Extent of possession
Dyer v Terry
 EWHC 209
The Land Registry Adjudicator had failed to consider the occupation of the whole of each parcel of the land in question. She had been entitled to find that there had been adverse possession of certain parcels of land but not in respect of other areas. The case considers a number of different types of activity that might not always amount to possession.
The appeal by the paper owner (O) was against the decision of the Deputy Adjudicator to alter the register on the basis that S had acquired title to four parcels of land by adverse possession. All the areas of land in question were open land at the side of a metalled surface of a road or track. The four areas dealt with were as follows:
Area 4 comprised two areas - the garden and the remainder of this area. The garden was a strip of land outside S’s house that they had used partly as a garden. They had planted and maintained the area directly outside their house but the rest of the grass verge had been mown both by them and O. O argued on appeal that the adjudicator had been wrong to make findings in relation to the whole area when there was no evidence of exclusive possession of the rest of the verge. He also argued that planting roses was insufficient evidence of possession.
The High Court held that the adjudicator had been wrong not to examine the use of the whole of the parcel of land rather than focusing simply on the section that was being used as a garden. There was no evidence of exclusive possession of the rest of the land, but there was in respect of the garden area. The Court rejected the argument that the cultivation of roses was insufficient to constitute adverse possession. The court considered a number of cases including Ellett-Brown v Tallshire (29 March 1990, Unreported) where the court held that planting daffodils was an insufficiently unequivocal act of possession. However, the Court held that each case turned on its facts and this case could be distinguished from those authorities.
Area 2 related to land that provided a brick-built stable block and was occupied by a muck heap and substantial trailer to remove the muck. During the course of occupation S had replaced the stable block and removed the concrete apron and used the land for access and parking. The stable block was built substantially over area 2. There was debate about whether the access might equally be referable to a right of way.
As to this area the appeal was not allowed. The adjudicator had been right to look at the use as a whole. On its own, storage on the land might have been insufficient, however when taken together with the other activities on the land there was sufficient intention to possess. Unlike area 4 there was straightforward division between the separate elements of activities within area 2 to say that factual possession or intention to possess failed in relation to part. In relation to the parking there was not enough evidence and the adjudicator was wrong to make findings on this basis, however even if the parking issue were removed from the fact pattern there was enough evidence on which the adjudicator could base her decision so there was no error of law. The adjudicator could not be criticised for looking at the cumulative effect of multiple acts and not compartmentalising each individual activity and treating it as self-standing.
This area was an area next to a boundary wall that was used by S as a car park. During the occupation they had removed the fence around the car park and also had concreted over the area. The area was used regularly as a car park for lorries, horseboxes and vehicles.
The judge held that the adjudicator was entitled to find that the acts of parking in light of the previous activities on the land, including that it was fenced, were sufficient to amount to exclusive possession. The act of removing the fence was an act that was consistent with exclusive physical control over the land. The adjudicator was also right to take into account the fact that the area was opposite the main farmhouse and that S believed they owned it.
The appeal in respect of Area 6 was allowed. The adjudicator had not made sufficient findings of primary fact. The judge rejected submissions by S that the judgment contained implicit findings. The only evidence was habitual passage over the land, which was insufficient to amount to physical possession. The fact that the land contained ‘potential’ for storage was not sufficient in the absence of actual evidence of such user.
This case is notable for the précis of the relevant principles of what might constitute adverse possession. The user of the land as a whole should be examined rather than attempting to dissect each element. However the court must also look at the different parts of the land and be satisfied that there has been factual possession and intention to possession in relation to all parts. The case also provides a useful analysis of different types of activity which on their own might well not amount to adverse possession but when taken together could do so.
Back to top