Nec vi, nec clam, nec precario

It is said that when the Land Registry introduced compulsory registration of land in 1925 a quarter of the solicitors practising in England and Wales at the time retired, as they believed no good could come of the new “Registered Land” regime.

Until then the ownership of most property was proved by the physical Deeds to the land which showed how the property came into the current ownership. The exact boundaries of such land were inevitably often unclear as if any plans were attached to the Deeds their legibility, accuracy and reliability was massively variable.

Where the exact boundaries were unclear it was relatively common for someone to claim ownership of a piece of land if they could show that they had occupied it for at least 12 years to the exclusion of all others “Nec vi, nec clam, nec precario” that is, without force, without secrecy and without permission.

The central registration of land and the Land Registration Act 2002 made it much more difficult to claim adverse possession of registered land as the boundaries of the land were (relatively) clearly shown on Land Registry plans and provided the claimant can not prove occupation of the land for at least 12 years before 13 October 2003 if the landowner objected to an adverse possession application it would generally be dismissed.

This could be good news for property developers as it made it easier to establish the boundaries of a development site without the fear that an adjoining owner could claim ownership of part of it.

However English law is in a state of constant flux and in the case of Thorpe v Frank [2019] the Court of Appeal has decided that merely repaving a forecourt parking area is enough to succeed in a claim for adverse possession of it.

The facts here are relatively straightforward in that the owner of one house arranged for the adjoining house’s forecourt parking area to be repaved in 1986 and in 2013 fenced off the area and claimed adverse possession of it. The claim was disputed in that the claimant had not apparently occupied the area to the exclusion of all others until it was fenced off in 2013 but the Court of Appeal disagreed and ruled that merely repaving it was enough to succeed with the claim.

This is a surprising decision and to a certain extent must be viewed on its own facts. However developers will need to take care in the future as a precedent has been set by the Court of Appeal that if merely resurfacing land can allow someone to claim ownership of it.

For more information about how the Boyes Turner Property team can help you contact Bob Daniels by email at [email protected].