Bringing an end to a period of adverse possession

In Zarb v Parry ([2011] EWCA Civ 1306, CA (Eng)) A sold part of his garden to his neighbour B in 1992. B (and perhaps A) mistakenly thought that a hedge marked the new southern boundary between B’s garden and A’s land. In fact, it was later shown that the plan attached to the transfer put the boundary 12 feet to the north of that edge (ie that A had transferred less land to B than had been thought). In 2007, Z (A’s successor in title) wrote to P (B’s successor in title) explaining his view as to the true position of the boundary. Some  months before that, Z tried to physically retake possession of the strip. He chopped down a tree on the land and pulled up a fence. When challenged by P he said that he was retaking possession as the land was his and he marked off the land that he claimed was in his ownership. However, after about an hour, Z left the land when P threatened to call the police. In 2008, the parties jointly instructed a surveyor who reported (mistakenly) that the hedge was the true boundary (as P contended). A later surveyor’s report showed that Z was the owner of the paper title to the strip.  Z began possession proceedings in 2010. He failed in the English Court of Appeal.

Z contended first that B had been in possession of the disputed strip as A’s licensee. A had constructed a stock-proof fence even further south than the hedge. It was argued that this showed that all of the land between the fence and the true boundary was occupied by B as A’s licensee. This failed. There must be acts probative of an express or implied licence (and not merely consistent with such a licence). This act was equivocal; there were other possible explanations (a cordon sanitaire was one possibility canvassed by Lord Neuberger MR).

Second, there was the question as to whether Z had retaken possession when he briefly entered the land in 2007. It is enough that the paper title owner takes possession for even  a brief period of time to break the period of adverse possession ([39]). The English Court of Appeal held that the acts carried out by Z fell short of a retaking of possession (though Lord Neuberger MR found this a difficult question ([67] – [76]). The paper title owner must bring the factual possession to an end by resuming possession himself (if he intends to rely on re-entry rather than proceedings) ([43]). Z’s actions fell short of a retaking of possession.

Third, under the scheme established by section 98 of the Land Registration Act 2002, P could only establish a defence to Z’s possession proceedings if, inter alia, he could show that:

‘for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him’ (Land Registration Act 2002, sched. 6, para. 5(4)(c)).

Z contended that this was not possible since he had written to P in 2007 setting out the true position. Z failed in this respect also. B had believed in his ownership of the disputed strip. So did P. P was not obliged to accept Z’s case as set out in the 2007 letter. The 2008 survey report confirmed P’s understanding as to the position of the boundary. The survey confirming that Z was the owner of the paper title only took place after proceedings had begun.

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One Response to “Bringing an end to a period of adverse possession”

  1. Paper owners need to take clear action to resume possession within the limitation period | Land Law Says:

    […] posts. The article can be downloaded from here. The article emphasis the lessons to be drawn from Zarb v Parry, J. Alston & Sons Ltd v BOCM Pauls Ltd and Bligh v […]

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