Land - Adverse possession - Exclusive possession

Zarb and another v Parry and another: Court of Appeal, Civil Division (Lord Neuberger, Lord Justices Arden and Jackson): 15 November 2011

In 1992, the previous owner of the claimants' property sold a portion of the garden to the defendants’ predecessor in title, who occupied the adjoining property, a former coach house. The transaction was recorded in a transfer that contained a plan and a description.

There was a hedge which the defendants’ predecessor in title believed marked the limit of the southern boundary (the strip), and a post and wire fence by the hedge. The claimants acquired their property in 2000. They raised a dispute about the strip with the defendants’ predecessors, but the defendants believed it to have been resolved by the time of their purchase. In 2002, the defendants purchased the property adjoining the claimants’ property. They built a balcony on their house, which was partly on the strip. Later, the boundary dispute resurfaced.

In 2007, the claimants entered the strip. They removed the post and wire fence, cut down an elderflower tree which had been used by the defendants to make elderflower champagne, and started to erect a new fence several feet inside the hedge. When they were interrupted by the defendants, the claimants abandoned the attempt. In 2008, the parties jointly instructed a surveyor, who concluded that the boundary of the strip had been the hedge.

The claimants issued proceedings, contending that the boundary marked on the plan in the transfer was not that of the hedge, and that they were entitled to possession of the strip in accordance with the plan. The county court concluded that the plan supported the claimants’ contentions, and that the hedge did not correctly mark the boundary. However, the judge held that the defendants were in adverse possession of, and had accordingly acquired the right to possession of, the strip. The claimants appealed.

The claimants submitted that: (i) the judge erred in rejecting their argument that the defendants’ predecessors in title had been in possession of the strip with the claimants’ predecessors’ consent so that the possession had not been adverse; (ii) that the judge erred in holding that the defendants’ adverse possession had not been interrupted by their attempt to fence off the strip in 2007, so that time had started running afresh; and (iii) that the defendants had not satisfied the requirement in paragraph 5(4)(c) of schedule 6 to the Land Registration Act 2002 (the 2002 act) that, throughout the previous period of 10 years, they reasonably believed that they had owned the strip.

The appeal would be dismissed.

(1) On the evidence, the judge had been entitled to find that the claimants’ predecessor had not consented to the use of the strip. Accordingly, the possession had been adverse (see [27]-[29] of the judgment). Alston & Sons Ltd v BOCM Pauls Ltd [2008] All ER (D) 312 (Nov) considered.

(2) If an adverse possessor lost exclusive physical control, his adverse possession would be interrupted and would come to an end. Time would begin to run again. The paper title owner had the advantage in law that, to effect repossession of property, it would be sufficient to show that possession had been resumed for a short period of time. The adverse possessor would be, therefore, at risk of losing possession for a brief period of time, perhaps while he was out talking a walk or doing some shopping. The fact that the paper title owner could interrupt his possession in that way lent support to the view that the act of interruption had to be effective to bring the adverse possessor’s exclusive possession to an end (see [38]-[41], [43], [71] of the judgment).

The claimants had not, in 2007, retaken possession in any meaningful sense. It was not enough that they planted stakes or had taken other steps symbolic of taking possession of the whole of the strip. Although they had embarked on an enterprise, which, had it been completed, would have involved their retaking possession of the strip, they had been interrupted and had abandoned the enterprise.

The cutting down of the tree had been little more than a spiteful act involving an elder, which many people would characterize as a shrub not a tree, and was not an act showing possession of the strip.  Accordingly, the judge had been entitled to come to the conclusion on that issue that he had (see [44], [72]-[75] of the judgment). Randall v Stevens 2 E & B 641 applied; Bligh v Martin [1968] 1 All ER 1157 distinguished; Powell v McFarlane [1977] LS Gaz R 417 considered; J A Pye (Oxford) Ltd v Graham [2002] 3 All ER 865 considered.

(3) In the circumstances, the defendants’ belief that they had ownership had been a reasonable one to hold. When they purchased their property, the dispute was dormant. By 2007, the land had been in their and their predecessors’ possession for over 10 years (see [51] of the judgment).

Laura Collignon (instructed by Child & Child) for the claimants; Christian Sweeney (instructed by Lyons Davidson) for the defendants.