Adverse possession: Can a claim for adverse possession succeed if the squatter never takes up possession or occupation?

Can a claim for adverse possession succeed if the squatter never takes up possession or occupation?

The background

In King and another v The Incumbent of the Benefice of Newburn in the Diocese of Newcastle and another [2019], a church had been transferred by the grantor to Church Building Commissioners in 1837. The conveyance excluded the church’s burial vault underneath the property, into which the grantor and his family were later interred.

The church closed in 2004 and the respondent church authorities wanted to remove coffins from the burial vault to allow the property to be redeveloped for residential use. The appellants, being great-great-grandchildren of the grantor, claimed that they were successors in title to the vault. The FTT found in favour of the church, stating that the family had lost their title to the vault as a result of the church’s physical possession and control of the vault. The family appealed to the Upper Tribunal on the basis that the church had not evidenced possession of, or any intention to possess, the vault.

The decision

The Upper Tribunal found in favour of the appellants, concluding that the church had never taken adverse possession of the vault and that the appellants had not abandoned or discontinued their possession of it.

Adverse possession claims require proof of factual possession of the land and an intention to possess it. The church authorities had never been into the vault and had never prevented the grantor’s family from exercising their rights to access it. The claimants had no exclusive possession over the property and had not treated it as their own.

Advice and action for landlords

With interesting subject matter, this case highlights the importance of physical possession, and an intention to possess and control the property for an adverse possession claim to succeed.

Even in cases where the property’s owner is unlikely to access the property, such as in the King case, a party claiming adverse possession must access the land and show intention to possess to be able to make a claim over it, including the stopping up or contesting of any rights of way.