Defeating a claim for adverse possession.

19th December 2011

Recent case highlights the importance of knowing how to successfully defend a claim for adverse possession.

The case of Zarb v Parry [2011] EWCA Civ 1306 highlighted the importance of knowing how to successfully defend a claim for adverse possession. In this case the Court of Appeal upheld the County Court's decision to allow a claim for adverse possession on the grounds that although the claimants had prepared to take possession back, they never completed the exercise in a manner sufficient to extinguish the defendants' right. The claimants, Mr & Mrs Zarb, were defending a claim for adverse possession made by their neighbours Mr & Mrs Parry. The problem arose when the Zarbs' predecessors in title sold part of their garden to the Parrys' predecessors. The plan annexed to the transfer showed the boundary to be north of a hedge which ran through the Zarbs' property. However this strip of land between the hedge and the boundary had been in the occupation of the Parrys and their predecessors in title for over 10 years. The Zarbs, defending the claim for adverse possession, submitted that possession of the strip was originally with their predecessors consent, so that extent of the Parrys' possession could not be seen as adverse. Secondly they contended that adverse possession of the strip by the Parrys had been interrupted by the Zarbs' attempt to fence off the strip so as to start time running again. Finally the Zarbs argued that the Parrys did not satisfy the entitlement to be granted adverse possession under Sch. 6 para 5(4)(c) of the Land Registration Act 2002, as they did not reasonably believe that they owned the strip of land adjacent to their neighbours property for the full ten year period. Under the Land Registration Act 2002 new rules were set out for acquiring title to registered land through adverse possession. Under these rules an application can be made to the Land Registry to become the legal owner of the land after 10 years of continuous and uninterrupted occupation. The Land Registry then notifies the land owner, who then has 65 business days in which to object. Once the objection has been made the owner then has two years in which to evict that person. However if the land owner fails to evict them within that two year period then they are entitled to reapply for ownership and this will be granted. In comparison to claim title to unregistered land all the applicant has to show is that they have openly and continuously occupied the land as if it was their own for at least 12 years, without any attempts by the rightful owner to remove them. To successfully claim adverse possession in registered and unregistered land there must be exclusive physical control for the specified period. If the adverse possession is interrupted during that period then time is said to begin again. In this case the Zarbs tried to retake possession of the strip of land by banging fence posts into the ground to erect a fence. However this was never completed due to protestations from the Parrys. The Court held that this action was not sufficient to stop time running for the purposes of adverse possession, as the Zarbs had not taken physical control of the land to the exclusion of the Parrys. It was held that doing something less than actual possession, such as planting a flag, putting up a notice or making an oral declaration of ownership was not sufficient to interrupt the exclusive control of the adverse possessor, as these acts were merely symbolic. This case acts as a reminder that to rebut a claim of adverse possession the person with the paper title to the land must regain possession of the land to the complete exclusion of the other for a period of time. This will then assert your right to the land and start time running again for the purposes of a claim for adverse possession. • For additional information please contact Edward Worthy of Gepp & Sons on 01245 228124 or worthye@gepp.co.uk The above is not legal advice; it is intended to provide information of general interest about current legal issues.