Landlord loses appeal against adverse possession claim over land used as a right of way
When buying land it is important to check the site and ensure that what you understand is the extent of the property is not being encroached upon. Leaving it until after the purchase can be too late as illustrated by the case of Calverley Village Day Nursery Ltd v Lynch [2022] EWHC 1855 in which the buyers found that they owned less land than they thought they had purchased.
The facts
Select Products (Yorkshire) Ltd occupied a commercial property at 57 Rodley Lane, Leeds under licence from its owner, Mrs Lynch. The adjoining commercial property at 55 Rodley Lane was owned by Calverley Village Day Nursery Ltd.
Until 1991 both areas of land had been in the sole ownership of Mr & Mrs Psarias. No. 57 was sold first, on 16 July 1991, to Mr Lynch and a Mr Spence. Calverley bought No.55 from Mr & Mrs Psarias in 2018 knowing that Mrs Lynch (as successor to her husband and Mr Spence) and Select were alleging that they had the right to keep containers and other materials on part of the land at No. 55.
Calverley claimed that Mrs Lynch and Select had trespassed on their land in three ways:
- by parking cars at the front of No.55 without permission;
- by parking vehicles and placing skips on part of a right of way granted to No.57; and
- by leaving a metal container on a part of No.55 to the rear of No.57.
In their defence Mrs Lynch and Select claimed adverse possession over the disputed areas. To succeed, they needed to show 12 years’ adverse possession before 13 October 2003. This date was relevant as it was at this point that the procedure for proving adverse possession of registered land changed (although the trial judge said that he would have reached the same conclusion under the revised system).
The trial judge dismissed the trespass claims and found that Mrs Lynch and Select had acquired by adverse possession part of the areas in dispute.
Further title to those areas having been acquired by their predecessors before 13 October 2003, Mr & Mrs Psarias had held that land io trust for Mrs Lynch and Select at the time of the sale to Calverley so they could not comprise part of the land sold. Calverley appealed. The appeal was heard before Mr Justice Fancourt in the Chancery Division of the High Court on 22 July 2022.
The issue
The primary issue in the appeal was whether there was sufficient evidence of possession of land and an intention to possess to entitle the judge to conclude that, by virtue of 12 years’ adverse possession, title to that land was held on trust for the predecessors in title of Mrs Lynch by 13 October 2003.
The judge had found that during the 12-year period from mid-1991 to mid-2003, there was an “irreducible minimum” of possession of the equivalent of two car parking spaces on the disputed land:
- a skip had been placed on the disputed land from shortly after its acquisition and had remained there at all times since;
- Mr Lynch had stored materials on the disputed land both on a rack and on the ground and he and Mr Spence used the disputed land as an informal dumping ground when the skip was full; and
- they had weeded and tidied the area over time, effectively treating the land as if they owned it to the exclusion of others.
This usage from mid-1991 onwards was sufficient to start the clock running for the purposes of an adverse possession claim and demonstrated the necessary intention to possess, possibly fuelled by their mistaken belief that they were getting the equivalent of two parking spaces immediately behind No.57 when they bought it.
Calverley contended that the judge was wrong to reach that conclusion.
The decision
Mr Justice Fancourt disagreed with Calverley. He was satisfied that the judge had fully in mind the importance of the 13 October 2003 date and that:
- the evidence about parking on the disputed land from the outset and the placing of the skip from the same time was sufficient to establish possession of the specific area of the disputed land; and
- the mistaken belief held by Mr Lynch and Mr Spence that they were getting the equivalent of two parking spaces when they bought No.57 is itself evidence of an intention to own the disputed land.
Was the use of the land by Mr Lynch and Mr Spence in the nature of an easement, rather than exclusive possession of the land? Mr Justice Fancourt thought not. The determining factors are the extent and nature of the physical use of the land and the intention with which the possessors make that use. The evidence in this case was that Mr Lynch and Mr Spence took and made effective and exclusive use of the disputed land during the period in question and in doing so there was no space for anyone else to make use of it. This was not use in the nature of an easement. The parking of a car in combination with the use of the adjoining space for placing a skip and other materials was in the character of possession of that specific area being enjoyed with No.57. The position would have been different had they merely made use of whatever space was free in the car park from time to time.
Calverley took a chance in buying the land with full knowledge of the claims of Mrs Lynch and Select which ultimately cost them a portion of the site. In other situations the seller might not be aware of the loss of land particularly on the fringes of large sites or agricultural land and the buyer must inspect the site for evidence of adverse possession.
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