1999 and had demonstrated to the world her intention to incorporate the Verge as part of the Coach House.

Mrs Kirkby had exercised a sufficient degree of exclusive control of the Verge. For instance, during the building works, scaffolding was erected on, and building materials were being stored on the Verge. Therefore, no one else could have used the Verge during the building works and it would have been clear to the world Mrs Kirkby was intending to deal with the land in a way that excluded the world at large.

The FTT Judge held that by February 2012, Mrs Kirkby had barred the title of the paper owner of the Verge pursuant to section 17 of the Limitation Act 1980 (the ‘LA 1980’) and, therefore, Mrs Kirkby remained in actual possession of the Verge on 10 April 2012 when her application for first registration was received at the Land Registry. It was directed that the Chief Land Registrar give effect to Mrs Kirkby’s application as if the objection of Mr Heaney had not been made.

Mr Heaney appealed the FTT Judge’s decision. However, on appeal, it was concluded that theFTT Judge was entitled to reach the decision he did. The Judge on appeal carried out an objective assessment of the circumstances and held that, on a holistic review of the facts, there was sufficient evidence supporting and justifying the FTT Judge’s conclusions that Mrs Kirkby had factual possession and the necessary intention to possess the Verge from July 1999 to mid-February 2012. In those circumstances, Mr Heaney’s title was extinguished by August 2011 under section 17 of the LA 1980.

Our Advice

To avoid a user acquiring a right to adverse possession, it is important for both paper title owners and those without title to monitor who is using the land in question and ensure that any written consents are provided for such use, particularly if the land is being used frequently by a user without consent.

Although Mr Heaney had carried out some maintenance works to the Verge and did have paper title to the Verge from February 2012, the uninterrupted use and control of the Verge over a 12 year period by Mrs Kirkby, juxtaposed with Mrs Kirby’s clear actions showing her intention to possess the Verge, overrode Mr Heaney’s actions and satisfied the test for acquiring land by adverse possession.

In light of the above case, it is clear that if you use an area of land for the requisite period with an intention to possess that area of land, you could obtain a right to acquire the land by adverse possession. Although this is beneficial to adverse possessors, it does create risk for those who have acquired paper title to land as their title could be extinguished under section 17 of the LA 1980 if an adverse possessor has already accrued a right to adverse possession.

Therefore, if you have any concerns about the way other users may be using an area of land, it would be helpful to seek legal advice to assess the circumstances as soon as possible and take steps to attempt to avoid a user obtaining a right to acquire the land by adverse possession.