Claiming land: Squatter’s rights and enclosure

Monday 8 April 2019

Last year, a client visited our offices and told us that his (now former) solicitor had failed to register some open land in his name.

The failed initial Application

We discovered that the land he had failed to register was not enclosed by any fence, wall or other similar boundary feature. This was a strip of open lawn that he had tended to (in a limited manner) for more than 12 years between the front of his house and the adopted highway.

When rejecting the Application in 2007, the Land Registry cited the usual requirements for adverse possession [1]. They explained that they rejected the Application because:

• The land was openly accessible from the adjoining adopted highway, and
• Mowing is not itself an act which Courts have generally taken to be indicative of an intention to possess

If at first you don’t succeed…

Having read the 2007 Application and the associated (in our view unsatisfactory) Statutory Declaration, we recommended that our client should submit a further Application to the Land Registry.

This was due to a prior Yorkshire-based case on this issue which demonstrated that open land was capable of being registered, notwithstanding a lack of the more usual physical boundaries traditionally associated with claims for adverse possession.

A fresh approach

It is fast becoming well-established that the true extent of sufficient physical custody and control depends upon the circumstances of each case:

• There is no longer an absolute requirement to physically exclude everyone from entering onto the land; and
• The degree of control exercised must be appropriate in all of the circumstances

When faced with the land, an independent person should be able to ascertain beyond doubt that the land belongs to the Applicant and the use of land must be such that the true owner (if there was one) would know that the squatter was in possession.

Fencing is just one way in which physical control may be exercised.

The Surrey-based case of Chapman v Godinn Properties Limited [2] demonstrated the successful registration of a roadside grass verge and embankment. Chadwick LJ said of the subject land: “it is not land… which the owner, or the person in possession, could be expected to do more than tidy up and to maintain. Keeping the land tidy involves mowing the grass and cutting back the shrubs from time to time”.

The Chapman case disproved the second limb of the Land Registry rejection of our client’s initial Application, i.e. the act of mowing being insufficient to prove an intention to possess and therefore the requisite custody and control.

Back in Yorkshire, the 2019 case of Thorpe v Frank & Anor [3] further corroborates the argument that open unfenced land is perfectly susceptible to an adverse possession claim.

The fact is some land is simply not expected to be enclosed.

A fresh Application

Our Application to the Land Registry was on the basis that our client had continuously carried out more than sufficient management and control of the land (in the circumstances) to a degree which entitled our client to be registered as the true legal owner of that land.

Our case was as follows:

1. Our client had mowed and not fenced off the open land and this reflected the behaviour of the other neighbours and it was appropriate not to mow or fence off because:
   a. the vast majority (if not all) of the neighbours on the cul-de-sac had all left their frontages unfenced
   b. there was very little in the neighbourhood to demarcate each front garden plot, and
   c. it was clear to the independent person exactly where each front garden was, and to which house each front garden belonged
2. ‘Acts of Possession’ included that our client had continuously tended to the land, cut back shrubs, weeded and block paved parts of the land. There was a storm water drain from the house through the unregistered land and more recently some work had been carried out to construct/reconstruct a stone wall and to plant further vegetation
3. There was other unregistered adjoining land to the east which our client was not claiming and which was particularly unkempt. Such land was readily identifiable as distinctly separate and wild – making it clear to any passer-by that such other land did not belong to, nor form part of, the land being claimed (which in turn demonstrated that the land being claimed was controlled and kept by our client)
4. The claimed land was elevated slightly (but critically, distinctly) from road level. The land was enclosed (not by fencing or a wall) by raised curbing. This was standard and very low level curbing, albeit a boundary of sorts. The claimed land had always been raised equal to the level of the remainder of the garden land belonging to our client. There was a concrete street marker post which clearly indicated where the public footpath ended and where the garden and claimed land began. These features were clear to (and observed by) road users and other independent visitors
5. None of the neighbours had chosen to enclose their frontages and it had been our client’s preference to have theirs open too, in order to maximise their enjoyment of the land, and
6. Our client confirmed that they believed their exercise of custody and control over the land had been appropriate at all times and in the circumstances, and their behaviour was fully aligned to all of the usual principles and requirements of physical and legal ownership.

We were extremely pleased when the Land Registry eventually confirmed that our client was finally registered as the legal proprietor of the claimed land.

 

[1] All Applicants for adverse possession need to prove a) what they have done on the land is adverse to the rights of the true owner and is sufficient to amount to possession; b) they had the intention to possess the land to the exclusion of all others; and c) the intention to possess had been made manifestly clear. All of the above need to have been true of the squatter (and any predecessors through whom the squatter claims) for at least 12 years prior to the date of the Application

[2] Chapman v Godinn Properties Ltd [2005] EWCA Civ 941

[3] Thorpe v Frank & Anor [2019] EWCA Civ 150