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Landmark case: enclosure not an absolute requirement for adverse possession

Posted on 5 August 2019 by Sasha Loveridge

Landmark case: enclosure not an absolute requirement for adverse possession

Adverse possession is the process by which a person who is not the identified legal owner of land can acquire legal title by possessing land for a specific period of time. The following need to be established for a successful claim:-

  1. Factual possession
  2. Requisite time period has been satisfied;
  3. Absence of the owner’s consent; and
  4. Necessary intent to possess.

Since 2013, it has become more difficult to make a successful application for adverse possession of registered land based on possession, with factual possession being the most complex element.

Factual possession must be evidenced by a sufficient degree of exclusive physical control. There is much case law in the area that centres on control of the land in question with enclosure being considered the strongest possible evidence of possession i.e. fencing off the land. Although case law has gradually become more lenient over the years (with one case acknowledging that physical exclusion is not the be-all and end-all of a successful claim), the recent Court of Appeal decision in Thorpe v Frank [2019] EWCA Civ 150 widens the grounds required to establish factual possession of land.

Brief facts of the case

Mrs T owned bungalow A, was a semi-detached bungalow that shared an open forecourt with bungalow B. She arranged for the repaving of an area of the forecourt that bungalow A and M shared. 27 years later, she arranged for the paved area in question to be fenced off. Mrs T later applied for adverse possession. The owners of bungalow B objected.

There are no previous cases where the repaving of an open plan forecourt could amount to possession to support a claim for adverse possession. However, making physical changes to the surface of land has been considered a material factor in several cases. In this case, as open land was concerned, absolute physical control is not always possible and would not have been here. The Court of Appeal held that by paving the land with a permanent surface material, Mrs T had a clear assertion of possession of the land and enclosure was not an absolute requirement.


Thorpe states that complete exclusion of all others is not the only way that factual possession can be established. Instead, regard should be had to the nature of the land and all the circumstances of the case. Furthermore, when testing for factual possession, it is necessary to ask if the possessor is using the land in a way that might be expected of an occupying owner; if that question is answered in the affirmative, factual possession will most likely be established.

If you need advice in relation to claiming adverse possession of land, please do not hesitate to contact our expert solicitors on 01935 382 680.

Posted in: Dispute Resolution