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Adverse possession and control
We like being in control. As lawyers, we want to be in control. What is more, sometimes the law requires our clients to be in control. And the law determines if a person is truly in control. In the legal context instances where control may be an issue include the control of companies and the control of vehicles. In the field of property, the concept of control rears its head in connection with adverse possession.
Pye v Graham [2003] 1 AC 419, HL @ [43] tells us that: (1) “factual possession”, connotes “a sufficient degree of occupation or physical control”; (2) it must be coupled with an “intention to possess” which is “an intention to exercise such custody and control on one’s own behalf and for one’s own benefit.”
But in this context what exactly is control? What does it entail? What is enough?
Here the guidance is limited. In the following paragraph [41] in Pye , reference is made to “an appropriate degree of physical control”. We have traded “appropriate” for “sufficient”. But that does not really advance matters.
Greater assistance is provided by the statement in relation to factual possession (taken from Powell v McFarlane (1977) 38 P&CR 452 @ 470/1), approved in Pye @ [41]:
It must be a single and exclusive possession , though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both in in possession of the land at the same time. … broadly, I think what must be shown … is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with and that no-one else has done so.
Now we know, therefore, that control in this context means that the enjoyment of the land must have been exclusive to the claimant.
What is more, in Pye Lord Hutton spoke @ [76] of “ using the land in way in which a full owner would and in such a way that the owner is excluded ”.
Indeed, when one couples this with the fact that: (1) The required intention to possess is an “intention, in one’s own name and on one’s own behalf, to exclude the world at large , including the owner with the paper title …, so far as is reasonably practicable and so far as the processes of the law will allow.”: Pye @ [43] (2) The law obliges a squatter not only to have such intention to possess but also to manifest such intention, i.e. to signify it by his actions (so as to make it obvious to a person visiting the land that he intends to exclude the owner as best he can): Lambeth LBC v Blackburn (2001) 82 P&CR 494, 504, approved in Pye @ [79]. (3) Actions speak louder than words, for in general intent is to be inferred from the acts which have taken place: Pye @ [70] & [76], it appears that, in turn, physical exclusion is seemingly a key to exclusivity and, in turn, to effective and adequate control and so possession.
Now, certainly in the paradigm case of adverse possession of a residential property or, as in Pye itself, several acres of agricultural land, it is easy to conceive why there is a direct focus on exclusion as demonstrating the all-important control. Nothing I say should be taken as suggestion that physical exclusion is not a weighty factor. Indeed, it may often be determinative. This reflects: (i) what Cockburn CJ said as long ago as 1877 in Seddon v Smith (1877) 36 LT 168, 169: “Enclosure is the strongest possible evidence of adverse possession”; (ii) the attitude of Russell LJ in George Wimpey v Sohn [1967] Ch 487, 511 “the most cogent evidence”; and (iii) the views of Slade J in Powell’s case: “So too is the locking or blocking of the only means of access.”
years it had been put to no use by the paper owner. Yet a claim for adverse possession failed, absent some affirmative evidence consistent with an attempt to exclude the true owner. (2) Ellett-Brown v Tallishire Ltd (1990) 29/3, CA. A vacant strip of land 4’ wide (and 470’ long) beside a drive separated two properties. Possibly thousands of daffodils had been planted by the squatter on the strip. Lloyd LJ said that could not be regarded as an unequivocal act of factual possession. He said they had been planted to adorn and beautify the squatter’s property. No doubt that was so, but was such use really not precisely of the very type which an owner would make of the land?
There are thus traces of a school of thought that certain so-called ‘trivial’ activities can never be possessory, whatever the context.
It is arguable, though, that such a view loses sight of the fact that there is no ‘one size fits all’. As was said in Pye , in a passage (within [41]) not quoted above:
“ The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed .”
There we have it: context is everything.
This reflects the qualification which had been uttered by Cockburn LJ to his dictum mentioned earlier, namely, “but it [enclosure] is not indispensable”.
It follows, I suggest, that the correct approach is much more nuanced than is sometimes suggested. Physical exclusion is important but it is not the be-all and end-all. A claim to adverse possession can succeed even without complete exclusion being proved by the squatter.
The point was acknowledged by Chadwick LJ in the little-known case of Chapman v Godinn Properties Ltd [2005] EWCA Civ 941. It concerned a claim to adverse possession of a strip of land which comprised two entrances to a private driveway and, between them, a roadside grass verge and bank. The claim was based on inter alia acts of cutting, planting, nurturing the land and sweeping leaves. It succeeded. He said:
[22] It is not land in relation to which the owner, or the person in possession, could be expected to do more than tidy up and to maintain the two entrances. Keeping the land tidy involves mowing the grass and cutting back the shrubs from time to time. Maintaining the entrances no doubt involves filling in the holes and some maintenance work.
He thus recognised the importance of context. Given its nature, the land had realistically been the subject of only limited activity by the squatter.
Chadwick LJ continued:
[27] We were referred to the observations of Slade LJ in Buckinghamshire County Council v Moran , in particular to the passage at page 642, where he said this: “If the defendant had stopped short of placing a new lock and chain on the gate, I might perhaps have felt able to accept these submissions.” The submissions made on that appeal were that the defendant was, in effect, doing nothing which would have indicated to the world an intention to exclude land for which the paper owner, the County Council, had no current use. On the facts of that case, it might well have been that, but for the placing of a new lock and chain on the gate, the decision would have gone the other way. But Slade LJ did not say that that would have been the result. As often happens on an appeal, where this court identifies a determinative fact, the court will decide the point before it on the basis of that fact; without deciding what it would have done if the fact had not been established. The court's decision is no guide as to what would have happened if the court had been deciding the appeal on different facts which did not include that determinative fact. [28] But each case must turn on its own facts. In a case of this nature, the court must ask itself what it is that would be expected of somebody in possession of land of this kind. What would such a person be expected to be doing in order to demonstrate his intention to exclude the world at large. The judge held that these claimants, Mr and Mrs Chapman, were doing all that they could be expected to do, in relation to this land, to make their intentions unambiguously clear to the world at large …
The appellants won their adverse possession claim. Lord Hodge said:
The other requirement is factual possession which connotes a sufficient degree of physical control … What constitutes an appropriate degree of physical control must depend on the circumstances. In this case the Rambarans and the appellants would have wished members of the public to have access to their car park … in order to provide custom to their business. There could have been no question of fencing off the car park if they were to attract such custom. They dealt with the car park as an occupying owner might have been expected to deal with it. No one who parked there temporarily without their consent dealt with the car park in that way. Such ephemeral use of part of the car park by a driver of a vehicle did not amount to factual possession and did not manifest any intention to possess.
The decision provides welcome confirmation that: (1) One must always look to the realities of the position. Whereas, in the case of a dwelling, one would readily expect, and likely insist on, total exclusion of the world at large if a conclusion of due control and possession is to be reached, the same will not inevitably be so in materially different factual scenarios. (2) Allied to that, the mere fact that a claimant has not achieved a state of total exclusion of all others from the land is not necessarily an insuperable bar to an adverse possession claim, provided always that activities of any others on the ground are not themselves sufficient to amount to possession in their own right (for there cannot be two rival candidates in possession at the same time).
While every case will turn on its own facts, Gayadeen is, I suggest, a recent reminder, in line with Chapman , that total control and exclusivity is not always essential.
For further modern examples that it is important to have particular regard to the nature of the land in question, and that even open areas of land can be adversely possessed, one can usefully refer to: (1) Greenmanor Limited v Pilford [2012] EWCA Civ 756, a case of adverse possession of land within a compound in which the Court of Appeal stated in terms that it is not
necessary to establish that the land was completely enclosed preventing anyone from accessing the land: all that is required is to show acts that are sufficient to amount to physical custody and control, bearing in mind the nature of the land. [ & 27] (2) Dyer v Terry [2013] EWHC 209 (Ch). A deputy Land Registry adjudicator had been entitled to hold that an adverse possession claim succeeded in respect of two areas of land. One such area was a cultivated flower bed immediately in front of a house. The other was a grassed area, in part laid to hardcore, used for parking. Both abutted a road owned by the paper owner. Despite the absence of full control, as opposed to sole enjoyment, possession was established. (3) Heaney v Kirkby [2015] UKUT 178 (UT (Tax)). A similar case where the land, a roadside verge, could not reasonably be fenced. This did not matter: fencing is only one way of exercising physical control; it need not be the only way: [40]. In that case the requisite control was demonstrated by a number of activities on the verge such as the creation of hardstanding for parking, the laying of topsoil, the planting of a flower border, looking after the lawn and shrubs. [16, 21 & 47] All in all, these amounted to use and possession as, amongst other things, a garden. [49] What is more, the claim succeeded notwithstanding that the verge had been used by others occasionally for parking, manoeuvring of cars and as a passing place. [48] It was held that this use by others, which had been argued to render the squatter’s enjoyment use in common [18], did not prevent Mrs Kirkby from exercising a degree of control that was appropriate in all the circumstances. [49]
All this just goes to show that control is a nebulous concept. We can be in control, even if we are not fully so.
There might though be a sting in the tail for the unwary. The same proprietor who displayed such lack of vigilance which allowed the squatter free use of his land for two decades could conceivably simply rest on his laurels after the decision in his favour and allow the squatter to remain in situ. Job done, after all. There might perhaps be some desultory without prejudice negotiations, coupled with an occasional open letter proclaiming the defeated applicant’s unlawful status on the land and threatening repossession but, despite that, no real effective action (be it possession proceedings or actually reaching a concluded agreement with the squatter to regularise the occupation, thereby rendering it permissive). This would be consistent with the previous lackadaisical approach. There is no guarantee that one round of litigation necessarily makes a proprietor keen on a follow-up confrontation.
The sting, as I daresay you all know, lies in Sch.6, para.6. This provides:
(1) Where a person’s application under paragraph 1 is rejected, he may make a further application to be registered as the proprietor of the estate if he is in adverse possession of the estate from the date of the application until the last day of the period of two years beginning with the date of its rejection.
There are, as ever, exceptions to this basic entitlement. In summary, a para. application cannot be made if there are pending possession proceedings or a judgment for possession in the last two years: para.6(2). However, in a case of continued inaction, these exceptions will not be engaged and so, if two years have passed since the rejection of the Sch.6, para.1 application with no change on the ground, the proprietor will be vulnerable to a para.6 application.
What is more, if validly made, a para.6 application will strike a fatal blow because para.7 stipulates that “if a person makes an application under paragraph 6, he is entitled to be entered in the register as the new proprietor of the estate.” The previous success will count for nothing; the landowner will wave goodbye to his land.
This reflects the policy of the 2002 Act, which is that a registered proprietor who has survived a shot across the bows should take active steps to sort things out; he may not sit on his hands indefinitely.
That is probably not news to you. But what is more interesting is the precise reach of Sch.6, para.6. Recall its opening words:
“ Where a person’s application under paragraph 1 is rejected …”
That is the central precondition for Sch.6, para.6 to be engaged. But the wholly general statement is not much of a guide. What exactly does “rejected” mean? When is para. is play? Is it just in the scenario which I have described? Or could it rear its head more widely?
The only instances of “rejected” and “rejection” in the 2002 Act are those in Sch.6, para.6. So there is little to go on. That said, it is not language redolent of that encountered in the standard judicial process: (1) Disputed Sch.6 applications are referred by HMLR to the First-tier Tribunal, Property Chamber (formerly the Adjudicator to HMLR) pursuant to s.73(7) of the 2002 Act for determination. The Tribunal’s procedure rules (SI 2013/1169) envisage that, in the case of a substantive decision by the Tribunal, the registrar will be directed to give effect to or “ cancel ” (as the case may be) the application: r.40(2). The word “reject” does not feature in the Rules, except in r.40(3) which provides that a direction to the registrar may include a direction “to reject any future application of a specified kind by a named party to the proceedings”. The use of different language might suggest that: (a) rejection is something effected by HMLR
The phraseology of rule 16(3) suggests, in line with what might be drawn from the Tribunal’s procedural rules, that a distinction is to be drawn between rejection and cancellation, with rejection being essentially a refusal by HMLR to entertain an application in the first place and, by contrast, cancellation being what can happen to an application which has got off the ground and been accepted into the system but which later fails.
Yet if it be the case that “rejection” in Sch.6, para.6 means (only), or even embraces as one possibility, rejection by the registrar of a purported Sch.6, para.1 application which (per r.16(3)) is substantially defective (e.g. because the wrong form is used or the supporting evidence plainly does not disclose at least 10 years’ possession), curious results follow: (1) If such rejection is the sole circumstance fitting the Sch.6, para.6 bill, it entails that – contrary to received wisdom – Sch.6, para.6 does not after all provide a gateway for a second application following the dismissal/cancellation of a properly grounded Sch.6, para.1 application (albeit one which could not meet any para.5 condition). That would be most surprising. (2) Even if such rejection is but one of several possible types of qualifying “rejection” (with “rejection” in Sch.6, para.6 not being a term of art but bearing its general meaning), it is unlikely that (in the case under discussion) the registered proprietor will ever learn of the original application – since its up- front rejection will surely mean that HMLR will never notifies the proprietor of it, in which case he will receive no opportunity to take possession proceedings within the following two years and so may face an unheralded Sch.6, para.6 out of the blue to which he has no answer. That would be most unsatisfactory.
These considerations indicate that, as a matter of policy, “rejection” in Sch.6, para. cannot sensibly be given a meaning which is limited to, or for that matter even includes, a peremptory rejection by the registrar.
However, on what basis can this result be reached? And, even if such a purposive restriction is appropriate, quite where is the line to be drawn? What of the following candidates? Which counts for the purposes of Sch.6, para.6? (1) An application which is accepted by HMLR but which is subsequently cancelled for technical issues, e.g. for failure to comply with requisitions. (2) An application which is accepted by HMLR but thereafter cancelled because the registrar concludes (e.g. following a site survey) that there is no viable claim. (3) An application which is accepted and referred to the Tribunal which later directs the registrar to cancel the application because it strikes out the proceedings for procedural default: Tribunal Rules, r.9. (4) An application which is accepted and referred to the Tribunal which in turn directs the registrar to cancel the application because the applicant has failed to establish 10 years’ adverse possession. (5) An application which is accepted and referred to the Tribunal and which fails not for want of proof of adverse possession but only because of the non-satisfaction of a para.5 condition.
Once one moves away from the specific notion of “rejection” found in the Rules and the Tribunal’s procedural rules to a more general notion of dismissal at large, there is no ready means of discriminating between these possibilities: each can fairly be said to be a case of rejection. How is the choice to made?
If all of the above scenarios fall within Sch.6, para.6, the consequence is that (as regards the first to fourth cases), a person may be eligible to apply under Sch.6, para.6 despite
(3) The third was made in November 2012, hard on the heels of the High Court decision. It was expressed to be cancelled by HMLR on the basis that no claim had been made out on the facts averred in the supporting statutory declarations. [69-71] (4) The fourth came in February 2014 and was that before the Tribunal. [3 & 72]
The Tribunal had to decide whether, given that history, the (fourth) application was a Sch.6, para.1 application or a Sch.6, para.6 application. [73.2]
Curiously, although usually it would suit a squatter to assert that the application is a Sch.6, para.6 application (thereby sidestepping the need to fulfil a para.5 condition) and it would be best for the proprietor to bring the case within Sch.6, para.1, the arguments in Gill were in fact the other way round. This goes show just how topsy-turvy litigation can be at times! (There is an explanation: because of the ASBI Mr Gill had not been in possession of the land since the rejection of the third application [78].)
The argument in Gill was that Sch.6, para.6 prescribes a mandatory different route from Sch.6, para.1 and that, if a para.1 application is lost, any later application can only be a para.6 application. Against that it was contended that para.6 is permissive, not prohibitory; it does not preclude a series of applications under para.1. [79]
The Tribunal determined that para.6 applies in a case where the squatter makes out 10 years’ adverse possession but his para.1 application fails because of an inability to satisfy one of the para.5 conditions and in consequence HMLR “formally rejects the application”. In that scenario a para.6 application can be made 2 years later. [80]
It is implicit, although not express, in the decision that this is the only scenario in which para.6 is potentially engaged. If this be correct, it provides the answer to the conundrum posed above.
However, with respect, the reasoning is both thin and suspect.
The Judge seems to have categorised all 3 previous applications made by Mr Gill as cancelled and not rejected. [81] That may well be a correct use of the recognised terminology on the facts.
But more troubling is the Judge’s statement that a para.1 application which fails for want of meeting a para.5 condition is then formally “rejected” by HMLR [80] – so leaving the door open to a future para.6 application. This, at least as it is framed, is questionable. As explained above, “rejection” appears to occur at the outset (“on delivery”, to cite r.16(3)) whereas “cancellation” comes later, e.g. pursuant to a Tribunal ruling. It thus seems that the Judge elided or confused “rejection” and “cancellation” in reaching the result he did. He did not fully engage with the issue of categorisation.
Also, the decision appears to contain an internal inconsistency or difficulty. The Judge accepted the submission of counsel for Mr Gill that if HMLR rejected an application on grounds without a formal determination, e.g. for use of the wrong form or non-payment of the fee (i.e. a case of true rejection, rather than cancellation), the squatter would not have to wait 2 years to go again under para.6 but could make a renewed para. application.^1 [79 & 80] That may indeed be so: para.6 can be seen as providing an alternative to para.1, with an applicant able to choose which of two potentially available routes he wishes to take (where 2 years has elapsed since the original rejection) (although ordinarily it would be hard to imagine the para.6 course not being followed, if available). However, what is noteworthy is that the Judge did not categorise the “rejection” in the scenario postulated as anything other than just that, a rejection. That
(^1) Para. [79] plainly omits a “not” in the final sentence after the words “the squatter would”.
condition in para.1(1) would not have been met: cf Baxter v Mannion [2011] EWCA Civ 120.
If accepted, this analysis avoids the quirks (outlined above) of treating any other forms of “rejection” (in the broadest sense) as Sch.6, para.6 potential triggers.
But you may think differently. And that is the beauty of the law. It is uncertain. And dealing in uncertainty is a litigator’s business. So let us be thankful – at least sometimes – that doubt reigns supreme.
Easements – apparently?
Wood v Waddington [2015] EWCA Civ 538 is an important recent case on easements, particularly in relation to section 62 of the Law of Property Act 1925.
The decision of the Court of Appeal may be not over-heavy on brand new content and learning (although it certainly covers some points of significance) but nonetheless it provides an authoritative, detailed and reasoned review in relation to s.62. It is rare to find so much guidance on so many issues in what is (in modern terms) a condensed judgment (84 paragraphs over 23 pages).
Section 62, you will no doubt be aware, provides:
A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.
The great thing about the judgment in Wood v Waddington is that it is quite easy to distil a number of easily digestible, bite-sized propositions. They are as follows:
(1) Where it does operate, section 62 does so by way of express, not implied, grant. [36] & [60]
(2) Section 62 only applies to advantages etc. “enjoyed with” the land in question at the time of the conveyance (which includes a reasonable period before). [25]
(3) Diversity of occupation between the would-be dominant and servient tenements helps to distinguish between cases where a common owner is simply making use of
