Elizabeth Roseanne Dobson & Anor v Alison Unsted & Anor

For adverse possession, the acts required to establish factual possession and an intention to possess depend on the nature and use of the land. On an open lawned front garden, mowing and tidying may be sufficient where that is how an occupying owner would ordinarily use the land, particularly when the paper owner has ceased to use it and no-one else does so. The court must assess the activities cumulatively. Isolated acts such as children playing, placing a sign, or using land as a path may be equivocal, but together with mowing, maintenance and planting they may make possession and intention unequivocal.

The appellants owned 29 Westcott Hill, next to the respondents’ property at number 27. They sought registration of a small triangular area shown on the respondents’ registered title. The First-tier Tribunal accepted that the appellants had been in adverse possession from about 2018, when the area became a flower bed, but found that the requisite ten-year period had not been established before then.

The appellants appealed against the FTT’s conclusions concerning the period before 2018. The central issue was whether the conduct of the appellants and their predecessors, including mowing, tidying, gardening, use by children and access for garden equipment, amounted to factual possession accompanied by an intention to possess.

1. Appeal allowed. The FTT’s decision was set aside and the Tribunal substituted a decision that the appellants and their predecessors, the Hewetsons, had been in adverse possession from at least 2002 until the respondents retook possession in 2023.
2. The common-law requirements were factual possession, meaning a sufficient degree of physical custody and control, and an intention to possess. Factual possession must be exclusive, obvious and unequivocal. What acts are sufficient depends on the nature of the land and how land of that nature is ordinarily used. The Tribunal applied the approach in Powell v McFarlane (1977) 38 P&CR 452, as approved in JA Pye (Oxford) Ltd and another v Graham [2002] UKHL 230.
3. For 1994 to 2002, the Currans’ maintenance of the disputed land was undertaken pursuant to an arrangement with the neighbouring owners. Possession by agreement or permission was not adverse possession.
4. For 2002 to 2008, the Hewetsons mowed the disputed land, raked leaves and twigs, and used it as part of their garden. The owner of number 27 did nothing with it and was unaware of its existence. In the context of open-fronted gardens, mowing and tidying were what an occupying owner would have been expected to do. The reasoning that mowing could not amount to possession in that context was therefore wrong. The principles illustrated by Red House Farms (Thorndon) Ltd v Catchpole [1977] 2 EGLR 125 and Hounslow LBC v Minchinton (1997) 74 P. & C.R. 221 supported an assessment based on the land’s practical use.
5. From 2009 onwards, the appellants’ activities had to be considered together. Mowing, raking, scarifying, replacing turf and topsoil when necessary, allowing children to play, using the land for the mower and wheelbarrow, placing a number 29 sign, and planting herbs collectively demonstrated possession and an intention to possess. The use of the land for moving a mower was not equivocal when considered with the mowing. Mowing was not analogous to a profit of turbary.
6. The registrar was directed to deal with the appellants’ registration application as if the respondents’ objection had not been made.

• First-tier Tribunal (Property Chamber): directed cancellation of the appellants’ application for registration, finding adverse possession only from about 2018.
• Upper Tribunal (Lands Chamber): set aside the FTT’s decision and substituted a finding of adverse possession from at least 2002 until dispossession in 2023.