Adverse possession – does a fence matter?
Adverse possession (commonly known as “squatter’s rights”) is continuously using land which is owned by someone else, as your own for a period of time, and then applying to be registered as the legal owner of the land.
The land must be used exclusively by you without any objection from the owner of the land. If the land is not already registered at the Land Registry, you can apply to be the legal owner of the land after 12 years. If the land is registered, then you can apply to be registered after 10 years of using the land.
For a successful adverse possession claim, and to be registered as the owner of the land, one of the elements which has to be proven, is that you have been in physical possession of the land.
One of the best ways to prove you have physical possession of the land is to fence off or otherwise enclose the land. However, in the recent case of Thorpe v Frank 2019 EWCA Civ 150, the Court of Appeal seemed to suggest that this is no longer an essential precondition to making a claim for adverse possession, as the court decided the act of laying paving slabs on the ground was sufficient evidence to show physical possession of the land which gave the person the ability to be registered as the legal owner.
In Thorpe v Frank, Mrs Thorpe had paved a triangular plot of land in approximately 1986 and regularly parked her car on the land. The land however, was actually owned by her neighbours, Mr and Mrs Frank. The dispute arose when Mrs Thorpe placed a fence over the land. Mrs Thorpe stated she regularly power washed the area, picked up litter from it and removed weeds which grew there. She also stated she had not had any objections to using the land from Mr and Mrs Frank during their ownership of the Property from 2012, nor from the previous owners.
The previous owners included Mrs Frank’s Mother, who owned the property from 1995 to 2012 before giving it to Mr and Mrs Frank in 2012. Mr and Mrs Frank claimed Mrs Thorpe did not have exclusive use of the land as they had regularly driven over the land, including before they owned their property when they visited Mrs Frank’s Mother. The Court of Appeal held although the fencing of the land was a clear way to show possession, the fact Mrs Thorpe had taken up the old surface, dug the land up, put down hardcore and laid slabs, were the typical actions of an owner of the land, which interfered with the Mr and Mrs Frank’s (and the previous owners before them), ownership of the land. Therefore, Mrs Thorpe was entitled to be registered as the true owner of the land.
This case demonstrates that the lack of fencing or enclosing over an area of land specifically will not prevent a claim for adverse possession. This decision could potentially mean more cases being able to make a successful claim for adverse possession, provided the person making the application is still able to prove they have acted in a way typical of an owner of the land.
The above is a brief guide to recent case law on the subject of adverse possession. If you would like more information on this subject, or advice about buying or selling your residential property, please do not hesitate to contact us.
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