Adverse possession of access ways - issues for developers and landowners

The owners of the commercial units (as the original registered owners of the passageway) brought an appeal to the High Court seeking to overturn the Order rectifying the register and restore their rights as the registered owners of the passageway.  

The decision reiterates that in order to succeed for a claim for adverse possession, it is necessary to demonstrate not only physical possession of the land but also an intention to enjoy possession to the exclusion of all others including the ‘true’ owner.  Due to weaknesses in the content of the statutory declaration by the former owner of the house, the Judge held that the evidence before him was ambiguous and could be consistent not only with an intention to possess but also simply be consistent with the continued use of the passageway for the enjoyment of a right of way with the additional precaution of installing a gate at the road entrance in order to preserve security for the passageway and the residential property beyond it.  In the light of this ambiguity, the claims of the owners of the house to ownership of the passageway failed, the title of the original owners was confirmed and so the application to establish title by way of adverse possession failed.

This decision is noteworthy for three reasons:

1. It confirms how difficult it is to establish adverse possession (squatters’ rights) over areas of land affected by rights of way.  Exclusive control of the affected land is often hard to demonstrate primarily because the property is open to access.  This applies whether the claim to ownership is made by the person with the rights of access or by a third party occupying the land in question.  Similar issues apply where the land in question is used not only for access but also for parking as the coming and going of vehicles can be attributed to exercise of rights only rather than exercise of rights of ownership.  
2. The case also emphasised the importance of production of strong unambiguous evidence in support of the claim for adverse possession.  In this case, the content of the statutory declaration relied upon was seen to be ambiguous and did not provide, with sufficient clarity, evidence of the intention to possess the land exclusively as owner.  
3. The evidence in favour of the claim for adverse possession relied upon a statutory declaration that was made some decades after the events in question and was therefore seen by the Judge as being tainted by the circumstances of the dispute which had subsequently arisen.  For landowners and developers looking at sites affected by potential adverse possession claims, it is important to get hold of evidence early.  Going back to collect evidence later is problematic both because the person with the relevant knowledge may be less willing to co-operate once they have sold their land but also because the quality of the evidence will diminish over time to the point where (as in this case) a judge becomes very sceptical about its legitimacy.  

Key messages

• Claims for adverse possession of land affected by rights of way are particularly problematic.
• Evidence needs to be clear-cut indicating an intention to possess exclusively and the mere act of possession will be insufficient.
• The best evidence is that which is produced at the time or as close to the time of the relevant activities as possible and later evidence will often carry less weight if a dispute arises.