Thorpe v Frank & Anor

Factual and Procedural Background

This appeal arises from a dispute between Plaintiff and Defendants regarding ownership of a triangular plot of land ("the disputed land") adjacent to two semi-detached bungalows in a residential area developed in the mid-1960s. The Plaintiff originally acquired title to one property ("No. 9") in 1984, having previously been a tenant there. The Defendants became registered owners of the adjoining property ("No. 8") in 2012 by gift from a family member.

The Plaintiff claimed to have acquired the disputed land by adverse possession, asserting that she had controlled and used it as part of her property since at least 1986, when she repaved the land. The Defendants disputed this claim.

The First-tier Tribunal (FTT) found in favour of the Plaintiff, concluding she had factual possession and the requisite intention to possess the disputed land from 1986. The Defendants successfully appealed to the Upper Tribunal (UT), which reversed the FTT’s decision on the basis that the Plaintiff’s acts in 1986 were a temporary trespass and not possession. The UT ordered alteration of registered titles to reflect the Defendants’ ownership of the disputed land. The Plaintiff then appealed to the Court of Appeal.

Legal Issues Presented

1. Whether the laying of paving and the continued presence of that paving from 1986 constituted factual possession sufficient for adverse possession of the disputed land.
2. Whether the Plaintiff had the necessary intention to possess the disputed land.
3. Whether the acts carried out by the Plaintiff amounted to dispossession of the paper title owner under the Limitation Act 1980.

Arguments of the Parties

Appellant's Arguments

• The laying of the paving in 1986 and its continued presence constituted a clear assertion of possession and control over the disputed land.
• The Plaintiff had the requisite intention to possess from the time of paving, and the paving was a permanent alteration creating exclusive physical control.
• The UT erred in treating the paving works as a mere temporary trespass rather than an act of possession "for the future".
• The lack of physical exclusion of others (such as neighbours crossing the land) was consistent with the nature of the open-plan residential environment and did not negate possession.
• Legal authority supports that paving and physical alteration of land can constitute possession, even absent full enclosure or exclusion.

Respondents' Arguments

• The 1986 paving works were a temporary trespass lasting only about two weeks and did not amount to possession.
• The Plaintiff herself admitted not having control over the land until the erection of a fence in 2013.
• The disputed land was commonly used as an access route to the Defendants’ property, inconsistent with exclusive possession by the Plaintiff.
• The UT’s finding that there was no factual possession after the paving was laid was correct.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the statutory framework of the Limitation Act 1980, emphasizing that adverse possession requires factual possession and intention to possess without consent of the paper owner. The court relied heavily on the authoritative speech of Lord Browne-Wilkinson in JA Pye (Oxford) Ltd. v Graham, which clarified that possession is exclusive and that ouster or forcible exclusion is not necessary.

The court accepted the FTT’s uncontested factual findings that the Plaintiff laid paving in 1986, creating a permanent surface over the disputed land, and that this was a significant physical alteration amounting to an assertion of possession. The presence of the paving continuously thereafter was also important.

The court rejected the UT’s conclusion that the paving works were merely a temporary trespass. Instead, it found that the paving constituted physical possession appropriate to the nature of the land—an open-plan forecourt subject to covenants restricting enclosures. The court noted that full exclusion of others was not required in such an environment.

Precedents including Powell v McFarlane, Treloar v Nute, and Williams v Usherwood were applied to support the principle that acts such as paving and other physical changes can constitute possession, depending on the land’s nature and context.

The court also considered the Defendants’ argument that the land was used as an access route, but found that the Plaintiff’s incorporation of the land into her curtilage by paving was consistent with possession, even if the Defendants or others occasionally crossed it.

In sum, the court concluded that the Plaintiff had established factual possession and the necessary intention to possess from the time of the paving in 1986, satisfying the requirements for adverse possession under the Limitation Act.

Holding and Implications

The Court allowed the Plaintiff’s appeal and restored the FTT’s decision that the Plaintiff had acquired adverse possession of the disputed land from 1986.

The immediate effect is that the Plaintiff’s registered title to the disputed land is upheld, and the earlier order of the UT altering the registered titles in favour of the Defendants is set aside. No broader precedent was established beyond the application of existing legal principles to the facts of this case. The decision underscores that physical acts of possession, such as permanent paving, can amount to adverse possession even in open-plan residential environments where full exclusion is impractical.