Other miscellaneous points on adverse possession

This page contains various miscellaneous matters relating to adverse possession:

  • The Crown
  • Electoral roll as evidence
  • Fences
  • Former tenants
  • Interruption of possession: Is a mere demand for possession sufficient? - Squatter lying low - Temporary self-exclusion.
  • River bed and mooring
  • Stone under the surface
  • Tenant acquiring possessory title for landlord
  • Two concurrent registrations of the same land
  • Walls


Hill v Transport for London

[2005] EWHC 856 (Ch)

An obscure case on adverse possession. Deals with the situation where the paper owner is the Crown or a person claiming through the Crown. In either case the limitation period is 30 years. Held: The period of 30 years is counted from the date upon which the right of action originally accrued either to the Crown or to a predecessor if there was one.

Electoral roll as evidence

King v Job

[2002] All ER (D). 1/2/02

The county court judge relied on evidence of the electoral roll to come to the conclusion that the defendant was not in possession of the property during part of the relevant period and rejected the defendants evidence on the point. He had found the defendant to be unreliable. The CA held that the judge was entitled to accept the electoral roll as evidence.


Inglewood Investment Co Ltd v Baker

[2002] EWCA Civ 1733.

The erection of a fence is open to more than one interpretation. In this case the squatter had erected the fence merely to keep sheep in and not to exclude the rest of the world. It was not evidence of possession sufficient to establish a claim for adverse possession.

Former tenants

Williams v Jones

[2002] EWCA Civ 1097

There is a distinction to be drawn between a person who enters the land as a trespasser and a tenant who remains on the land after the end of the tenancy. In the former case it is necessary to establish an intention to possess, applying the principles in Pye v Graham (above). In the latter case, he will generally be treated as having such an intention and for the purposes of limitation the possession held by T moves from being with L's consent to being possession without his consent and thus adverse.

The effect of paragraph 5 of schedule 1 to the 1980 Act is that the possession held by the tenant moves from being possession with the landlords consent to being possession held without his consent, and thus, for limitation purposes, adverse (para 19). This analysis does not exclude the possibility that a tenant might have so feeble a connection with the land (the example given in argument was of a man who has gone off to Australia leaving the front door of the demised premises open) that, upon determination of the tenancy, he could not be said to be in possession at all. But that, in my view would be an extreme case (para 20). Ex-tenant farmer continuing to graze sheep on the land. In fact the CA considered that this would have been sufficient, in the context of the case, to constitute factual possession within the Pye test (para 31).

Interruption of possession

Demand insufficient

Higgs v Leshel Maryas Investment Co Ltd

[2009] UKPC 47


A mere demand made by a documentary title holder to be allowed back into possession is not a sufficient interference with the possession of an adverse possessor so as to interrupt the possessory period. It is either necessary to commence proceedings or to take back possession (or to obtain an acknowledgement in writing under ss29 and 30 of the Limitation Act 1980).


Lord Scott at para 57:

"The Board think it desirable that they say a word or two also about the proposition, advanced to the Board by counsel for Leshel, that a demand made by a documentary title holder to be allowed into possession is a sufficient interference with the possession of an adverse possessor so as to interrupt the possessory period. There is no warrant for that proposition. Nor is there any warrant for the proposition that a refusal by the person in possession to allow the demanded re-entry stops time running. The requirement that for prescriptive purposes enjoyment of a right be nec vi, nec clam, nec precario ... is certainly a requirement applicable to prescription of easements but the nec vi element is not, in the Board's opinion, applicable to the possession of land for possessory title purposes. The decision of the House of Lords in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 established, or perhaps re-established, that for possessory title purposes it is the intentions of the adverse possessor, not those of the documentary title holder, that are important. The remedy of a documentary title holder whose attempts to re-enter into possession are forcibly resisted by a squatter in possession is either to commence legal proceedings for possession, the commencement of which will stop time running, or, if it can be done without breach of the criminal law, to re-enter, re-take possession and throw the squatter out. Simply to accept the barring by the squatter of the desired re-entry and to do nothing to disturb the squatter's possession cannot, in the Board's opinion, stop time running."

Failure of squatter to complain when paper owner arrived

Topplan Estates Limited v Townley

[2004] EWCA Civ 1369


A factually similar case to JA Pye (Oxford) Ltd v Graham[2002] UKHL 30, which was applied; i.e. a farmer holding over after the end of a grazing licence and taking possession for more than 12 years (from 1982) and thus acquiring title by adverse possession under the Limitation Act 1980. The extra dimension to this case is that the paper owner sold a strip of the land to the local highway authority in connection with road widening works and (in 1993 i.e. before 12 years had passed). They removed the existing boundary hedge and used that bit of land for about a month whilst carrying out the works. In order to avoid drawing attention to his possession the farmer made no complaint.


The farmer was not able to claim adverse possession of the strip that was used by the highway authority because in respect of that part his possession had been interrupted. However, the paper owners argument that the farmers failure to complain meant that his adverse possession of the remainderhad been interrupted and that time had stopped running was rejected. Parker LJ:

"83. So far as factual possession is concerned, the County's activities on the Road Strip and the Working Area in April 1993 had, on the facts, no effect whatever on the respondent's continuing activities on the remainder of the disputed land. He continued to use it as he had done previously. On the particular facts of the instant case it would, to my mind, represent the height of artificiality and unreality to conclude that acts done on a specific (and relatively very small) part of the disputed land for a specific purpose unconnected in any way with the remainder of the disputed land somehow altered the quality of the respondent's continuing activities on the remainder of the disputed land. The facts of the instant case are in my judgment far removed from those of Leigh v. Jack. I agree with the judge that Leigh v. Jack is of no assistance in the instant case.

84. As to Mr Gaunt's submission that the respondent's conduct in April 1993 in not challenging the workmen when they entered on OS9162 manifested the absence of an intention to possess (i.e. to possess the entirety of the disputed land), once again that seems to me to fly in the face of reality. On the facts, the only effect of the road widening works on the disputed land was to enclose the Working Area for a period of about a month. I can see no basis for the suggestion that the fact that the respondent did not protest, or attempt to prevent the County's workmen from appropriating the Road Strip or occupying (temporarily) the Working Area, means that he did not intend to continue his factual possession of the remainder of the disputed land. Plainly, on the facts, he did so intend. 85. Generally, so far as the respondent's conduct in 'lying low' is concerned, in my judgment (and leaving aside the Land Registration Act 2002, which does not apply in this case) there can be no obligation in law on a squatter to draw the true owner's attention to the fact that time is running against him. As Neuberger J (as he then was) pointed out in Purbrick v. Hackney LBC [2004] 1 P & CR 553 at 560, it would be otherwise if the squatter had acted dishonestly; but in the instant case there is no suggestion of that. As Neuberger J said:

'it is to some extent implicit in the present law of adverse possession that an owner of property who makes no use of it whatever should be expected to keep an eye on the property to ensure that adverse possession rights are not being clocked up. A period of 12 years is a long period during which to neglect a property completely.'

    86. Of course, the activities of the squatter on the land must have been open and apparent to anyone who had eyes to see; but, as the judge correctly found, in this case they were."


Don't forget that the law changed as a result of the Land Registration Act 2002 but that those who acquired title by adverse possession before 13 October 2002, when the 2002 Act came into force, did not lose it on that date.

Temporary self-exclusion

Generay Ltd v The Containerised Storage Co. Ltd

[2005] EWCA Civ 478

The squatter had excluded itself from part of the disputed land for about three months by erecting an orange plastic tape fence about four feet high. That temporary self-exclusion was enough to defeat the squatters claim for adverse possession even though the rods and tape were erected to exclude itself from a third party rather than the paper owner. Neuberger LJ at paras 49 and 50:

"... where one is concerned with a claim for adverse possession of open land, I think it would require exceptional facts before a person who was a stranger to the land could satisfy a court that he had retained possession of the land during a period when he had intentionally excluded himself from that land, especially where that was accomplished by the means of physically fencing off the land from adjoining land which that person occupied. The fact that the exclusion was intended to be temporary does not appear to me to assist Generay. Nothing I say in this context applied to more temporary absence. Adverse possession obviously does not require a person to maintain a 24 hours a day physical occupation. However, in this case there is positive exclusion, albeit, rather unusually, self-exclusion. A person can obtain title by adverse possession even though he may envisage his occupation being temporary. Similarly, in my view he may lose it by an exclusion from possession, even though that exclusion may be temporary. But there must be an exclusion from possession, as opposed merely to a temporary absence."

River bed


Port of London Authority v Mendoza [2017] UKUT 146 (TCC)


Simply mooring a boat was not, without more, sufficient evidence on which a finding of adverse possession could be made. There were many reasons why a boat might be moored, and the mere act of mooring gave no insight into the boat owner's intentions.

More detail

There was no authority to the effect that simply mooring a boat was, without more, both factual possession and sufficient evidence of intention to possess such that a finding of adverse possession could be made. That was not to say that the mooring of a boat in this way could not ever amount to adverse possession. For the element of intention to be evident from the fact of possession, the authorities were clear that that possession must be unambiguous.

Possession was very far from unambiguous in the instant case. The act of mooring gave no insight into a boat owner's intentions even though M used the boat as a home. A boat occupied as a home did not always stay in the same place. Moreover, there was no finding of fact to the effect that it was obvious to anyone looking at the boat that it was being used as a home. The presence of a moored boat was as equivocal an act of possession as could be imagined. The casual observer, and likewise the paper owner, could know nothing of the boat owner's intention from the boat's presence. It was not possible to tell how long it has been there, how long the owner intended to stay, whether it was moored in exercise of an easement or of a public right, whether there was an easement, whether it had a licence to moor, or whether it was just trespassing, for a few days or a few months.

The River Thames was subject to public navigation rights. There was no absolute rule that adverse possession was impossible where there were public rights of navigation and no analogy should be drawn between highways and rivers as they are so different (Port of London Authority v Tower Bridge Yacht & Boat Co Ltd [2013] EWHC 3084 (Ch) obiter considered. An analogy could be drawn with the adverse possession of land through which a public footpath ran as in such cases, adverse possession did not extinguish the footpath, JA Pye (Oxford) Ltd v Graham. [2002] UKHL 30 applied. Similarly, public navigation rights could not be extinguished by adverse possession.

Stone under the surface

Construction and repair of forest roads and tracks and ramps for harvesting and quarrying

Wynne-Finch v Natural Resources Body for Wales

[2020] EWHC 1924 (Ch)


The Claimants’ unsuccessfully sought a declaration of their rights and for damages for trespass.


The Claimants, as trustees of the Williams-Wynn 1987 Settlement (the “1987 Settlement”), contended they owned everything below the surface of large tracts of land in rural northern Wales. The Claimants’ alleged the land in question had formerly been nearly all rough open pasture and had formed part of the Manor of Arwystli or the Manor of Cyfeiliog. They claimed that the manors had been owned by or on behalf of members of the Williams-Wynn family for centuries. The Claimants asserted that the surface land had been disposed of by the family but what was beneath it, including all stone under the surface, had been retained and was held by them.

The Defendant was a public body formed in 2012 to fulfil the Welsh devolved functions of the Environment Agency and the Forestry Commission which meant the Defendant managed land on behalf of the Welsh Assembly.

The proceedings affected 40 freehold titles; the land being used for forestry purposes. The titles covered:

  • Category A: conveyances by the Claimants’ predecessors in title with an express exception and reservation;
  • Category B: conveyances made by the Crown out of the Manor of Croyddin to Sir Watkin Williams Wynn tin 1864 Crown grant;
  • Category C: contractual enclosure agreements; and
  • Category D: awards under the The Arwystli Enclosure Act 1816

The Claimants were not themselves seeking access to the sites to exploit the rights that they claimed to have, but the dispute arose because in September 2016, the Defendant enquired of the Claimants' agent whether it could acquire stone by licence.

The Claimants became aware that the Defendant had extracted what they considered to be a considerable quantity of stone from the land. The Claimants agreed that future terms could be agreed on the basis they were compensated for the past extractions. The Defendant refused and maintained the Claimants had no rights to the stone, or that if they ever did then those rights had been barred by adverse possession, a stance which the Claimants argued was inconsistent with past actions.


Whether the claim was defeated by reason of the Defendants’ adverse possession of the land.


The Defendant had established factual possession, with the necessary intention to possess, of at least a sufficient depth of mudstone over the area concerned to allow any activity that was consistent with its operations (JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 applied).

This included the construction and improvement or repair of forest roads and tracks, ramps for harvesting and related quarrying. Therefore, like the construction of paving in Thorpe v Frank [2019] EWCA Civ 150, the trespasses were not simply temporary: the actions taken by the Defendant and its predecessors changed the subsoil and bedrock in an enduring way. The Defendant has also been dealing with the land in this way, and as an occupying owner would, for well over the 12 years required to establish title by adverse possession. No one else has been dealing with it.

Although the Court did not accept the accuracy of the mapping exercises presented by the Claimants, the Claimants had retained a corporeal title to minerals in the land categories, A, B and D. However, in none of those categories did the Claimants' title extend to ownership of mudstone, including interbedded sandstone and shales of the kind found on the Defendant's land.  

If the above was incorrect, then the Defendant had established adverse possession to the mudstone (including interbedded sandstone and shales) to whatever depth might be required for activities undertaken by the Defendant as surface owner of the relevant forested area. There was also no concealment or deliberate commission of a breach of duty for limitation purposes.

In respect of category C, the Defendant had an undifferentiated title to the surface and everything beneath it. The title of the Claimants’ predecessors has been extinguished by adverse possession.

The Defendant was not liable in damages.

Tenant acquiring possessory title for his landlord

Tower Hamlets London Borough Council v Barrett

[2005] EWCA CIV 923

Where a tenant squats on a third party's land and thereby acquires title to that land he generally does so for the benefit of his landlord at least where the land to which possessory title is acquired is very close to the demised land and occupied by the tenant together with that demised land.

"[However] there is not an absolute rule, but only a presumption, that possessory title to adjoining land encroached on by a tenant is acquired by the landlord (and deemed to be included in the tenancy), and that one is entitled to take account of subsequent acts to see whether the presumption applies or is rebutted. It seems to me that, at least where the adjoining land is still included in the tenancy, it should be relatively easy to conclude, even to presume, that, where the landlord and tenant thereafter agree a sale of the reversion to, or, indeed, a new tenancy of, the land originally comprised in the tenancy, the sale or new tenancy should extend to the adjoining land, especially if subsequent acts confirm that conclusion.(Neuberger LJ).

Two registrations of the same land

Parshall v Hackney

[2013] EWCA Civ 240


“Even someone who knows nothing about land registration would realise that concurrent registration of title to the same piece of land in the names of different people is bad news.” (Mummery LJ at para 8). Through a mistake of the Land Registry, the same parcel of land was registered as part of two different titles that were in separate ownership. An attempt by one party to claim title based on adverse possession failed because it is not possible to claim adverse possession of a piece of land if you are the registered proprietor of it. No right of action could arise based on adverse possession because there was no unlawful act of taking possession. The basis for determining who had the right to the title was one of rectification.


The case concerned a claim for adverse possession of a parking space adjoining two mews houses, numbers 31 and 29. Part of a parking space (the area) was owned by No.29 for almost a century. Due to a mistake by the Land Registry in around 1980 the area was also included in the registration of title of No 31. The parties therefore both had legal title. Later the Land Registry compounded the problem when computerising its title plans in 2000 by removing the land from No.29. The owner of No.29 discovered the error and applied for rectification in 2008. However, the owners of No 31 had secured the area in 1988 and used it for the next twelve years. The owners of No 31 opposed the application for rectification on the basis of adverse possession.

First instance

The Deputy Adjudicator held that the owners of No. 29 would have been entitled to rectification of the register and that this would have allowed them to seek an order for possession. They therefore had a right to recover the disputed land. In light of this finding he concluded that the owner of No 31 had acquired possessory title to the disputed land.

Decision on first appeal

The owner of No 29 appealed. The High Court dismissed the appeal but for different reasons than the Adjudicator. The owners of No 29 appealed to the Court of Appeal. Permission was given on the ground that it raised an important point of principle involving the separation of legal and beneficial ownership in relation to adverse possession.

Decision on second appeal

The Court of Appeal granted the appeal. This was a case where there were parallel legal estates in the same land.

The Court addressed two questions: was there a right of action during the relevant period; and if so did time run in favour of the owners of No 31 as persons in adverse possession? The Court concluded that the owners of No 29 were not dispossessed by the owners of No 31 and therefore there was no “adverse possession” within the meaning of the Limitation Act 1980. There was no dispossession because the taking of possession was not unlawful. It was lawful for the owners of No 31 to take and remain in possession of the disputed land because they had registered title to it. Mummery LJ at para 88:“…unless and until the land register is rectified by order, the legal position is that the owners of No 29 did not have a completed cause of action for recovery of the disputed land. They could neither have nor plead a better title to the disputed land than the owners of No 31. They both had registered title to it with all that that entails under the 1925 Act. …. The two registered titled co-exist on the register unless and until corrected by rectification. The determination of the question of rectification is logically prior to the determination of the question of possessory title. It has to be decided who was entitled to be registered as proprietor of the disputed land before it can be decided whether the right of the proprietor to recover the disputed land is statute barred. …it is not open to the [owners of No 31] to ignore the legal fact of concurrent registration of title to the disputed land or its consequences.”The Court pointed out that statute provides the machinery which has to be used to establish true title before any question arises of establishing possessory title to registered land. It had to be decided who was entitled to be registered as proprietor of the disputed land before it can be decided whether the right of the proprietor to recover the disputed land was statute barred.

As to the discretion to rectify, as Mummery J said:

“There are no grounds for interfering with the decision of the Deputy Adjudicator as to how he would have exercised his discretion to rectify, but for the possessory title point. The points forcefully advanced by [counsel for the owners of No 31] against rectification could not disguise the plain unvarnished fact that his client is seeking to take the benefit of a mistake by the Land Registry, which had occurred through no fault on the appellants' side and which it would be unjust not to correct.”


Palfrey v Wilson

[2007] EWCA Civ 94

In applying Prudential Assurance Ltd v Waterloo Real Estate Inc. [1999] 2 EGLR 85 the CA upheld the decision of the judge at first instance that adverse possession of a wall had been established.


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