In Thorpe v Frank  EWCA Civ 150, the Court of Appeal has developed the requirements for establishing factual possession of land for the purposes of adverse possession. In a landmark decision, the Court held that in certain circumstances, having a courtyard repaved would be sufficient to show possession over that land. This shows a departure from the traditional test of whether the land in question has been enclosed, which is no longer essential. The court will consider, on the facts, what the nature of the land is, and how it is used, before determining whether a sufficient amount of control exists to be able to establish adverse possession.
Adverse possession is a means by which the title to land can be acquired by taking possession for a period of time. For a claim to be successful in both registered and unregistered land, the squatter must demonstrate that they were in factual possession for the requisite period of time and that they had the intention to possess.
In 1984 Mrs Thorpe acquired a property, known as Number 9, which was a semi-detached bungalow with an open forecourt. The neighbouring bungalow (Number 8) was very similar, also with a forecourt outside the front. In 1986 Mrs Thorpe instructed her son to level and repave the triangle shaped forecourt forming part of number 8. This land was located in front of Mrs Thorpe’s property and adjacent to the driveway where she parks her car. Since 1986 Mrs Thorpe power washed the forecourt, and from time to time, cleared the area of weeds and litter.
In 2012, Number 8 was purchased by Mr and Mrs Frank who then became the new registered owners. Within a year of the Franks moving in, Mrs Thorpe had erected a fence around the forecourt which her son paved. She subsequently applied to become the registered owner of this area, claiming that her interest had been obtained through adverse possession.
Although the First Tier Tribunal found in favour of Mrs Thorpe, the decision was overturned by the Upper Tribunal, who ordered that the land in question be transferred to the Frank’s registered title, from Mrs Thorpe’s. Mrs Thorpe appealed.
Court of Appeal decision
In the Court of Appeal, Mr and Mrs Frank agreed that Mrs Thorpe may have had the relevant intention to possess the forecourt, but they contended that when she repaved the land, she was temporarily trespassing. They also went on to highlight how Mrs Thorpe had previously given evidence to suggest that the forecourt was not, in fact, in her control until the fence was erected in 2013.
The court considered this argument, but acknowledged how making physical changes to a piece of land has been held to be significant in establishing whether adverse possession had occurred. Therefore the repaving of this area with a permanent surface clearly showed that Mrs Thorpe intended to own the land, and not just exercise temporary control over it.
Although the usual method of fencing land to acquire it through adverse possession is an obvious one, it is not a requirement. The land, in this case, had always been open plan, and because of its location in front of two houses in a cul-de-sac, it was subject to convents that may have prevented it from being built upon. Therefore, repaving the land was the most effective method of showing intention to possess by Mrs Thorpe.
Although this case was fact specific, it has demonstrated how laying paving over an area of land can be sufficient to establish factual possession. What might appear at first to be a temporary trespass could in fact result in possession being acquired over the land in question. As to whether an act will be sufficient to demonstrate the necessary requirements of adverse possession, will require consideration of the nature of the land and the manner in which it is used.