Regular updates on relevant case law and legislation - October 2009

CHAPTER 5 ADVERSE POSSESSION

Box A2i There must be factual possession (page 83)
Box A2iii There must be an intention to possess (page 85)

In SS Global Ltd v Sava [2008] EWCA Civ 1308; [2008] 48 EG 101 (CS), Mr Sava was claiming adverse possession under the Land Registration Act 1925 which meant he had to have 12 years adverse possession before October 2003. October 2003 was when the Land Registration Act 2002 came into force. The advantage here was that he would not have to meet the stricter conditions under the 2002 Act and so the crucial date for him was October 13th 1991, a date that did not go unnoticed by the court.

The problem for Mr Sava was that he had not demonstrated sufficient factual possession or intention to possession against the owner, Ashirwad. He had done no more than preparatory acts in relation to his occupation of the land by 1991, quite apart from the fact that he had not fenced across the garden gate which meant the owner and his family could come and go as it had always done until 1995. As was said by Lord Justice Rimer:

‘His omission to bar such access by 13 October 1991 makes hopeless his claim that he had by then assumed exclusive possession; or, perhaps more obviously, his claim that he had by then manifested an intention to exclude the world at large and Ashirwad in particular.’

Ashirwad had also made use of the land between 1991 and 1995 for car parking, picnicking and, in particular by using it for quad biking.

It was said that:

‘Those findings show that Mr Sava's claimed acts of possession not only did not extend to an attempt to exclude the paper owner from the land; they show that the paper owner was not in fact excluded. It continued to enjoy the land as before. It was never dispossessed.’

Advice for would be adverse possessors - bar every gate there is.

In J Alston & Sons Ltd v BOCM Pauls Ltd [2008] EWHC 3310 (Ch); [2009] 1 EGLR 93, the paper owner had walked over the land and had discharged water onto it. This was not enough to show that the paper owner was in possession rather than the squatter. Walking over the land was for access and was not a use of the land. The discharge of water had been minor, was on a small part of the land and had not interfered with the squatter’s activities.

In the Port of London Authority v Rupert Gerald Ashmore [2009] EWHC 954 (Ch); [2009] 19 EG 111 (CS), the Port of London Authority wanted to register its title to the riverbed where Mr Ashmore had moored his boat ‘Atrato’ since 1983. Mr Ashmore claimed adverse possession and therefore had to prove factual possession. The Authority argued that he had ‘no continuous and unbroken possession’ because his boat rested on the bottom of the riverbed twice a day only when the tide went out. The court referred back to the words of Slade J in Powell v McFarlane [1979] 38 P&CR 452 who said that you had to look at the nature of the land and how it would be used normally. Short of building a structure into the riverbed, nobody could have done anything different to what Mr Ashmore had done, but then building on the land wasn’t a requirement of factual possession. Continuous physical contact with the land wasn’t necessary either. In Redhouse Farms (Thorndon) v Catchpole [1976] 244 EG 295 those out shooting hadn’t stalked every corner of the marsh, nor were they shooting 24 hours a day. Mr Ashmore had proved factual possession.

As far as Mr Ashmore’s intention to possess was concerned, this was shown by the nature of his acts in using the land as an owner might do. The Authority had argued that mooring the boat was an equivocal act and he could have done so for all sorts of reasons other than showing an intent to possess. For example, he could have been exercising a public right of navigation, he could have been the owner of land with rights over the riverbed or he could have been there because of a lease or other right. The court held that the test was not what a disinterested passer-by might think, but what the paper owner, or someone with the paper owner’s knowledge, would think was happening if he came across Mr Ashmore and his boat. In this case, the paper owner, the Authority, couldn’t argue that Mr Ashmore was exercising a public right of navigation because Mr Ashmore hadn’t gone anywhere for 26 years. There was no suggestion that the Authority thought Mr Ashmore owned any land with rights over the riverbed and the Authority knew it hadn’t given him a lease or permission to be there. Therefore, Mr Ashmore had shown the intent to possess.

Box A3 The squatter has not acknowledged the paper owner’s title in writing (page 88)

In Ofulue v Bossert [2009] UKHL 16; [2009] 2 WLR 749 it was held that any acknowledgement counts on the day it is given or served only. It does not continue after that day and so time can run again in favour of the squatter from that date. In the same case a ‘without prejudice’ letter in which the Bosserts had offered to buy the Ofulues’ property, could not be used as a defence by the Ofulues to a claim for adverse possession. This would defeat the public policy behind ‘without prejudice’ letters which allowed disputes to be settled by negotiation without the party making the offer having to worry about such correspondence being used against them at a later date.

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