A case decided in 2019* concerned the owner of a bungalow (No. 9), Mrs Thorpe, who repaved an area of forecourt forming part of the neighbouring property (No. 8) in 1985 without objection from its owner.  Since this time she also parked on the area and cleaned it from time to time.  In 2013 she fenced off the area and later applied to be registered as the owner.  Mr and Mrs Franks, who had purchased No. 8 in 2012, objected to this.

Mrs Thorpe was successful in the First Tier Tribunal but the Upper Tribunal overturned that decision.  She appealed to the Court of Appeal who held that the act of ripping up an old surface and replacing it with another of permanent character was capable of satisfying the first test of factual possession.  The Court also said that Mrs Thorpe made it readily appear that the land in question was part of the curtilage of No. 9 so there “could hardly be a clearer act of possession”.

Whilst each case is decided on its own facts, the decision confirms that physically enclosing an area of land is not an absolute requirement.  In the case of open land it is generally impossible to secure every part of the boundary so as to prevent intrusion.  The question is whether the applicant has been dealing with the relevant land as an occupying owner might have been expected to deal with it (and that no one else has been doing so).  It did not matter that after the repaving work the paper owner could continue to pass and repass over the area as before.

This is therefore a useful reminder of the need to take action promptly if land within your ownership is being used or dealt with by another.

If you require any advice in relation to the adverse possession issues you should not hesitate to contact Debbie Whiteley at these offices on 0161 819 4920 or at dfw@nexussolicitors.co.uk.

*Thorpe -v- Frank and another [2019] EWCA Civ 150