Posted on 25 Feb 2019
Adverse possession - is repaving the land sufficient?
Adverse possession is a legal principle under which a person who is not the legal owner of the land can acquire a valid title to it, by simply taking possession of that land for a specific period of time.
However, the claimant must establish a sufficient degree of 'exclusive physical control' over the land where adverse possession is claimed. The requirement of what constitutes a sufficient degree of 'exclusive physical control' has evolved over time. It has been a common misconception that in order to show 'exclusive physical control' it was necessary to fence land over which adverse possession was claimed. However the Court of Appeal in the case of Thorpe v Frank and another  has put an end to this common misconception by holding that repaving a forecourt was sufficient to establish the necessary physical control for the purpose of claiming adverse possession.
In Thorpe v Frank and another  the Applicant claimed to have acquired, by adverse possession, a part of land owned by her neighbour, the Respondent. The Applicant and the Respondent's properties had adjoining open forecourts that contained a small triangular plot of land over which the dispute arose. The land in question was registered as part of the Respondent's title. However, the Applicant had the triangular land repaved in 1989 without any objections from the Respondent. In 2013 the Applicant erected a fence and applied to be registered as an owner of the triangular land.
The Upper Tribunal originally concluded that the Applicant did not have the 'exclusive physical control' of the land until she erected the fence. Repaving the Land in 1986 was a mere trespass by the Applicant which was not sufficient to evidence adverse possession. The Court of Appeal reversed the Upper Tribunal's decision and held that the events that took place in 1989 were sufficient to allow the Applicant's adverse possession claim to succeed. Repaving the land constituted a clear act of factual possession.
This case demonstrates that the signs of encroachment are not always obvious. This is especially relevant when purchasing open land for development. It is important to examine the land carefully and discuss with your legal advisor of any signs that may give rise to a reasonable inference of possible intrusion by a third party.