Adverse Possession and Consent

Clewer v Scammell [2018] UKFTT 209 (PC) 

A recent case before the First Tier Tribunal, Land Registration Division serves to remind conveyancers of the application of the principles relating to adverse possession in a classic conveyancing context.

The first reminder is that although the Land Registration Act 2002 substantially changed the law relating to adverse possession of registered land, making it harder for a squatter to obtain title, if 12 years adverse possession under the old rules can be established as at the date when the 2002 Act came into force (13th October 2003) then the squatter will still be entitled to be registered as proprietor.

This dispute was between neighbours on a housing estate near Southampton. The estate had been built on what might be called an ‘open plan’ basis where the front gardens had no boundary structures between the plots. The house owners are often not keen on the open plan idea and so over time fences are erected. Unfortunately, as in this case, they are not always erected in the correct place.

Mrs Scammell had the bought her house new with her late husband in 1972. The Applicants, Mr and Mrs Clewer bought the house next door in 1980. By that time, the apparent boundary between the two houses had already been delineated. In 1973, Mr and Mrs Scammel had dug a border across the front garden and indicated the boundary between the houses with a line of bricks. By the time the Clewers bought, this had been replaced by an 18 inch high fence in the same position. The Clewers subsequently erected a wooden fence of their own alongside the Scammells’ fence.

The problem was that the fences had been erected in the wrong place. The Scammels never thought to check the title plan before erecting their fence. They assumed that the boundary would be at right angles to the front walls of the houses, and erected the fence accordingly. Unfortunately, the actual boundary ran at an angle of about 110 degrees from the front line of the houses. This resulted in a triangular part of the Scammell’s garden being included on the Clewer’s side of the fence. It was this triangle that was the subject of the adverse possession claim.

Matters came to a head in 2014 when the Clewers replaced their wooden fence with a metal ‘colourfence’. Whatever that might be, Mrs Scammell didn’t like it and instructed contractors to remove it. As a result, the Clewers applied to Land Registry for registration of the triangle based on adverse possession. When Mrs Scammell objected, the matter was referred to the Tribunal.

The law on adverse possession is well established. The claimant must prove factual possession of the land without the owner’s consent coupled with an intention to possess, for the relevant period, in this case 12 years. Mrs Scammell claimed that the Clewers were not in factual possession or, if they were, that possession was with her consent.

Apparently, the sewer pipe from the Scammells’ house ran under the disputed land with an inspection cover being situated on that land. The judge held that these did not prevent the Clewers being in factual possession. It just meant that they would acquire title subject to an implied easement in favour of Mrs Scammell to enter the land and repair the sewer.

As far as the alleged consent was concerned, this stemmed from the fact that in 1992 the Scammells had offered to sell the disputed land to the Clewers for £10 plus legal costs. This offer was rejected. There was no evidence that permission to occupy had ever been requested or given and this reminder that the land belonged to the Scammells was not sufficient of itself to amount to the granting of permission to occupy the land.

The real message here for conveyancers, though, is that when buying property it is essential to check that the title plan accurately reflects the property on the ground. Obviously, this is not something that conveyancers can do personally, but we must send a copy of the plan to the client and request them to check that all is in order. All this would have been avoided had the Clewers done this when they bought.





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