Tennant & Anor v Adamczyk & Anor

Adverse possession requires both factual possession and an intention to possess. Factual possession entails sufficient, exclusive physical custody and control of the disputed land. Intention to possess means an intention to exercise that custody and control on the possessor’s own behalf and for the possessor’s own benefit.

Non-exclusive activities, such as parking, unloading and obtaining access over another’s land, do not establish adverse possession where they neither exclude the paper owner nor demonstrate the requisite control. Later acts of enclosure cannot retrospectively convert earlier, equivocal use into adverse possession. Time under the Limitation Act 1980 begins to run only when the paper owner has been dispossessed and the adverse possessor has acquired legal possession.

The appellants were the registered proprietors of part of a yard adjoining two business units. They sought declarations of ownership and boundary, removal of the respondents’ fence, damages for trespass and mesne profits. The respondents contended that their use of the disputed land since June 1991 had extinguished the appellants’ title under the Limitation Act 1980.

HHJ Dafydd Hughes in Runcorn County Court held that adverse possession began in June 1991. He treated fences erected after the critical date in October 1991 as affirming the earlier position and declared the appellants’ title extinguished. The appellants challenged the legal conclusion, while accepting the judge’s primary findings of fact.

The central issue was whether the respondents had acquired factual possession and the requisite intention to possess before October 1991, so that the 12-year limitation period had expired before the relevant provisions of the Land Registration Act 2002 came into force.

1. Appeal allowed unanimously. The respondents had neither dispossessed the appellants nor acquired adverse possession of the disputed land before the critical date in October 1991. The appellants’ claim was therefore not statute barred.

2. Legal possession has two separate elements: a sufficient degree of physical custody and control, and an intention to exercise that custody and control on the possessor’s own behalf and for the possessor’s own benefit. The court followed the principles stated in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419, which drew upon Powell v Macfarlane [1977] 38 P&CR 452.

3. Factual possession must be assessed by reference to the disputed land itself. Before October 1991, approximately 70 per cent of the respondents’ relevant activities occurred on land which already belonged to them. Their activities on the appellants’ land consisted of non-exclusive use for access, parking, deliveries and unloading. Those activities involved no custody, control or exclusion of the appellants.

4. The later chainlink and palisade fences were acts of a different quality because they enclosed the land. The trial judge erred by relying upon those later acts as affirmation of adverse possession from June 1991. Whether adverse possession existed by October 1991 had to be determined from the circumstances then existing, without retrospective reliance upon subsequent enclosure.

5. The respondents also lacked the requisite intention to possess. Their intention was to use their own adjoining land and to use the appellants’ land only as an extension for parking, unloading and similar activities. Planting a Russian vine in a confined bed did not establish adverse possession of the yard.

6. The order extinguishing the appellants’ title was set aside. The court ordered relief reflecting the appellants’ ownership and boundary case. The appellants abandoned their claims for damages and mesne profits. The respondents were ordered to pay the costs of the trial and appeal, subject to detailed assessment if not agreed.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The County Court’s declaration that the appellants’ title had been extinguished was set aside, and relief reflecting their ownership and boundary case was ordered.
2. Runcorn County Court: HHJ Dafydd Hughes declared on 30 November 2004 that the appellants’ title to the disputed land had been extinguished by operation of the Limitation Act 1980. He entered judgment for the respondents, ordered the appellants to pay costs and refused permission to appeal.
3. Permission to appeal: Neuberger LJ granted permission on 17 May 2005.