Burns v Anthony & Anor

Adverse possession requires proof of both exclusive factual possession for the limitation period and an intention to possess to the exclusion of others. Factual possession is assessed by the nature of the land and its ordinary use. The claimant must have dealt with it as an occupying owner might be expected to do, and the acts of others must not amount to concurrent possession. Acts extending over only part of an area may establish possession of the whole as a matter of degree. The requisite intention may be inferred from conduct. Tenuous domestic use that does not conflict with regular business use may be insufficient to establish possession.

The plaintiff claimed a declaration of title to land by adverse possession. The second defendant, whose paper title had been held jointly with her husband, counterclaimed for a declaration that the defendants remained the legal owners. The disputed land had been excluded from the defendants’ earlier tenancy but included in their later freehold purchase. The plaintiff subsequently acquired neighbouring properties and asserted title to the same land. The Croydon County Court upheld the plaintiff’s claim on 29 May 1996. The appeal concerned whether the plaintiff and his predecessors had exclusive possession and animus possidendi during the relevant period, and whether the defendants’ use amounted to possession.

The Court of Appeal, in a judgment delivered by Simon Brown LJ with which Henry LJ and Mummery LJ agreed, unanimously dismissed the appeal.

1. Under section 15(1) of the Limitation Act 1980 and paragraph 8(1) of Schedule 1, the claimant had to establish exclusive possession of the disputed land by himself and his predecessors for the relevant 12-year period, together with animus possidendi: an intention to possess the land to the exclusion of all others.
2. The court applied the principles stated in Powell v MacFarlane and Another (1977) 38 P & CR 452 at 470. Factual possession requires an appropriate degree of physical control and a single, exclusive possession. Whether that standard is met depends on the nature of the land and the way land of that nature is commonly used. The alleged possessor must deal with the land as an occupying owner might be expected to deal with it, with no one else doing so. Whether acts on part of an area establish possession of the whole is a matter of degree.
3. On the facts, the plaintiff and the Crofts had used the disputed land as part of one enclosed yard for the regular parking requirements of a motor-trading business. The defendants’ domestic activities were tenuous, extended into other parts of the yard, and did not conflict with the business use. Their use remained unchanged after the 1981 conveyance. The judge was therefore entitled to find that the plaintiff had maintained a single and exclusive possession.
4. The plaintiff’s and the Crofts’ intention to possess could be inferred from their conduct. An express finding was unnecessary. Regular, apparently as-of-right parking close to the defendants’ conservatory was a strong indication of exclusive possession.

The order was: appeal dismissed; the respondents’ costs payable against the Legal Aid Fund under section 18; legal aid taxation.

1. Court of Appeal (Civil Division): The second defendant’s appeal was dismissed unanimously. The respondents’ costs were ordered against the Legal Aid Fund, with legal aid taxation. [1997] EWCA Civ 2106.
2. Croydon County Court: His Honour Judge Crush upheld the plaintiff’s claim to freehold ownership by adverse possession on 29 May 1996.