Chapman & Anor v Godinn Properties Ltd & Ors

Adverse possession requires both factual possession and an intention to possess. The necessary acts depend on the nature of the land. Fencing is not invariably required. The question is whether the claimant’s acts demonstrate an intention to exclude others, assessed by what a person possessing land of that kind could reasonably be expected to do. A prior decision turning on a particular determinative fact does not establish the result on materially different facts.

Mr and Mrs Chapman claimed possessory title to a strip of land adjoining Hillyfields and sought rectification of the Land Registry titles. The strip was not included in either their registered title or Godinn Properties Ltd’s paper title, although it had been registered in Godinn’s possessory title. The Guildford County Court found factual possession and an intention to possess through the construction and maintenance of walls, entrances, banks and verges, and ordered rectification. Godinn appealed. The central issue was whether the claimants’ acts were sufficient to establish adverse possession.

1. Appeal dismissed. Lord Justice Chadwick, with whom Lord Justices Rix and Carnwath agreed, refused late permission to appeal against the direction removing the disputed strip from Godinn’s registered title. The application was made without prior notice and had no real prospect of success because the challenge to the misleading statutory declarations had been pleaded and was uncontradicted.
2. Adverse possession requires factual possession and the necessary intention to possess. The judge was entitled to find factual possession from the walls defining the entrance to Hillyfields, the construction and maintenance of the entrances, cutting and mowing the verges and banks, planting, and sweeping fallen leaves. Those acts represented the realistic use to which land of that character could be put.
3. The intention to possess is assessed by asking whether the claimant’s acts demonstrate an intent to exclude all others. Fencing is not invariably required. The court must ask what a person possessing land of that kind would reasonably be expected to do. The visible walls and obvious maintenance and construction works entitled the judge to conclude that the claimants’ intention was clear to the world at large.
4. Buckinghamshire County Council v Moran [1990] Ch 623 did not require a different result. Observations concerning a new lock and chain addressed the facts before that court. A decision based on a determinative fact gives no guide to the outcome on different facts lacking that feature.
5. The form of the declaration was remitted for reconsideration in light of the changes introduced by the Land Registration Act 2002. Appeal dismissed with costs summarily assessed at £6,750 including VAT.

• Court of Appeal (Civil Division): Appeal from the Guildford County Court dismissed. The form of the declaration was remitted for consideration under the current land-registration law.
• Guildford County Court: His Honour Judge Reid QC found that the claimants had established possessory title to the disputed strip and ordered rectification of the registered title.