Long & Ors v Sava

To acquire registered land by adverse possession under the former limitation regime, a claimant had to prove 12 years’ uninterrupted possession before 13 October 2003. Possession required both factual possession and an intention to possess. Factual possession had to be single and exclusive, involving physical control of the land of the kind reasonably expected of an occupying owner. Preparatory works, grazing, existing boundaries, or fencing designed merely to contain animals might amount only to occupation and not possession. An appellate court should give substantial weight to findings based on oral evidence, but may intervene where findings are plainly unsupported by the evidence or where the legal consequences of established facts have been misapprehended.

The appellants, receivers of charges over land owned by Ashirwad Limited, appealed against a decision of the Deputy Adjudicator to HM Land Registry directing alteration of the register in favour of Christos Kyriacou Sava. Mr Sava claimed that he had acquired the disputed Farm and access corridor by adverse possession.

The Deputy Adjudicator found that Mr Sava had moved onto the land before October 1991, had carried out limited fencing and agricultural activities, and had established meaningful adverse possession before 13 October 1991. The central issues were whether those findings were supported by the evidence and whether the activities proved factual, exclusive possession and the necessary intention to possess for the required 12-year period.

1. Appeal allowed. The Deputy Adjudicator’s decision was set aside. Mr Sava had not established title by adverse possession.
2. An appellate court should give great weight to findings based on the trial judge’s assessment of witnesses. It may nevertheless draw its own inferences and intervene where a finding falls outside the generous ambit within which reasonable disagreement is possible. The court should ordinarily consider the judgment as it stands and should not seek to reconstruct inadequate reasons by asking the trial judge to amplify them after the event.
3. Under the Limitation Act 1980, the paper title owner is presumed to be in possession. A claimant must prove factual possession and an intention to possess. Factual possession requires a sufficient degree of physical custody and control, assessed in light of the nature of the land and its ordinary use. The possession must be single and exclusive.
4. Fences and locked gates may be strong evidence of possession, but their purpose matters. Fencing intended merely to keep animals in, or maintenance of pre-existing hedges, fences or ditches, does not necessarily demonstrate exclusive possession. The claimant’s acts must show that he dealt with the land as an occupying owner and excluded the paper owner so far as reasonably practicable.
5. The evidence established, at most, occupation and preparatory work during 1990 and 1991. It did not establish sole and exclusive possession by 13 October 1991, nor clear and affirmative evidence of an intention to possess. The later acquisition of factual possession, including after substantial expenditure in 1995, could not satisfy the completed limitation period.
6. Documents produced after the hearing were not admitted because there was no adequate justification for their late production or proper application for permission.

1. High Court (Chancery Division): permission to appeal was granted by Henderson J on 26 February 2007. The appeal against the Deputy Adjudicator’s decision was allowed.
2. Deputy Adjudicator to HM Land Registry: on 20 October 2006, directed alteration of the register in respect of title NGL349241 and part of title NGL597449 in favour of Mr Sava.