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Taking Control in Adverse Possession – by John Aldis

John Aldis

1. Disputes often arise between neighbours over shared driveways. Different principles will apply to determining a boundary line, acquiring easements of parking or vehicular access by prescription, or claiming title to a portion of disputed land.

2. Where one of the parties is advancing an adverse possession claim to a portion of disputed land, a key question is: what acts constitute factual possession? Is parking on a driveway sufficient? What about cleaning it, weeding it or re-surfacing it? Thorpe v Frank [2019] EWCA Civ 150 provides helpful clarification.

Facts of Thorpe v Frank

3. Mrs Thorpe and Mr and Mrs Frank lived in neighbouring properties: No. 8 and No. 9. Mrs Thorpe acquired No. 9 in 1984 and obtained first registration in 2014. Mr and Mrs Frank became registered proprietors of No. 8 in 2012.

4. Mrs Thorpe applied to the Land Registry for registration as freehold proprietor of part of the shared driveway on the basis of a title acquired by adverse possession.

5. In support of her application, she relied on the fact that:

  • Her son had repaved the driveway in 1986;
  • She had regularly parked on it and power-washed it, wearing out a number of washers in the process [Kudos to anyone who can wear out more than one pressure washer];
  • She regularly cleared the area of litter and weeded it.

6. By the time the matter reached the Court of Appeal, the issue was simply this: had Mrs Thorpe established factual possession of the disputed land by the laying of the 1986 paving and the continuation of that paving on site?

Summary of the Law

7. First, a quick summary of the established legal principles. In Powell v McFarlane (1977) 38 P&CR 452, Slade J said:

“(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prime facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (“animus possidendi”).”

8. Lord Browne-Wilkinson clarified the meaning of legal and factual possession in JA Pye (Oxford) Ltd. v Graham [2003] 1 AC 419 as follows:

“…there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control (“factual possession”); (2) an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”).”

9. In Thorpe v Frank the court drew attention to this extract of Slade J’s judgment in Powell v McFarlane (emphasis added):

“(3) Factual possession signifies an appropriate degree of physical control. It must be a single and exclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed… Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

The Court of Appeal’s Decision

10. In giving judgment for Mrs Thorpe, the Court of Appeal held that:

While enclosure of the land (by fencing etc) is an obvious manner in which a person can take possession, it is not an absolute requirement;

  • Having regard to the nature of this open forecourt area, the ripping up of the old surface, digging out the land, inserting hardcore, levelling the surface with the area surrounding it and then replacing the flags with new flags and bricks of one’s own choosing were just the sort of actions that one would expect an occupying owner to do in dealing with this land;
  • This was a clear interference with the rights of the paper title owner, asserting not merely a momentary control over the nature of the land’s surface but a control of it for the future. This was not merely a temporary trespass for two weeks during the works period, as [counsel for the Franks] put it; it was the creation of something of permanent and enduring character.
  • Mr Thorpe’s work for his mother had created something that gave the entire apron the appearance of being an adjunct to No. 9, whatever might have been said of the pre-existing paved surface;
  • In completing these works, the paper title owners were also excluded from the soil below the apron’s surface by a permanent covering of Mrs Thorpe’s construction.

Practical Impact

11. This decision will assist alleged possessors who can rely on acts such as paving a driveway or erecting fencing around the disputed land.

12. Mrs Thorpe’s evidence of parking on the driveway was not sufficient to establish factual possession, but this will be viable in other cases. A claim did succeed partially on this basis in Williams v Usherwood (1983) 45 P&CR 235 where it was held that: “…the significance of parking varies greatly according to the exact circumstances of the relevant ground. Parking cars on a strip of waste land may have no evidential value whatever in relation to possession of the land. In the enclosed curtilage of a private dwelling-house, however, it may be regarded as evidence of possession.”

13. Finally, Thorpe v Frank will not assist those who can only point to acts such as cleaning a driveway. If there was anyone who could establish adverse possession by pressure washing, it was Mrs Thorpe.

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