Pleming v Hampton & Anor

Adverse possession requires factual possession and an intention to possess. Factual possession depends on the nature of the land and its ordinary use. Enclosing a redundant accessway within a garden and using it as part of that garden may establish both elements. A use cannot be explained by an easement where the land has ceased to serve the easement’s purpose.

A promise concerning land will not found proprietary estoppel or a constructive trust where the promised co-operation was materially withheld. Nor can a promise by a person who neither owned the land nor acted with the owner’s authority bind the owner, absent authority or ratification.

The appellant owned No. 1 Cuba Cottages. The respondents owned the adjoining No. 4. Their paper titles placed the boundary along the centre of a concrete path, with each property having a pedestrian right of way over the other half.

The respondents had enclosed the path within their garden, with a hedge, fencing, an oil tank and outbuildings. The appellant sought possession of the half within her registered title. The respondents counterclaimed that they had acquired it by adverse possession and that the appellant should transfer a further two-foot strip under a letter written by her mother in return for co-operation with an extension.

His Honour Judge Catlin, sitting at Reading County Court, dismissed both the claim and counterclaim. The appellant appealed the adverse-possession finding. The respondents cross-appealed the rejection of their equitable claim.

1. Disposition. Chadwick LJ, with whom Maurice Kay LJ agreed, dismissed both the appeal and the cross-appeal.
2. The applicable adverse-possession principles were those stated in JA Pye (Oxford) Ltd v Graham [2002] UKHL 30. The claimant had to establish factual possession and an intention to possess. Factual possession required the degree of physical control appropriate to the land and its ordinary use.
3. The judge was entitled to find both elements. The path had ceased to function as a means of access or egress under the right of way because the respondents had blocked its northern end with their outbuildings and oil tank. Its use was therefore not referable to the easement. Its enclosure and incorporation into the respondents’ garden constituted factual possession and plainly demonstrated an intention to possess. The necessary possession had begun by July 1990 at the latest.
4. The cross-appeal also failed. The respondents’ material failure to provide the promised full co-operation, including preventing completion of drainage works and making threats while work remained incomplete, meant that it was not unconscionable for the promisor to withhold performance. No proprietary estoppel arose, and the same conclusion prevented a constructive trust: see Yaxley v Gotts [2000] Ch 162 and Gillett v Holt [2001] Ch 210.
5. Independently, the promise was made by the appellant’s mother after the appellant had become registered owner. The mother neither owned the land nor was shown to have acted with the appellant’s authority. There was no pleaded or proved ratification. The appellant was therefore not bound to give effect to the promise.
6. The appeal and cross-appeal were dismissed. There was no order as to costs.

• Court of Appeal (Civil Division) — dismissed the appeal and cross-appeal: [2004] EWCA Civ 446.
• Reading County Court — on 24 July 2003, His Honour Judge Catlin rejected the registered owner’s claim for possession after finding adverse possession, and dismissed the neighbours’ counterclaim for a transfer of land.