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Adverse Possession and Rights of Way – The search for an unequivocal act

The recent High Court decision in Amirtharaja v White highlights the difficulties in trying to establish adverse possession of land which is being used for access.

The facts

The White family acquired a property known as Hollis House. There was a passageway that ran from the garden of Hollis House between two commercial buildings and out to the public highway.  The passageway did not form part of the title to Hollis House but had been used to access the house.

The passageway was included in the same title as the commercial buildings, which were owned by members of the Amirtharaja family.

The White family applied to have the passageway included in the title to Hollis House on the basis of adverse possession. They relied on the use that the previous owner of Hollis House, Mr Bright, had made of the passageway.

Mr Bright had used the passageway for access for many years. He had also controlled access to the passageway, though a gate between the passageway and the public highway, which he had kept locked.

The Amirtharaja family objected to the application, arguing that Mr Bright’s use of the passageway did not satisfy the requirements for a claim of adverse possession.

The decision

In order to establish adverse possession over registered land, an applicant must show that they had both actual possession and an intention to possess the relevant land for a period of at least 10 years.

The Court decided that Mr Bright’s use of the passageway was insufficient to establish an intention to possess and dismissed the White family’s application on that basis.

The Court held that to establish an intention to possess, an applicant needed to rely on an unequivocal act which could not be explained by any motive other than the applicant’s intention to own the land.

Although Mr Bright had controlled access to the passageway through a locked gate (which is often regarded as good evidence of an intention to possess) the Court held that this did not unequivocally demonstrate that he intended to own the land in this case. This is because his use of the gate was better explained by the need to protect Hollis House from intruders gaining access through the passageway.

The difficulty

It is clear from the case that in order to establish adverse possession, an applicant will need to be able to point to an unequivocal act demonstrating that they intended to acquire ownership of the land and not simply to use it.

This is very difficult where the applicant already enjoys a right of way over the relevant land. Almost anything that the applicant does in respect of the land (e.g. erecting a gate or undertaking maintenance) is likely not to be regarded as an unequivocal act, because it could be explained with reference to protecting and facilitating the right of way instead of acquiring ownership.

Further, the Court in Amirtharaja v White was sceptical about using witness statements prepared after the event as evidence of what the applicant intended when doing an act, noting that such statements “are obviously easily capable of being merely self-serving”. This places an even greater emphasis on finding an act which is objectively unequivocal.

Practical tips

It takes longer (20 years) to acquire a right over land that you do not own than to acquire title to land through adverse possession (10 years or 12 years if the title to the land is not registered). If you are using a piece of land that you do not own for access without permission, an unsuccessful application for adverse possession may alert the legal owner who could stop you using the land entirely before you have acquired a right of access.

If you are seeking to acquire title to land through adverse possession (in particular in relation to an accessway) consider what overt acts you can do to demonstrate that you intend to own the land instead of simply using it. In addition to ensuring that the land is physically enclosed and controlling access, you could consider, for example, erecting prominent signs saying “private land keep out” or similar.

If you are using or occupying land you do not own and want to protect your position, please take legal advice before taking any further action.

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