Adding periods of adverse possession together

Adverse possession of registered land has no effect on the register. But, when the Land Registration Act 1925 was in force, section 75 provided that the registered proprietor held the title on trust for a squatter who had been in adverse possession for 12 years. The Land Registration Act 2002 changed the law, but did not affect section 75 trusts already in existence: paragraph 18, schedule 12. Consequently, squatters who had been in adverse possession of registered land for more than 12 years on 13 October 2003 can still apply to be registered as proprietors under the 1925 Act rules. Haandrikman v Heslam [2021] UKUT 0056 (LC) concerned a strip of land, 75m by 12m, which had once been part of a railway that was dismantled pursuant to the Beeching reforms. British Railways Board sold the strip in 1987, but conveyed only “such right title or interest” as it had to the buyer – who subsequently registered the land – because it was aware of a possible encroachment on the land. Indeed, the First-tier Tribunal found that the adjoining landowners, the Atkinsons, had been in adverse possession of the strip. They had fenced its southern boundary, thereby closing it in. Their son had grazed sheep on it and they completed their 12 years in 1990, before selling up in 1994. Mr Heslam had subsequently acquired their land and applied to be registered with title to the strip in 2017. He claimed that his predecessors had acquired title to the strip before 2003, that the title had been held on trust, that successive squatters can take over from each other without executing a deed, or transfer of their beneficial interest pursuant to section 53(1)(c) of the Law of Property Act 1925, if there are no gaps between periods of adverse possession (Site Developments (Ferndown) Ltd v Cuthbury Ltd [2010] EWHC (10 Ch)) and that he was entitled to registration as the beneficiary of a section 75 trust. However, the registered proprietor argued that the Atkinsons had not remained in adverse possession until they sold up. She relied on the fact that their son had stopped grazing the land, and claimed that the presence of the southern fence alone was insufficient to amount to adverse possession. Consequently, the subsequent owners, who bought in 1994, had not been in adverse possession for 12 years when the 2002 Act came into force, and the 1925 Act rules did not apply. The registered proprietor argued that erecting a fence to keep people out is good evidence of adverse possession, but that erecting a fence to keep animals in or out is not. She relied, in particular, on Inglewood Investments Company Ltd [2002] EWCA Civ 1733 and Batt v Adams (2001) 82 P & CR 32, and on Collingwood King v Newcastle Diocese [2019] UKUT 176 (LC), which concerned a vault beneath a church where there was no evidence that anyone had ever entered the vault. But the Tribunal upheld Mr Heslam’s claim. It ruled that every case turns on its own facts. It was incorrect to argue that fencing land to control animal movements can never, as a matter of law, amount to factual possession or evidence of an intention to possess land. The strength of the fencing was significant. And it is taking possession that is critical; continuous use is not the test. The Atkinsons had taken adverse possession and the fact that the land was transferred during a period when the land was not being grazed did not mean that adverse possession had ceased. Allyson Colby, property law consultant