Summary

In claims for adverse possession where continued use of the land by the paper owner was alleged, there was no principle of law to the effect that the paper owner would have to establish use in the period immediately after the claimed ouster.

Facts

The appellant (S) appealed against a decision (2007) 104(40) LSG 27) that he had not acquired title to certain land located in the green belt by adverse possession. An adjudicator to the Land Registry had found that by October 13, 1991, being 12 years before the relevant provisions of the Land Registration Act 2002 came into force, S had both factual possession of the land and an intention to possess it. He also found that the paper owner (X) had made no "meaningful use" of the land since it had acquired it in 1990. Reversing the adjudicator's findings, the judge concluded that the evidence fell far short of establishing factual possession of the land and an intention to possess it, and that there was no justification for the adjudicator's finding that X's use of the land, which involved picnicking, car parking and quad biking, was as limited as he had found. S argued that (1) he had done enough by October 13, 1991 to dispossess X of the land so as to cause time to start running in his favour under the Limitation Act 1980; (2) use by X after October 13, 1991 had to be shown to have been enjoyed during the nine-month period starting on October 13, 1991 and such use had not been shown.

Held

(1) The judge had been fully entitled to conclude that S had not assumed possession of the land by October 13, 1991 and had not manifested the necessary intention to do so. The burden had been on him to establish both matters and, if he was to discharge that burden, his evidence had to be unequivocal. Crucially, he had done nothing until 1995 to exclude X from enjoying the same free access to the land through a garden gate as it had had since it acquired the land in 1990. His omission to bar such access by October 13, 1991 made hopeless his claim that he had by then assumed exclusive possession, or, perhaps more obviously, his claim that he had by then manifested an intention to exclude the world at large and X in particular, JA Pye (Oxford) Ltd v Graham (2002) UKHL 30, (2003) 1 AC 419 applied. (2) S's second submission was in effect an artificial attempt to shift to X the burden of disproving a case that he had not managed to establish. There was no principle of law to the effect that, in a case such as this, it would only be acts of possession by the paper owner carried out during a limited period after the claimed ouster that would or might serve to defeat the claim that there had been such an ouster. Such a proposition was contrary to principle. The evidence showed that X had continued to enjoy possession of the land and demonstrated the frailty of S's claim that he had both excluded X and intended to exclude it from such possession.

Appeal dismissed