Maurice Edward Henwood v Peter Thomas Galton Copeland & Ors

Adverse possession requires factual possession and an intention to possess, demonstrated by conduct that would make the intention apparent to the paper owner. Use consistent with a right of way, maintenance, or permission does not ordinarily establish adverse possession. Licences from the paper owner are fatal to a possessory-title or prescriptive-right claim.

For registered land, the Land Registration Act 2002 generally disapplies limitation periods. A pre-registration possessory title may nevertheless justify alteration of the register where registration was a mistake and it would be unjust to leave the register unchanged. A boundary-based exception to registration of an adverse possessor is confined to land forming part of the uncertain boundary area.

The claimant owned Carrick, a residential property in Cornwall. He brought three claims concerning adjoining land, including the Lower Quay, Hick’s Meadow, the Driveway, the Strip, parts of the upper and lower tracks, and the boundary with Pentui.

He claimed ownership by adverse possession, rectification or alteration of registered titles, prescriptive rights of way, and relief for trespass and nuisance. The defendants counterclaimed in trespass. The central issues were whether the claimant had acquired possessory titles or easements, whether the relevant registered titles should be altered, and whether the alleged conduct amounted to trespass or nuisance.

1. Disposition. The claimant established a possessory title to the Strip. The register was ordered to be altered accordingly. He also established a prescriptive right of way over the Driveway, and the register was to be altered to reflect it. The remaining claims were dismissed, subject to a counterclaim for trespass and damage concerning unauthorised access to the Lower Quay and felled trees.
2. Adverse possession. The relevant inquiry required factual possession, consisting of an appropriate degree of physical control, and an intention to possess for the claimant’s own benefit and to exclude the world at large, so far as reasonably practicable. The conduct must be sufficiently unequivocal to make that intention apparent to the paper owner. Mere use for access, maintenance, or works consistent with an easement was insufficient.
3. The claimant’s use of the Lower Quay was defeated by the licences granted by the Copelands. His use of Hick’s Meadow and the Driveway did not amount to sufficient or apparent dispossession. Negotiations to purchase and requests that registered owners undertake repairs were acknowledgments of their ownership rather than acts of adverse possession. The Strip was different: after 2000 the claimant treated it as an extension of his garden and used it for storage. Those acts constituted apparent dispossession, and twelve years had elapsed by 2012.
4. Where land had been let, adverse possession could not run against the landlord during the tenancy. Thus, in relation to the Driveway and Strip, time could not run against the Copelands before the tenancy ended in 1993.
5. For registered land, the Land Registration Act 2002 disapplied the ordinary limitation provisions. The registration of the Driveway in 2004 was not a mistake because no possessory title had then been established. Registration of the Strip in 2016 was a mistake because the claimant had already acquired title by adverse possession. Alteration was just because the persons first registered were not entitled to registration and the claimant would have been registered had he applied.
6. The boundary exception in Schedule 6 paragraph 5(4) to the 2002 Act was narrowly confined to disputed land within the general boundary area. It did not assist in relation to Hick’s Meadow or the Driveway.
7. The alleged nuisance claims failed. The defendants’ recreational use, limited drone flights, temporary access obstruction, and other conduct did not, on the evidence, constitute unreasonable interference with the claimant’s enjoyment of land. The court declined injunctive relief in any event where the conduct had ceased and was unlikely to recur.