Paving the way to Possession

Adverse possession: Whether paving was sufficient to support a claim for adverse possession.

The background

In Thorpe v Frank [2019], Mrs Thorpe made a claim for adverse possession of an area of land included within the title of the Franks’ property.

Historically, in around 1986, Mrs Thorpe had replaced paving on an adjoining open forecourt and the paving she had laid remained in situ. The Franks argued that Mrs Thorpe had only committed a trespass by laying the paving on their property, and that she had not continued to possess the area subsequently. At the Upper Tribunal, it was found that, although Mrs Thorpe intended to possess the disputed area, she had insufficient factual possession for an adverse possession claim to succeed.

The decision

The Court of Appeal found that Mrs Thorpe had established a sufficient claim of possession to allow her appeal to succeed. The Court referred to ‘a sufficient degree of physical custody and control’, and to an ‘appropriate degree of physical control’, and found that exclusive possession was not a possibility here because of the open nature of the area in question.

The Court found that the paving constituted a solid claim to possession of the property. The hard surface prevented the Franks from accessing the subsoil beneath the property, and the permanent works gave the suggestion that the area formed part of Mrs Thorpe’s property.

The Franks argued that they had used the land for access to their property. Mrs Thorpe’s claim did not relate to access, and she put forward that, rather than using the land for access, she had incorporated the property into her own land, to which the Court of Appeal agreed. She had nevertheless not caused any inconvenience to the Franks and had not interrupted their rights of access.

Advice and action for landlords

The nature of the subject property, as well as the behaviour of Mrs Thorpe, in this case was instrumental in the Court’s decision. She had acted exactly as an occupying owner would in undertaking the works in such a way that incorporated the land into her own property.

The open nature of the land, and the lack of interruption to the Franks’ rights of access, resulted in a claim for possession that was supported by a sufficient degree of control. Cases such as this will almost certainly turn on their facts, but landlords are advised to be aware of the actions of neighbouring property owners and, where necessary, to take steps quickly to protect their own titles.