A claim for adverse possession of a paved forecourt was successful even though the area was not fenced or enclosed.
This was the Court of Appeal’s decision in Thorpe v Frank.
In 1986, Mrs Thorpe, the owner of a semi-detached bungalow, adjusted the surface level of a forecourt in front of her property and repaved it. The owners of the adjoining bungalow, Mr and Mrs Frank, did not object and the paved area was used as an accessway to their property while Mrs Thorpe maintained it and used it for parking. In 2013, she added a fence to enclose it and this led to a dispute over ownership of part of the forecourt which was included in the paper title to the Franks’ bungalow.
Mrs Thorpe claimed to have acquired title to the disputed area by adverse possession. The Court of Appeal had to decide whether this was established as a result of the paving in 1986 and its continued presence in the front of her property.
The Court of Appeal decided that repaving of the forecourt could amount to possession to support a claim for adverse possession.
There was no previous case in which paving alone had been the basis of a claim for adverse possession, but making physical changes to the surface of land was a material factor in several cases. The paving created something which had permanent character and carrying out the resurfacing work with materials of the owner’s own choice was consistent with the actions of an occupying owner.
The court found it significant that the bungalows were on an estate that was historically open plan and, in practice, it was not possible to prevent neighbours from crossing other frontages. The properties were subject to covenants restraining fencing and building work and, together, in the circumstances, these factors meant that there could ‘hardly be a clearer act of possession’ than the paving.
This case is establishes that laying paving can, of itself, be sufficient to found a claim of adverse possession. However whether it will do so in other cases will depend on the facts, the nature of the land and how it is used.
In the case of open land, it is generally impossible to secure every part of the boundary. Fencing or enclosing land is an obvious means of demonstrating possession, but it is not an absolute requirement.
In this case, the relevant acts of adverse possession began in 1986. And so 12 years’ possession had been enjoyed by the time the law in this area changed on 13 October 2003, with the introduction of the Land Registration Act 2002. This meant that the case had to be decided based on the old law, even though it was heard recently.
It is much harder to make a successful application for adverse possession of registered land based on acts of possession since October 2013. The current land registration regime is more favourable to registered proprietors but, to protect itself, a proprietor must make sure that its contact details are kept up to date at the Land Registry.
Thorpe v Frank  EWCA Civ 150