Court of Appeal rules on new Adverse Possession case, reinforcing the principles of Zarb v Parry

Ref. Devanney v LB Hounslow [2012] EWCA Civ 1660 and Ref. Zarb v Parry [2011] EWCA Civ. 1306 [2012] 1 WLR 1240

In this most recent case, Devanney v LB Hounslow, the owner of a road side café van occupied land owned by LB Hounslow on the edge of Heathrow Airport. Hounslow brought a claim for possession against Mr Devanney, who then sought to prove Adverse Possession in his defence.

Mr Devanney’s chance of success was to prove that he had 12 years uninterrupted possession of the land from October 1991 (ie. 12 years prior to the Land Registration Act 2002 coming into force on 13 October 2003).

As a result, he claimed that he had started trading on the land in 1990 and had done so uninterruptedly since then, or at least had his van and some sheds there, while the business was run by his brother between 1900 and 1996. Unfortunately for him, the case fell apart on the basis of aerial photography that clearly showed the strip of land as empty.

Nevertheless, the case reminds us of the principles surrounding Adverse Possession, which were clarified a year or so ago in Zarb v Parry. In particular, that case defined the court’s viewpoint on a party physically interrupting the continued use of land by an occupier claiming adverse possession (first outlined in condition (c.) of Schedule 6 paragraph 5(4) of the 2002 Land Registration Act – ‘the Act’). It also established whether it is ‘reasonable’ to believe you own land when you have been notified in writing that you do not.

To the first point, the only matter standing in the way of proving sufficient continued occupation was an event in 2007, two years before proceedings were brought to claim possession. In July of that year, the Zarbs had entered on the Parrys’ lawn and begun banging posts into it. They cut down a tree, tore up some fencing, and unwound a surveyor’s tape so as to delineate the boundary for which they contended. Mr Zarb stated clearly that he was taking the land by force as it belonged to him.

Crucially, after some twenty minutes of angry confrontation and threats by the Parrys to call the police, they left. The judge held that by leaving the land they had failed to wholly exclude the ‘wrongful’ occupier from possession. It is an accepted legal principle that opposing parties cannot both be in possession of the same land at the same time, thus half measures will not do when reclaiming land, even when doing so with absolute title.

As to the second point, the Parrys were notified after the events of July 2007, by letter, of the Zarbs’ contentions as to the boundary and their paper title. For another two years they retained possession until proceedings were brought by the Zarbs, which brings into question whether their “belief” thereafter that they owned the strip in question could still be “reasonable” for the purposes of Schedule 6 paragraph 5(4) of the Act.

The court stated that for the Parrys to still believe they owned the land was reasonable, particularly in light of a joint surveyors’ report that supported their position.

A new precedent therefore arose from this:

The fact that the boundary is known to be disputed, which automatically raises questions that you may be wrong about the title position, does not necessarily make your belief to the contrary ‘unreasonable’ – regardless of whether at a later stage you are proved to be incorrect.

As such, the Parrys retained the land and a new set of legal precedents was established for cases like Devanney v LB Hounslow to follow.

As an interesting aside, the Master of the Rolls at this case indicated that it would have been a “close run thing” if the Zarbs had continued their efforts and erected a fence to keep the Parrys out. The question, therefore, is whether the law is now supporting landowners taking into their own hands the reclamation by force of land they believe to be theirs.

Hopefully we do not see cases in the coming years where landowners have been encouraged by this to be unduly reckless in their actions.

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