Adverse Possession: Whether use of land as a right of way was sufficient to qualify as intention to possess (Amirtharaja v White – 2021)

In a case concerning a passageway excluded from the registered title of a property, was the continued use of the passageway consistent with a right of way, and could such a right of way be sufficient to prove an unequivocal intention to possess in an adverse possession claim?

The background

In Amirtharaja v White [2021], the registered title of the claimants’ property ‘Hollis House’ did not contain a passageway running between two commercial buildings. The owners of the commercial buildings applied for registration of the title of the same, including the passageway in their application. Although they were unable to evidence title to the passageway through documentation, they relied on 40 years’ uninterrupted possession of the area enjoyed by themselves and their father previously. The Land Registry’s surveyor found that the passageway was blocked and could not be accessed by them, and that it had not been used for some considerable time.

After the claimants acquired Hollis House, the ownership of the passageway came into dispute as the claimants obtained permission for development of it. The claimants’ predecessor in title stated that he had kept a locked gate accessing the passageway adjacent to Hollis House, and he used the area for storage.

The decision

The High Court found that the locked gate and benefit of easement was not sufficient to evidence an unequivocal intention to possess the land.

Referencing the key authority on the point of Littledale v Liverpool College [1900] and confirming that decision, the Court found that the claimants’ predecessor in title had not used the land unequivocally. He had protected the right of way, but not possessed the passageway, and further had not transferred any title to the passageway to the claimants when they acquired Hollis House.

Advice and action

A helpful decision that confirms the authority of Littledale, this case is noteworthy for those developing property that the benefit of an easement of right of way is not sufficient to support a claim for adverse possession.

Protection of the right of way is not consistent with possession or occupation of property.