The defendant appealed against an order for him to surrender possession of land he had claimed by adverse possession. The Council was the registered proprietor. The defendant said he had used the land since 1981 for dumping of motor vehicle parts. The judge had decided that the defendant had not established factual possession for the necessary period, preferring the evidence of aerial photographs.
Held: As to one part of the land, the judge was plainly correct. However, as to another there was evidence of the use of the land by the claimant for the keeping of animals, and that was the most appropriate test. The test applied by the judge of continuity was incorrect. The judge had not addressed and made findings as to certain pieces of evidence.
As to the significance of the fencing: ‘Each case turns on its own particular facts. In a case of adverse possession, where the defendant relies upon the existence of fencing, the Judge will plainly have to consider its significance. In some cases, it will be cogent evidence, perhaps the most cogent evidence, of adverse possession where its effect is wholly to exclude the paper owner, even if it was erected to keep animals inside rather than to exclude people, including the paper owner. In other cases, when considered in the context of the evidence as a whole, fencing may be not be inconsistent with the absence of actual possession and of an intention to possess on the defendant’s part, even where the fencing physically excludes the paper owner.’ As to the latter areas of land, the appeal succeeded, and the case was remitted for reconsideration.
Rix, Etherton, Lewison LJJ
[2011] EWCA Civ 1576
Bailii
Limitation Act 1980 15 Sch 1
England and Wales
Citing:
Cited – Bligh v Martin ChD 1968
The paper owner of the disputed land had grazed cattle on it in winter, and denied that the defendant claiming adverse possession had been in continuous occupation.
Held: Even though the adverse possessor had received rent from the real owner, . .
Cited – Leigh v Jack CA 11-Dec-1879
The plaintiff’s predecessor in title (Mr Leigh) had laid out part of his estate as proposed streets to be known as Grundy Street and Napier Place. He conveyed to the defendant certain land described as being ‘bounded by’ Grundy Street and Napier . .
Cited – Generay Ltd v Containerised Storage Company Ltd CA 23-Mar-2005
. .
Cited – Powell v McFarlane ChD 1977
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘It will be convenient to begin by . .
Cited – Hounslow Borough Council v Minchington CA 1997
There may be circumstances where a squatter is deemed to be in actual possession of the land (a strip of rough land at the bottom of the appellant’s garden) providing he is the only person in effective control of it despite the fact that the true . .
Cited – Michael Batt Charitable Trust v Adams ChD 2001
The court looked at what was required to establish adverse possession in a claim for land. Laddie J said: ‘The only factor that appears, at first sight, to point in the direction to exclude anyone, is the fact that Mr Higgs maintained and repaired . .
Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – Inglewood Investments Company Ltd v Baker CA 8-Nov-2002
The court considered a claim for the adverse possesion of land.
Held: Dyson LJ said: ‘to establish a claim of adverse possession for the requisite period of 12 years it is necessary to establish: (1) actual possession; (2) an intention to . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 05 December 2021; Ref: scu.450103