Wretham v Ross & Anor

Adverse possession requires both factual possession and an intention to possess. Factual possession is assessed objectively by asking whether the occupier exercised exclusive physical control, dealing with the land as an occupying owner might have done. The intention to possess is generally inferred from the occupier’s acts. It is unnecessary to prove a specific intention to exclude the paper owner, or to apply a test based on what the paper owner would have understood from visiting the land. An erroneous belief that the owner’s consent exists does not prevent possession where, in fact, there was no consent. The appeal succeeded for two structures but failed for the adjoining open land because the use of that land was too limited to establish factual possession.

The appellant, the registered proprietor of Greywell Cottage, appealed from a decision of the deputy solicitor to HM Land Registry concerning his application for possessory title to several adjoining parcels of land and outbuildings.

The claim relied on possession from 1968 by the appellant’s predecessor and, from 1994, by the appellant. The parties accepted that any earlier oral agreement permitting use of the land had ended on the death of the former owner in 1968. The central issue was whether the deputy solicitor had applied the correct legal test for factual possession and intention to possess under the Limitation Act 1980.

1. Applicable test. The appeal was determined by the principles stated in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419, approving in large part Powell v McFarlane (1977) 38 P & CR 452. Possession requires factual possession and an intention to possess. Factual possession means a sufficient degree of exclusive physical control, assessed objectively by reference to the nature of the land and the way an occupying owner would ordinarily use it.
2. The intention to possess is an intention, on one’s own behalf, to occupy and use the land as one’s own and to exclude the world at large so far as reasonably practicable. A deliberate intention specifically to exclude the paper owner is unnecessary. The intention is ordinarily inferred from the occupier’s acts, unless those acts are equivocal or explicable in another way.
3. The deputy solicitor had therefore asked the wrong questions in relation to parcels 2, 4 and 5 by focusing on whether the paper owner would have been put on notice of an intention to exclude him. He had also added an unwarranted requirement in relation to parcels 1 and 3 by asking whether the occupier’s acts would have manifested a clear intention to exclude the paper owner. The authorities did not require a test based on what a hypothetical visitor or the paper owner would have understood.
4. In relation to parcel 2, exclusive storage, the removal of an internal wall, the blocking of one door and the padlocking of the other established factual possession. The continued presence of one unclaimed item and the occupier’s mistaken belief that an earlier permission continued did not defeat the intention to possess. Actual consent would prevent adverse possession, but an erroneous belief in consent does not do so where consent did not in fact exist.
5. The use of parcel 1 as a store, together with the locked door, established factual possession and the requisite intention. By contrast, cutting vegetation, storing cars and other items, and keeping boats or building materials on the unfenced open land did not establish factual possession of parcels 4 and 5. The appeal was allowed for parcels 1 and 2 and dismissed for parcels 3, 4 and 5.

• HM Land Registry: The deputy solicitor allowed the application for parcel 6 and part of parcel 5, but rejected it for the parcels challenged on appeal.
• High Court (Chancery Division): The appeal was allowed for parcels 1 and 2 and dismissed for parcels 3, 4 and 5.