Smith v Frankland and another [2015] UKUT 294 (TCC) (29 May 2015): Application of the Law of Adverse Possession

From time to time circumstances arise where an occupier of land, who is not the paper owner, has, for a sufficient period of time, due to actual occupation of the land, acquired a claim of ownership to that land.  As the law currently stands, the Limitation Act 1980 may be applied by an occupier of unregistered land once a period of 12 years has passed.  This means that the paper owner’s title to the land is forfeited in favour of the occupier.  In the case of registered land, the Land Registration Act 2002 sets out the mechanism by which an occupier may acquire the land from a registered owner. Whilst the regime for unregistered land requires a 12 year period, the Land Registration Act 2002 requires just 10 years of occupation.

Adverse possession broadly means the occupation of another’s land for the requisite period as if the land occupied was owned by that occupier.  Any claimant of adverse possession must establish, amongst other matters, that it has been in uninterrupted actual possession of the land with exclusive control and intended to do so for the requisite period.

The case of Jones v Williams (1837) determined that if there is such ‘common character of locality’ between two areas of land, and adverse possession had been proved for one, then it follows that all/both parts of the land may be deemed as owned by that claimant claiming adverse possession.  Elements such as boundaries and land use will be persuasive in deciding whether ‘common character of locality’ exists.

The above case concerned a garage and neighbouring land.  The claim for adverse possession of the garage was not in contention and the court was only required to address the issue of the adjacent land. The claimant had, for some time, not only used the garage but also maintained the adjacent land to allow a third party (upon licence by the claimant) to park a car upon it.  The court was required to decide whether there was a ‘common character of locality’ between that garage and the adjacent land.  The claimant argued that the occupation of the land was ‘inherently linked to the garage itself’ so the claimant was entitled to have the land registered in its name.  The court commented that the adjacent land was open, the boundaries not delineated and the parking licence was not linked to the garage but a residence some distance away from the garage.  It was found that the purpose of the occupation was entirely different to the garage that had been proven to be adversely possessed and the claim for adverse possession was not successful.

For further information regarding this topic or any other property and construction matter, please contact Nicky Cleightonhills, Associate or the Edwin Coe Property team.

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