Paul Richard Kirkman v Bradshaw Pub Company Limited

Factual possession requires an appropriate degree of physical control assessed in light of the nature of the land and its ordinary use. Enclosure is not an essential requirement for adverse possession. Its absence may be unimportant where an occupying owner would not reasonably have been expected to enclose the land. Acts done on part of a geographical unit may establish possession of the whole where the areas share a common character and functional relationship. The court must assess the land as a whole and consider how control of one part reflects on control of the remainder. Where use is open and owner-like, intention to possess may readily be inferred.

Mr and Mrs Kirkman applied for first registration of a parcel comprising a washhouse, a narrow outside area and former ashes places. The First-tier Tribunal accepted that they had acquired title to the washhouse by adverse possession but rejected the application for the outside area and ashes places, principally because that land was not enclosed along its northern edge.

On appeal, Mr Kirkman argued that the Tribunal had applied the law incorrectly to undisputed facts, particularly by treating the lack of enclosure as decisive. The Upper Tribunal considered whether the applicants had demonstrated factual possession and an intention to possess the whole disputed parcel for the required period.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside in relation to the outside area and the ashes places. The Chief Land Registrar was directed to give effect to the application for first registration of the whole disputed land.

2. Adverse possession required factual possession and an intention to possess for the relevant 12-year period. Factual possession means an appropriate degree of physical control, assessed according to the nature of the land and how land of that nature is commonly used. The claimant must have dealt with the land as an occupying owner might have been expected to deal with it.

3. The First-tier Tribunal made two errors. It divided the site into separate components without considering the disputed land as a whole, its functional relationship, or how control of one part reflected on the remainder. It also failed to consider how an occupying owner would practically use the narrow outside area and ashes places.

4. The washhouse, privy, outside area and ashes places formed one restricted geographical and functional unit. The buildings were closely adjacent, access to them was through the outside area, and the whole was substantially enclosed by existing walls. Securing the washhouse therefore supported an inference of control over the adjoining area and its curtilage.

5. There is no legal requirement that land be enclosed. The absence of a fence or gate was not decisive because the opening provided access from the road, and enclosure would have served little practical purpose. The permanent trailer and long-term storage of building materials demonstrated the appropriate degree of physical control.

6. The acts relied upon were not equivocal. The open, owner-like use of the group of buildings and adjoining land made the intention to possess the whole readily inferable.

• Upper Tribunal (Lands Chamber): appeal allowed. The decision of the First-tier Tribunal was set aside in part and registration of the whole disputed land was directed.
• First-tier Tribunal (Property Chamber): decision published on 15 May 2024. The application for first registration based on adverse possession was allowed for the washhouse but cancelled for the outside area and ashes places.