A Court of Appeal decision handed down in January 2022 serves as a reminder of the importance of establishing the necessary intention in an adverse possession claim.  This requires an intention to ‘exclude the world at large’, including a paper title owner, whoever they may be and whether or not their identity is known.

In White & another v Amirtharaja & another, the Claimants/Appellants (the ‘Whites’) claimed title to a passageway leading to their property by way of adverse possession by their predecessor who had lived there for almost 40 years.  The Whites bought the property in 2017 meaning they did not meet the ten year requisite period for establishing adverse possession under the Land Registration Act 2002.  They therefore relied on their predecessor’s possession of the passageway whilst the land was unregistered. 

At first instance the Whites were successful. The Respondents (The ‘Amirtharajas’) appealed to the High Court on a number of grounds, including a new argument that the County Court had failed to consider whether the Whites’ predecessors had a good paper title to the passageway.  Having considered all the arguments, the High Court concluded that the Whites did not have enough evidence to show that their predecessor had an intention to possess the passageway and ‘exclude the world at large’ 

The Whites appealed to the Court of Appeal.  They argued that the High Court had been wrong to allow the Amirthanrajas to advance a new argument about who had paper title to the passageway, as it was a matter which had not been previously raised at trial.

The Court of Appeal rejected the Whites’ appeal. They decided that the paper title issue was wholly irrelevant to whether the Whites could establish title by adverse possession.  The High Court’s essential reasoning was that the Whites’ predecessor did not show sufficient intention to “possess” the passageway to the exclusion of the world at large.  Even though the Amirthanrajas had tried to advance the new argument about paper title, this had not been relevant to the High Court reaching the conclusion it did. Instead, the High Court had considered the key test to be how the Whites’ predecessor had behaved, and what their intention was in relation to the land over which possession was claimed. There had not been sufficient intention to reject the world at large, so the claim for adverse possession failed. The Court of Appeal agreed.

This case re-asserts the established position in the case of Powell v McFarlane, specifically that to obtain adverse possession, there must be a clear intention to exclude the world at large. When making an application for adverse possession, it is essential that this can be demonstrated.

https://www.bailii.org/ew/cases/EWCA/Civ/2022/11.html