Adverse Possession

March 23rd, 2022

Milton Keynes Council v Wilsher (2022) EWHC 578 (QB) restates, at para 5, the approach to be taken in determining a question of adverse possession : –

  1. There is a PRESUMPTION that the owner of land with a paper title is in possession of the land;
  2. If a person who does not have the benefit of this presumption wishes to show that he/she is in possession of that land, the BURDEN is on him/her to show that he/she is in FACTUAL possession of the land AND that he/she has the requisite INTENTION to possess the land;
  3. For a person to show that he/she is in factual possession of the land, he/she MUST show that  (i) he/she has an appropriate DEGREE of physical CONTROL of the land, (ii) his/her possession is EXCLUSIVE, and (iii) he has dealt with the land in question as an occupying owner might have been expected to deal with it and no-one else has done so;
  4. Whether a person has taken a sufficient degree of control of the land is a matter of FACT, depending on ALL the circumstances, in particular (i) the NATURE of the land, and (ii) the MANNER in which such land is commonly enjoyed;
  5. The person claiming to be in possession may be in possession through his/her tenant or licensee, IF, that tenant or licensee has, on the facts, sufficient control of the land to amount to factual possession;
  6. The person seeking to show that he/she has had possession of land must show that he/she had an intention for the time being to possess the land to the exclusion of ALL other persons, including the owner with the paper title;
  7. The relevant intention is an intention to possess and need not be an intention to own;
  8. The intention to possess must be MANIFESTED CLEARLY , so that it is APPARENT that the person now claiming  to have been in possession was not merely a “ persistent trespasser”;
  9. If the acts relied on are EQUIVOCAL then they will not demonstrate the necessary intention;
  10. It is possible in some cases for a person in possession to add to his/her own period of possession the period of time during which his/her PREDECESSOR was in possession.

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