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Lawbite: Adverse Possession - Actions speak louder than words

  • United Kingdom
  • Litigation and dispute management
  • Real estate
  • Real estate litigation - LawBite

30-03-2021

 

Merwin Amirthan Amirtharaja and Jennifer Amirtharaja v Colin White and Frances White [2021] EWHC 330 (Ch)

A recent High Court ruling found that the erection of a lockable gate to a passageway was not sufficient to evidence an unequivocal intention to possess, excluding the owner, to support a claim for adverse possession of that passageway. 

The Whites (mother and son) claimed title to a passageway running between two commercial buildings. They argued that the land in question had been acquired by their predecessor in title by adverse possession but had then been incorrectly registered within the title to the commercial buildings and wanted rectification of the register so as to include the land within their title.   To evidence their claim they relied on a statutory declaration given by their predecessor in title (produced some time after the events it described) and pointed to the lockable gate erected by him and which remained at the entrance to the passageway.

The judge at first instance held that the Whites’ predecessor in title had been in adverse possession of the land and the inclusion of the passageway within the title to the commercial buildings was incorrect.

On appeal, however, the court looked more carefully at both the evidence of the predecessor in title and that of the Whites’ use of the land. It found that neither demonstrated an unequivocal intention to exclude the owners of the commercial buildings from the land. These actions could easily be interpreted as ones taken to keep unwanted persons out for security reasons, consistent with holding a right of way, and not ones taken to exclude the owner. 

The appeal was allowed, the Whites’ claim dismissed, and the earlier declaration and order for rectification of the register were set aside.

Key points

  • it is, perhaps unsurprisingly, more difficult to prove adverse possession over land over which the applicant already enjoys a right of way
  • a locked gate installed by persons that already have the benefit of a right of way over the land to which the gate controls access does not on its own amount to unequivocal intention to possess that land (reiterating Littledale v Liverpool College [1900]
  • the person’s intention must be clear from the actions he or she has taken so that it would be apparent to the owner that the person is seeking to dispossess him or her.  For example a claim for adverse possession is more likely to succeed if the land in question is kept cleared and maintained by the party seeking possession