Food Convertors Ltd and another v Newell and another

Boundary dispute – Adverse possession – Title to land – Appellants claiming adverse possession of land subject to boundary dispute – Appellants appealing against decision of county court resolving dispute in favour of respondent neighbours – Whether appellants establishing adverse possession – Appeal dismissed The appellants appealed against a decision of the county court by which it declared that the boundary between land owned by the first appellant (and previously owned by the second appellant) and land owned by the respondents was along a red line on a plan annexed to the order and not along a blue line on the same plan, so that the land which was between the two lines was owned by the respondents and within their title as registered at the Land Registry. The disputed land was near to, but did not actually adjoin, Church Road, Heywood, Westbury, Wiltshire. The county court rejected the case put forward by the second appellant, acting in person for himself and for the first appellant (of which he was a director), that there was an enforceable boundary agreement in his favour in relation to the disputed land and/or he and later the first appellant had acquired title to the disputed land by adverse possession. The court found that the second appellant had failed to establish that he had been in adverse possession of the disputed land for 12 years before 13 October 2003, which was a relevant date for the purposes of the Land Registration Act 2002. It was not in dispute that, subject to those claims, the respondents were the registered proprietors of the disputed land. In relation to the claim to adverse possession, the court concluded that the combination of a bund and an improved stock-proof fence (the combined boundary feature) created by the second appellant were capable of forming part of acts which, taken overall, were sufficient to prove exclusive possession. However, the difficulty for the appellants lay in the fact that the combined boundary feature did not enclose the disputed land. Nothing else defined or excluded access to the disputed land on its western or southern boundaries, there was generally a dearth of reliable evidence as to that use of the land over the relevant period and there was evidence of extensive and regular continued use of the land by the respondents. Held: The appeal was dismissed. (1) Before the coming into force of the relevant provisions of the Land Registration Act 2002 (on 13 October 2003), the law as to the acquisition of title by adverse possession in the case of registered land was governed by sections 12 and 17 of and schedule 1 to the Limitation Act 1980 and section 75 of the Land Registration Act 1925. No action could be brought by a person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him (section 12(1) of the 1980 Act). The 2002 Act introduced a different regime as to adverse possession in relation to registered land. However, schedule 12 to the 2002 Act contained transitional provisions. If a person had already been in adverse possession for 12 years prior to the coming into force of the 2002 Act, so that the registered title was held on trust for that person (under section 75 of the Land Registration Act 1925), then he remained entitled to be registered as the proprietor of the estate (para 18(1) of schedule 12 to the 2002 Act). Thus, in relation to the period before 13 October 2003, if it were shown that the second respondent had been in possession of the disputed land for 12 years, then the respondents, as registered proprietors of the disputed land, would be unable to bring an action to recover possession of the land and the person who had been in possession for the relevant 12 years could apply to be registered as proprietor in their place. (2) There was a presumption that the owner of land with a paper title was in possession of the land. If a person who did not have the benefit of that presumption wished to show that he was in possession, the burden was on him to show that he was in factual possession of the land and that he had the requisite intention to possess the land. He had to show that he had an appropriate degree of physical control of the land, that his possession was exclusive and that he had dealt with the land in question as an occupying owner might have been expected to deal with it and no-one else had done so. Whether a person had taken a sufficient degree of control was a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which such land was commonly enjoyed. The person seeking to show that he had had possession of land had to show that he had an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title. The intention to possess had to be manifested clearly so that it was apparent that the person now claiming to have been in possession was not merely a persistent trespasser. If the acts relied on were equivocal then they would not demonstrate the necessary intention. The required period of adverse possession was 12 years. Paragraph 8(2) of schedule 1 to the Limitation Act 1980 made it clear that the period of adverse possession was not to be broken. In that sense, the possession had to continue for 12 years. However, the concept of possession of land did not require a person to be physically present on the land for every moment of the 12-year period. The concept of possession was satisfied if the person claiming to be in possession for 12 years, without interruption, had had the requisite degree of control of the land throughout the relevant period. On the findings of fact by the county court, the court had been right to conclude that the second appellant had not established that he had gone into and retained possession of the disputed land for all of the 12-year period prior to 13 October 2003: J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419; [2002] 28 EG 129 applied. Simon Williams (instructed by Awdry Bailey & Douglas, of Marlborough) appeared for the appellants; John Sharples (instructed by Middletons, of Wiltshire) appeared for the respondents. Eileen O’Grady, barrister Click here to read a transcript of Food Convertors Ltd and another v Newell and another