Topplan Estates Ltd v Townley

For adverse possession under the Limitation Act 1980, “adverse” describes the claimant’s capacity, not hostility. The claimant must prove factual possession and an intention to possess, assessed by objective acts in context. An intention to own, or a deliberate intention to exclude the paper owner, is unnecessary. Clear and open use of land as an owner would use it will usually suffice. The squatter need not notify the owner that time is running, absent dishonesty. Earlier grazing licences do not dilute post-expiry possession. An owner’s re-entry onto a defined part affects that part only and does not interrupt possession of the remainder.

The appellant, the registered proprietor of approximately 13 acres of agricultural land, sought possession from the respondent. The respondent claimed 12 years’ adverse possession after grazing arrangements ended on 1 January 1983 and counterclaimed registration as proprietor.

Lloyd J upheld the respondent’s claim except for a temporary working area used during road-widening works. The appellant appealed, contending that the respondent’s continued use after the grazing arrangements did not amount to possession and that the 1993 works interrupted adverse possession across the land. There was no cross-appeal concerning the working area.

Appeal dismissed. Lord Justice Jonathan Parker gave the leading judgment, with Lord Justice Pill and Lord Justice Hooper agreeing.

1. Under the Limitation Act 1980, the word adverse describes the capacity of the person claiming possessory title, not the quality of the possession. It does not require aggression, hostility or subterfuge. Possession requires both factual possession and an intention to possess.
2. Factual possession is assessed in the circumstances of the case, having regard to the nature of the land and its ordinary use. Agricultural use, maintenance of boundaries and locked gates demonstrated physical control and exclusion. The required intention is an intention to occupy and use the land as one’s own, not an intention to own it. A deliberate intention to exclude the true owner is unnecessary; exclusion is required only so far as reasonably practicable and permitted by law.
3. Clear objective acts will generally manifest the intention to possess. The acts must be open and apparent, but a squatter has no legal obligation to alert the true owner that time is running. Dishonesty could engage section 32 of the Limitation Act 1980, but there was no dishonesty here.
4. The earlier grazing agreements could not dilute or denature the respondent’s subsequent objective acts. A person holding over after a consensual arrangement is not in a weaker position than a person who enters as a trespasser and carries out the same acts.
5. The 1993 works affected defined areas only. The respondent’s failure to protest against authorised works did not negate his continuing intention to possess the remainder. The effect of the owner’s resumption of possession was therefore limited to the area actually resumed. Leigh v Jack was factually distinguishable and provided no assistance.

The existing order, under which the respondent succeeded except in relation to the temporary working area, remained in force. The Land Registration Act 2002 did not apply to the events in issue.

• Court of Appeal (Civil Division): In [2004] EWCA Civ 1369, the appeal was dismissed.
• High Court of Justice, Manchester District Registry: Lloyd J upheld the respondent’s adverse possession claim over the disputed land, save for the temporary working area used during the road-widening works.