Thorpe v Frank & Anor

For adverse possession, the issue is whether the claimant has assumed ordinary possession of the land without the paper owner’s consent. It does not require a confrontational ouster, an intention to exclude the whole world, or use inconsistent with every possible use by the paper owner.

Factual possession requires an appropriate degree of physical custody and control, assessed objectively by reference to the land’s nature and ordinary use. Enclosure is not indispensable. On open-plan residential land, permanently removing an existing surface, altering the level and laying a new paved surface can be a clear and enduring assertion of possession, even if others continue to cross the area.

Mrs Thorpe claimed title by adverse possession to a triangular part of an open paved forecourt adjoining her bungalow. The land lay within the registered title of the neighbouring owners, Mr and Mrs Frank.

The First-tier Tribunal found that Mrs Thorpe had obtained factual possession and the necessary intention to possess from 1986, when her son replaced the surface with permanent paving. The Upper Tribunal reversed that decision. It treated the work as a temporary trespass and held that the land had remained open and uncontrolled until fencing was erected in 2013.

Mrs Thorpe’s second appeal concerned whether the paving works and their continuing physical presence established factual possession for the purposes of the Limitation Act 1980.

1. Appeal allowed unanimously. McCombe LJ, with whom David Richards and Newey LJJ agreed, held that Mrs Thorpe had established factual possession from 1986. The First-tier Tribunal had therefore been correct to uphold her adverse-possession claim.

2. Under section 15 and Schedule 1 to the Limitation Act 1980, the relevant question was whether Mrs Thorpe had gone into ordinary possession of the disputed land without the paper owners’ consent. Following JA Pye (Oxford) Ltd v Graham [2003] AC 419, neither forcible ouster nor an intention to exclude the whole world was required. Legal possession required factual possession and an intention to possess.

3. Factual possession required an appropriate degree of physical control. The inquiry was objective and depended on the nature, situation and ordinary use of the land. The proper question was whether the claimant had dealt with the land as an occupying owner might have been expected to deal with it. Absolute exclusion was not required, particularly for open land on an open-plan estate.

4. The 1986 works were not merely a fortnight’s trespass. Mrs Thorpe’s agent removed the previous surface, excavated the land, installed hardcore, altered the level and laid a permanent new paved surface of her choosing. Those acts created an enduring physical feature, excluded the paper owners from the underlying soil, and made the whole apron appear to be an adjunct to No 9. They were acts an occupying owner would ordinarily perform.

5. The fact that neighbours and visitors could continue to pass over the open paved area did not negate possession. Earlier authorities showed that changes to a land surface, including paving, could be powerful evidence of possession. The Upper Tribunal had placed undue weight on the absence of fencing and had failed to apply the fact-sensitive test for factual possession.

6. McCombe LJ additionally observed that the Upper Tribunal should hesitate before ordering a partial re-hearing of evidence in an appeal of this kind. Ordinarily it should determine the appeal on the First-tier Tribunal’s findings, admitting fresh evidence only under the usual rules.

• Court of Appeal (Civil Division) — allowed Mrs Thorpe’s appeal and restored the First-tier Tribunal’s conclusion that she had acquired title by adverse possession: [2019] EWCA Civ 150.

• Upper Tribunal (Tax and Chancery Chamber) — by an order dated 7 November 2017, allowed Mr and Mrs Frank’s appeal, reversed the finding of factual possession and directed alteration of the registered titles.

• First-tier Tribunal — by an order dated 23 October 2016, upheld Mrs Thorpe’s adverse-possession claim, finding factual possession and intention to possess from 1986.