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Adverse possession, abandonment and unregistered land: Daniell v Porthleven Harbour and Dock Company (First-tier Tribunal, 23 July 2021)

On 23 July 2021, Judge Ewan Paton sitting in the Land Registration Division of the First-tier Tribunal gave judgment in Daniell v Porthleven Harbour and Dock Company, an application for first registration of unregistered land on the basis of adverse possession. The decision followed a four-day hearing at which Gavin Bennison, instructed by Ben Sharples and Erica Williams of Michelmores LLP, acted for the successful Applicant.

The decision may be of interest to practitioners dealing with cases of adverse possession where:

  • the disputed land is marginal, steep, small or otherwise has unusual topography or relief;
  • the applicant must rely on periods of possession by their predecessor(s)-in-title; and/or
  • there is a (potential) argument as to whether adverse possession ceased by reason of inactivity or absence on the part of the adverse possessor.

The disputed land had an unusual topography: it was a small garden/patio area ‘dug into’ a steeply sloping hillside overlooking the harbour in the Cornish fishing village of Porthleven. It had been used as a viewing point and garden area by the owners of a cottage over the road for many years.

On one side, the land was separated from an adjacent road by a ‘Cornish hedge’: a traditional grass and earth-covered dry-stone wall. On the opposite side, the land dropped away steeply off a cliff face to the harbour below. The land was not, save on one side, fenced or gated in any way until 2017. The land was also unregistered, and so presented a rare case for the Tribunal to decide whether the necessary 12 years’ factual possession and intention to possess (animus possidendi) was proven, applying the ‘old law’ of adverse possession under the Limitation Act 1980.

The Applicant had owned the nearby cottage only since 2012. She nonetheless succeeded in proving 12 years’ adverse possession of the disputed land since 2003, when her predecessor-in-title purchased the cottage, by ‘aggregating’ the periods of possession of her predecessor (who gave evidence) and herself.

To succeed on this point, however, the Applicant had overcome an unanticipated issue on which there is almost no authority: in what circumstances will an adverse possessor be held to have abandoned possession of land during the limitation period by reason of their inactivity or absence? It had transpired during the evidence of the Applicant’s predecessor-in-title that her predecessor had not visited the cottage or disputed land at all for a period of just over 2 years from 2010, when her husband sadly passed away, to 2012, when she sold it to the Applicant.

At paragraphs 39 to 43 of the Decision, the Tribunal accepted the Applicant’s submissions that land only “ceases to be in adverse possession” during the limitation period for the purposes of paragraph 8(2) of Schedule 1 to the Limitation Act 1980 in circumstances where either the adverse possessor is dispossessed by another (of which there was no evidence in this case) or where the adverse possessor abandons their possession. On the facts, the Tribunal accepted that Applicant’s argument that possession had not been abandoned in circumstances where the then-owner of the cottage continued to believe that the disputed land was hers and advertised the cottage for sale on that basis. In those circumstances she retained the requisite animus possidendi notwithstanding that she made no physical use of the disputed land during the period in question, and so possession had not been ‘abandoned’: see [62]-[66] of the Decision.

The decision can be found here. 

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