The sole issue that the Court of Appeal was required to determine was whether Mrs Thorpe was in factual possession of a parcel of land adjacent to her property and forming part of ‘her’ driveway. The only act of possession that Mrs Thorpe sought to rely on was her paving of the land in 1986, and the continued existence of that paving; she conceded that other activities such as the weeding of, occasional parking on, and jet washing of the paving were not sufficient to give rise to a finding of factual possession.
McCombe LJ, with whom David Richards and Newey LJJ agreed, delivered the judgment of the court. It was held that Mrs Thorpe was in factual possession of the land. In reaching that decision, several important observations regarding the establishment of factual possession were made.
Nature of the land
The accepted two-part test for possession is:
- whether there is a sufficient degree of custody and control (factual possession); and
- whether there is intention to exercise such custody and control one one’s own behalf and for one’s own benefit (intention to possess).
When assessing whether there is a sufficient degree of custody and control, regard should be had to the nature of the land in question. As such, in some circumstances, it will not be necessary to exclude all others from the land to be in factual possession.
Mrs Thorpe had not excluded all others from the land. In particular, pedestrians had occasionally walked across it to gain access to the adjacent properties. It would also have been possible to create more of an enclosure around the land parcel, indeed, it was the erection of a fence in 2013 that gave rise to the possession dispute. However, the land was situated on an open plan estate, had always been open, and there were in fact covenants preventing building on and enclosure of the land. Therefore, in light of the foregoing, Mrs Thorpe’s paving of the land did amount to her dealing with the land as an occupying owner would. The paving amounted to an assertion of possession, and would have done so even if there were no covenants preventing the enclosure of the land (see paragraphs 36-38). As such, Mrs Thorpe was in factual possession of the land.
It is of note that Mrs Thorpe herself said in evidence that she did not ‘control’ the land. However, notwithstanding that admission, she was held to have a sufficient degree of custody and control for the purposes of the legal test.
Temporary trespass
It was argued that Mrs Thorpe’s paving of the land amounted only to a temporary trespass for the duration of the paving works (two weeks in 1986), and that she could not be described as in possession between 1986 and the erection of the fence. Several cases rejecting claims for adverse possession on the basis of paving were cited in support of that argument. However, it was held that each case should fall to be determined on its own facts (paragraph 50).
McCombe LJ took the view that the trespass was more than temporary. The removal of the existing paving and its replacement with new flagstones were actions that would be expected of an occupying owner, and amounted to the creation of something of a permanent and enduring character.
Conclusion
Thorpe serves as a reminder that the complete of exclusion of all others is not the only way that factual possession can be established. Instead, regard should be had to the nature of the land and all the circumstances of the case. Furthermore, when testing for factual possession, it is necessary to ask if the possessor is using the land in a way that might be expected of an occupying owner; if that question is answered in the affirmative, factual possession will be established.
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