Paving the Way for Adverse Possession of Land: Factual Possession
What is adverse possession?
Adverse possession allows a person who has been in possession of land for a specified period of time, who has no interest in that land, to adversely take the interest in the land if they fit within a number of limitations. The Statute of Limitations, 1957 governs the law on adverse possession in Ireland.
Adverse possession requires an applicant to show factual possession of land for the requisite period without the owner’s consent and with the necessary intention to possess.
The long standing test concerning the factual possession of land has been challenged in the recent UK case of Thorpe v Frank & Anor  EWCA Civ 150 where the Court of Appeal found that repaving a forecourt constituted sufficient possession in a successful claim for adverse possession.
The court held that while the physical enclosure of a piece of land is an obvious way to take possession, it is not an absolute requirement. A sufficient degree of control depends upon the nature of the land and the manner in which the land is used and enjoyed. This decision appears to widen the grounds required to establish factual possession.
Thorpe v Frank: Facts
In 1986, the owner of a house, Mrs Thorpe, repaved and altered the surface level of a triangle of land forming part of a neighbouring property without objection from that property’s owner. The land lay to the front of Mrs Thorpe’s house and adjacent to her driveway and was used since 1986 to provide a place for her to park. Mrs Thorpe also regularly maintained the land.
Mr and Mrs Frank became the registered owners of the adjacent property in 2012. In 2013, Mrs Thorpe fenced off the paved area in question and later applied to be the registered owner of the paved area on the basis that it had been acquired by adverse possession. The Land Registry referred her application to the courts.
Mrs Thorpe succeeded in the first instance. However, that decision was overturned by the Upper Tribunal who ordered that the lands in dispute be removed from Mrs Thorpe’s registered title and transferred to Mr and Mrs Frank. Mrs Thorpe appealed to the Court of Appeal.
Decision of the Court of Appeal
Mr and Mrs Frank argued that the repaving merely amounted to temporary trespass by Mrs Thorpe and that she had no control over the land until the erection of the fence in 2013.
However, the court recognised that making physical changes to the surface of land is a material factor in determining whether adverse possession had taken place and held that the repaving in this case established factual possession.
Here the land was open because of its location in front of two houses at the corner of a cul-de-sac and was subject to estate covenants designed to prevent the land from being built upon or fenced. Mrs Thorpe’s repaving of the land had asserted an intention to assume sufficient control over it. It did not matter that, after the work had been done, the neighbouring owner could continue to pass over the area as before.
Although this case is fact specific, it demonstrates that the lack of fencing or enclosing over an area of land will not specifically prevent a claim for adverse possession. The Irish Courts in assessing the factual possession element of adverse possession may draw on the persuasive authority of this UK decision and could potentially result in more cases in Ireland making successful claims for adverse possession, provided the person making the application is still able to prove they have acted in a way typical of an owner of that land.
For further information on adverse possession, please contact our Cork or Dublin offices.