Sava v SS Global Ltd & Ors

A claimant for title by adverse possession must prove, by the critical date, unequivocal factual possession and an intention to possess to the exclusion of the world at large, including the paper owner. The required physical control depends on the land and its ordinary use.

There is no fixed period after the critical date within which the paper owner must show continuing use. Subsequent use may strongly evidence that the claimant never obtained exclusive possession. If possession had in fact been obtained, however, later acts by the paper owner would not ordinarily displace it without an actual ouster and resumption of exclusive possession.

Mr Sava claimed title by adverse possession to Beech Hill Farm and an access corridor. He relied on the transitional regime in the Land Registration Act 2002, which required him to establish possession by 13 October 1991.

A Deputy Adjudicator to HM Land Registry accepted his claim and directed rectification of the register. On an appeal by the charge-holders, a Deputy High Court Judge reversed that decision: [2007] EWHC 2087 (Ch). Mr Sava appealed, contending that his preparatory and farming activities had established possession, and that the paper owner’s later use of the land was irrelevant unless proved within a short period after the critical date.

1. Appeal dismissed. Rimer LJ, with whom Moore-Bick LJ agreed, held that Mr Sava had not proved adverse possession of either the land or the corridor by 13 October 1991.
2. Applying the principles stated in J.A. Pye (Oxford) Ltd v Graham, the claimant bore the burden of proving unequivocally both exclusive factual possession and an intention to possess in his own name and on his own behalf, to the exclusion of the world at large, including the paper owner. The assessment was objective and depended upon the nature of the land and the occupier’s outward acts.
3. Mr Sava’s acts were, at best, equivocal. In particular, until about 1995 he had left the garden gate unlocked. This allowed the paper owner free access from Dolphin Manor. His failure to bar that access was incompatible with both exclusive physical control and a manifested intention to exclude the paper owner.
4. The court rejected the proposed nine-month rule. There was no legal principle that only acts of possession by the paper owner within a limited period after the critical date could disprove a claimed earlier ouster. Later use of the land through the unlocked gate was highly relevant evidence that the paper owner had not been excluded. The evidence of continued use, especially quad biking, confirmed that conclusion.
5. The High Court judge was entitled to reverse the Adjudicator’s inadequate and unreasoned finding that the paper owner’s use was not meaningful. The fresh arboricultural evidence was refused. The correspondence relied on by the respondents did not undermine the Adjudicator’s permissible finding that Mr Sava’s occupation was not by permission.

• Court of Appeal (Civil Division): dismissed Mr Sava’s appeal and upheld the reversal of the adverse-possession decision: [2008] EWCA Civ 1308.
• High Court, Chancery Division: Mr Peter Leaver QC, sitting as a Deputy High Court Judge, allowed the respondents’ appeal and held that Mr Sava had not acquired title: [2007] EWHC 2087 (Ch).
• HM Land Registry: the Deputy Adjudicator had upheld Mr Sava’s adverse-possession claim and directed rectification of the relevant registered titles.