Zarb & Anor v Parry & Anor

Under the Land Registration Act 2002, adverse possession is not interrupted merely because the paper owner enters the land, asserts ownership, erects stakes or begins a fence. The adverse possessor must lose factual possession, meaning exclusive physical control. The paper owner must retake possession to the exclusion of the adverse possessor.

For the boundary condition, the adverse possessor must reasonably believe throughout the ten years ending with the application that the land belongs to him. That belief may remain reasonable despite a neighbour’s challenge where the surrounding evidence supports it. The appeal was dismissed.

The appellants were the paper-title owners of an 890 square foot strip which physically formed part of the respondents’ garden. The strip had been conveyed to the respondents’ predecessors, but the physical boundary differed from the plan.

HHJ Pearce-Higgins QC held that the appellants owned the strip on paper, but that the respondents had acquired title by adverse possession under the Land Registration Act 2002. The appeal concerned implied permission, interruption of adverse possession by attempted repossession, and the requirement that the respondents reasonably believed they owned the strip throughout the relevant ten-year period.

The appeal was unanimously dismissed. Arden LJ gave the principal judgment. The Master of the Rolls agreed, expressing separate reasons on the interruption issue, and Jackson LJ agreed with both judgments, preferring Arden LJ’s emphasis on that issue.

1. Permission. Possession with the true owner’s permission cannot be adverse. Implied permission requires an overt act or demonstrable circumstance probative of permission, rather than merely consistent with it. Mere acquiescence is insufficient. The stock-proof fence was equivocal and the trial judge was entitled to find that there had been no consent. The distinction was supported by J Alston & Sons Ltd v BOCM [2009] 1 EGLR 93.
2. Interruption. Adverse possession requires factual possession and an intention to possess: J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419. Factual possession requires exclusive physical control, applying the passage from Powell v McFarlane (1977) 38 PC & R 452 approved in Pye. The true owner must retake possession in the ordinary sense and exclude the adverse possessor. Bligh v Martin [1968] 1 WLR 804 was followed. A brief period of possession may suffice, as illustrated by Randall v Stevens (1853) 2 E & B 641, but complete exclusion occurred there. The Zarbs’ stakes, tape, declaration, fence removal and tree cutting were preparatory or symbolic acts. They did not exclude the Parrys, who retained control of the strip.
3. Reasonable belief. Paragraph 5(4)(c) of Schedule 6 requires a reasonable belief in ownership throughout the ten-year period ending on the application date. The Parrys’ belief remained reasonable despite the 2007 solicitor’s letter. Mr Powell’s survey supported that belief, while Mr Atkinson’s later report was obtained after proceedings and was irrelevant to the statutory assessment.
4. Consequence. The requirements for the statutory defence under section 98(1) were satisfied. The paper title had therefore been displaced by adverse possession. Arden LJ’s postscript advised prompt registration and careful resolution of disputed boundaries, but those observations were not necessary to the disposition.

• Court of Appeal (Civil Division) — Appeal dismissed. [2011] EWCA Civ 1306.
• Worcester County Court — HHJ Pearce-Higgins QC held on 13 October 2010 that the appellants held the paper title to the strip but that the respondents had acquired title by adverse possession.