The long standing test concerning the legal possession of land has been challenged in the landmark case of Thorpe v Frank  EWCA Civ 150. The Court of Appeal found that repaving a forecourt was enough to obtain possession in a claim for ‘adverse possession’. This decision widens the grounds required to establish factual possession.
While the enclosure of a piece of land is an obvious way to take possession, it is not an absolute requirement. The Court held that a sufficient degree of control depends upon the nature of the land and the manner in which the land is used and enjoyed.
What is adverse possession?
Acquiring land by adverse possession is the process by which a person who is not the legal owner of the land can become the legal owner by possessing the land for a specified period of time.
No. 8 and No. 9 were neighbouring semi-detached bungalow properties with open forecourts. Mrs Thorpe acquired No. 9 in 1984. In 1986, she arranged for the repaving of an area of the forecourt forming part of No. 8. Mrs Thorpe's son carried out the repaving works.
Mr and Mrs Frank became the registered owners of No. 8 in 2012. In 2013, Mrs Thorpe fenced off the paved area in question and later applied to be registered owner of the paved area on the basis that it had been acquired by adverse possession. The Land Registry referred her application to the courts.
Mrs Thorpe succeeded in the First-tier Tribunal. However, that decision was overturned by the Upper Tribunal who ordered the removal of the lands in dispute from Mrs Thorpe's registered title and transfer to Mr and Mrs Frank. Mrs Thorpe appealed to the Court of Appeal.
Findings of the Court
Mr and Mrs Frank did not challenge that Mrs Thorpe intended to possess the disputed land. However, they argued that the repaving was a mere temporary trespass by Mrs Thorpe, and that she herself had given evidence suggesting that she did not have control over the land until erection of the fence in 2013.
The Court however recognised that making physical changes to the surface of land has been held to be material in determining whether adverse possession had taken place. While enclosure of land is an obvious way to take possession it is not an absolute requirement.
The Court noted that the land in question had always been open plan. It found that the repaving of the relevant area with a permanent surface was a clear assertion of possession by Mrs Thorpe and not merely a temporary control over the land's surface – even if after the repaving the residents of No. 8 continued to pass over the area as before.
This case highlights that exclusion is not necessary for a successful claim of adverse possession. What appears on its face to be a temporary trespass may in fact constitute sufficient taking of possession for the purposes of adverse possession, depending on the nature of land in question and the manner in which land of that nature is commonly used and enjoyed.