When Paving is a success! A recent case shows the complexity of Possession law

We have previously covered a legal topic known as “adverse possession”. This is a claim where a party who does not have legal ownership of land, can acquire ownership by possessing it for a specified period of time.

Sometimes it may relate to a small strip of land along the boundary between two properties, but larger areas of land, such as fields, can be acquired and it is not necessary for the parties to be neighbours.

In a recent case,Thorpe v Frank 2019, the owner of a house (Mrs Thorpe) had, in 1986, levelled and repaved an area of open forecourt which was owned by her neighbour. The neighbour did not object and Mrs Thorpe continued to use the forecourt and maintain it. She subsequently made a claim that she had acquired ownership of the land by adverse possession.

To claim title by adverse possession, the claimant must prove he has had:

  • Uninterrupted factual possession of the land for a specified period of time.
  • With the intention to possess the land during that period.

To demonstrate possession, the claimant must have been in control of the land in some way. This will depend on the nature of the land and how it is normally used. The claimant would be expected to use it as an owner would. It is important however that the original owner is not using the land themselves, as there cannot be dual possession.

Despite this, Mrs Thorpe won and was awarded ownership of the paved area.

John Cooke, Director of Thomson Hayton Winkley and Property Solicitor in Kendal commented:

“It is often thought that in order to be successful the claimed land must have been fenced in, but that was not the case here. Nor would the original owner have been prevented from going onto the land.”

“This is a very complex area of law where you should take specialist legal advice if you think that you may be affected.”

Published 27 September 2019

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