Shirley Ann Thorpe v (1) Harald Nobert Frank (2) Lesley Frank [2019] EWCA Civ 150

The Court of Appeal has recently found that by paving an area an individual had done enough to establish that she had acquired the land by adverse possession.

The Claimant, Mrs Thorpe claimed to have acquired, by adverse possession, a triangular piece of land in front of her property (no.9) and the adjoining property (No.8), owned by the Defendants, Mr & Mrs Frank.

She applied to the Land Registry for registration as freehold proprietor of that land as part of her title to No.9. In support of her application, she stated that she had had the area repaved in 1986, without objection from the owners of No.8, and had fenced it off in 2013.

The FTT held that Mrs Thorpe had achieved the necessary "factual possession" of the land and established her claim to possessory title. Accordingly the land was registered on the title to No.9.

The UT overturned that decision as there were doubts and uncertainties as to the evidence provided and to the FTT’s findings on the issue of possession after the paving work was completed in 1986.

The Court of Appeal, however, found in favour of Mrs Thorpe; the land in issue had always been open plan in character, and its paving with a permanent surface was an assertion of possession within the Limitation Act 1980. The activities involved in laying the paving constituted a clear interference with the rights of a paper title owner and asserted a momentary and future control of that land.

Key points

  • What constitutes a sufficient degree of exclusive physical control depends on the nature of the land and the manner in which land of that nature is commonly used or enjoyed.
  • In the case of open land, it is generally impossible to secure every part of the boundary so as to prevent intrusion.
  • It is known by a number of authorities that making physical changes to the surface of land is material in determining whether adverse possession has been established and usually a squatter would enclose the land in question to demonstrate possession. This case however, shows that it is not an absolute requirement and is not the only way in which possession can be asserted and achieved.