Adverse Possession of the River Thames – Port of London Authority v Mendoza  UKUT 146 (TCC)
This case raises the unusual question as to whether mooring a house-boat on a river can give rise to a claim to adverse possession of the riverbed underneath the boat.
The law on adverse possession is clear. It has two ingredients: factual possession (what the squatter did), and the intention to possess (what the squatter intended). Both these elements must have existed throughout the relevant limitation period i.e. 12 years if the land is unregistered but only 10 years in the case of registered land.
The Port of London Authority (‘PLA’) had applied for first registration of its title to part of the riverbed of the River Thames. Mr Mendoza objected to this application claiming adverse possession of the part of the riverbed under his houseboat, Wight Queen. First Tier Tribunal Judge Mark held that adverse possession had been obtained but the PLA subsequently obtained leave to appeal on the question of whether the necessary intention to possession had been shown. In granting leave, Judge Cousins also questioned whether factual possession had been proved.
This was heard by Judge Cooke in the Upper Tribunal. She dealt with the possession element first. She considered the previous case law and decided that there was ‘no authority to the effect that the mooring of a boat on a tidal river, without more, is a sufficient condition for adverse possession.’ However, as this had not been argued by the PLA, she refused to reverse Judge Mark’s finding of factual possession.
As far as the intention to possess was concerned, she started with the well-known statements of Slade J. in Powell v 10 McFarlane (1979) 38 P & CR 452 at 470 “ … the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with paper title …., so far as is reasonably practicable.”
And also “ …in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute. … As Sachs LJ said in Tecbild v Chamberlain ‘In general, intent has to be inferred from the acts themselves.’” Judge Cooke went on to say that normally this was not a problem “In many cases (unlike this one) intention is not a big issue once factual possession has been established. The squatter who fences a field and locks the gate is obviously intending to keep people out.”
But in this case simply mooring the boat was ‘ambiguous’, that is, capable of several explanations. It did not unambiguously show an intention to possess. “The casual observer, and likewise the paper owner, can know nothing of the boat owner’s intention from the boat’s presence. It is not possible to tell how long it has been there, how long the owner intends to stay, whether it is moored in exercise of an easement or of a public right, whether it is acquiring an easement, whether it has a licence to moor, or whether it is just trespassing, for a few days or a few months.
And so the claim to adverse possession failed on this basis.
As to what might show the necessary intention to possess, Christopher Stonor QC (acting for the PLA) suggested it might be done by putting up a sign saying “private land and mooring” or by putting a construction on the river bed to support the boat when moored. Unfortunately, for those involved in similar disputes, Judge Cooke was not prepared to comment either way on these suggestions.