Chambers v London Borough of Havering

Adverse possession requires factual possession, an intention to possess, and possession without the paper owner’s consent. Factual possession is assessed by the nature of the land and its ordinary use. It need not involve continuous occupation or use.

An owner’s intended future use is generally irrelevant unless the squatter knew of a special purpose. Fencing erected to keep livestock in may still evidence possession. Mere inaction or acquiescence by the owner does not create an implied licence; an overt act intended and understood as permission is required.

The Council, the registered owner of undeveloped land adjoining Willoughby Drive, brought possession proceedings against Mr Chambers. He counterclaimed that he had acquired title by adverse possession for at least 12 years before the relevant provisions of the Land Registration Act 2002 came into force.

The County Court ordered possession and dismissed the counterclaim. The judge found that the use of the land had been intermittent, that fencing was maintained to contain animals, and that the Council’s failure to remove Mr Chambers could amount to implied permission.

The appeal concerned whether those findings applied the correct principles under the Limitation Act 1980, and whether the decision could stand in relation to three separately identified areas.

Disposition

The appeal was dismissed in relation to Area C but allowed in relation to Areas A and B. The dispute concerning Areas A and B was remitted for a rehearing.

1. Adverse possession. The applicable inquiry required factual possession, an intention to possess, and absence of the owner’s consent. Factual possession depends on the nature of the land and how land of that kind is ordinarily used. Continuous use is not the legal test. Intermittent use may suffice if its quality, regularity and quantity show possession, although occasional opportunistic trespass may not.
2. Intention and the owner’s purpose. Intention to possess means an intention to exercise custody and control on the possessor’s own behalf and for his own benefit. A separate deliberate intention to exclude the paper owner is unnecessary. The owner’s intended use of the land is irrelevant unless the squatter knew of a special purpose capable of supporting an inference against possession. The judge’s reasoning bore the discredited approach in Leigh v Jack (1879) 5 Ex D 264.
3. Fencing and access. Fencing maintained to keep livestock in cannot, as a matter of law, be disregarded as evidence of custody and control. Its significance depends on the evidence as a whole. A public right of way, especially where outside the disputed land, does not necessarily prevent factual possession.
4. Implied licence. Under R (Beresford) v Sunderland City Council [2003] UKHL 60, mere silence, inaction or acquiescence does not establish permission. There must be an overt act intended and understood as permission. The County Court’s inference from the Council’s failure to remove Mr Chambers was therefore unsustainable.
5. Remittal. The County Court had failed to resolve material evidential disputes, explain its reliance on aerial photographs, and apply the correct test. Since a different conclusion could not be ruled out, a rehearing was required for Areas A and B. The evidence relating to Area C, including its accessibility and contrasting condition, justified upholding the finding against Mr Chambers in that area.

• Court of Appeal (Civil Division): [2011] EWCA Civ 1576. Appeal allowed as to Areas A and B and remitted for rehearing; dismissed as to Area C.
• Romford County Court: On 28 April 2011, His Honour Judge Wulwik ordered Mr Chambers to deliver possession of the disputed land and dismissed his adverse-possession counterclaim.