Wilson & Anor v Grainger

Adverse possession requires both factual possession and an intention to possess. Factual possession means a sufficient degree of exclusive physical control, assessed in light of the nature of the land and how land of that kind is ordinarily used. Fencing is not an indispensable requirement. An appellate court should respect primary factual findings, particularly where the first-instance judge heard the witnesses, and should interfere only where the decision is plainly wrong. Where the issue involves evaluating several factors, intervention is justified only if the conclusion falls outside the range of reasonable disagreement. Permission from the true owner prevents subsequent occupation from being adverse.

The appellants appealed from a decision of the Deputy Adjudicator to HM Land Registry concerning disputed land adjoining their property. The Deputy Adjudicator held that they had not acquired the Garage Land by adverse possession between 1974 and 1986 and that the respondent had licensed their use of it in 1987. The appeal challenged the application of the factual-possession test, the assessment of the evidence and the finding that permission had been granted. The Patio Land was not in issue on appeal.

1. Appeal dismissed. The Deputy Adjudicator had applied the correct legal test and his factual conclusions were sustainable.
2. Adverse possession requires factual possession and the requisite intention to possess. Following J.A. Pye (Oxford) Ltd v Graham [2003] 1 A.C. 419 and the formulation approved from Powell v McFarlane [1977] 38 P&CR 470, factual possession requires an appropriate degree of exclusive physical control. Whether that degree exists depends on the land’s characteristics and ordinary use. A fence is not essential.
3. The Garage Land was waste or overgrown land. The Grainger family continued to cross it, use it for bonfires and dumping, and leave a wheelbarrow there. The puppy fence was low and did not demonstrate exclusive control. The Deputy Adjudicator was entitled to conclude that the appellants had not possessed the land adversely for 12 years.
4. The appellate approach was governed by Assicurazione Generali SpA v Arab Insurance Group [2003] 1 W.L.R. 577. Primary findings and inferences required full weight to be given to the first-instance judge’s advantage in seeing the witnesses. An evaluative conclusion should not be disturbed unless it fell outside the bounds of reasonable disagreement.
5. The finding that the respondent granted permission in 1987 was supported by the parties’ conversations, the letter of 14 July 1987, the later correspondence and the appellants’ statutory declaration. Permission prevented any subsequent occupation from being adverse.
6. The procedural defect concerning service of the appeal notice caused no prejudice and was waived under CPR rule 3.10.

• High Court (Chancery Division): Mr Timothy Cowen, sitting as Deputy Adjudicator to HM Land Registry, delivered his decision on 23 October 2008. He rejected the claim to the Garage Land by adverse possession and found that its use had been licensed from 1987.
• High Court (Chancery Division): Permission to appeal was granted by Blackburne J on 29 April 2009. Vos J dismissed the appeal.