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Recognising When You Can Claim Adverse Possession

20th November, 2019

Adverse possession has posed a threat to land owners for a number of years.

In the case of Thorpe v Frank [2019] EWCA Civ 150, the Courts have considered whether repaving an area of land could be a sufficient claim for adverse possession.

Applicants (often known as squatters) have always posed a danger to land owners.

The Land Registration Act 2002 was introduced in order to provide a stricter regime for adverse possession, and specifically related to registered land. Its purpose is to make it harder for occupants to claim adverse possession of registered land.

To claim adverse possession, an occupier must satisfy the following three requirements:

  1. Factual possession of the land

The occupant must have exclusive possession of the land. If the land is unregistered, then the occupant must have possession for 12 years, and if the land is registered, then the occupant can claim adverse possession after 10 years.

The occupant must also have “physical control” of the land. This will usually mean fencing off the land or changing the locks to a building. They are therefore keeping others from accessing the land and/or have taken control of the land.

 

  1. Have necessary intention to possess the land

This can be demonstrated by spending money or improving the land. Examples would include maintaining the land or erecting buildings on the land.

 

  1. Do not have the owner’s consent to occupy the land

If the occupier has the owner’s consent to occupy the land, then they cannot claim adverse possession.

 

An application to claim adverse possession can be a lengthy process. Applicants must satisfy the three requirements and this often proves to be the biggest stumbling block for claimants.

However, the case of Thorpe v Frank [2019] EWCA Civ 150 has demonstrated that paving an area of land can be sufficient to establish factual possession of land. It did not matter that, after the paving had been laid, the owner could continue to pass and repass over the area as before.

Laying down the paving was seen by the Court as a clear act of possession. The case establishes that laying down paving alone can prove to be sufficient to establish possession.

This case will act as a reminder to both land owners and developers to be wary of anyone who may be occupying their land, especially as it has set a new example of how an occupier can potentially obtain factual possession of land. This does of course depend upon the nature of the land and how it is being used.

If nothing else, the case of Thorpe v Frank [2019] EWCA Civ 150 will likely pave the way for other interesting adverse possession claims in the future.

Joshua Williams

Real Estate

Solicitor
Email: [email protected]
Tel: 01244 405 524

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