Paved with good intentions

Does it really matter if your neighbour kindly assumes responsibility for the upkeep of part of your land? Say, for example, the paving stones on your patio are broken and cracked and your neighbour kindly levels the area and repaves the patio. The patio has been improved and at no financial cost to you so no harm done, right?

That’s what happened in the case of Thorpe v Frank and another [2019] EWCA Civ 150. The owner of House A repaved the forecourt of his neighbour’s land at House B. The owner of House B didn’t object and several years passed. When House B was eventually sold, the owner of House A took it upon himself to enclose the paved area with a fence. He then applied to be registered as the owner of that land; the land that he had so kindly paved years previously in an act of touching generosity.

His application was initially successful. But it was subsequently challenged and the application was rejected. The tenacious neighbour, showing the same zeal with which he had paved his neighbour’s land in the first place, appealed to the Court of Appeal. And the Court of Appeal allowed his appeal. It was finally decided that the land was indeed now owned by the owner of House A by way of adverse possession.

Adverse possession is the process by which a person who is not the legal owner of land can acquire ownership of land by possessing or occupying land for a requisite period of time. The possession or occupation can take many forms. But the possession should usually be uninterrupted. In relation to the paving in the Thorpe case, the possession was through the laying of the paving stones and was self-evidently uninterrupted.

The novel feature of this case, and as distinct from many previous cases, was that the person claiming adverse possession was not doing so on the basis of physical enclosure of the land. The land in question was actually open plan in character. It has long been assumed that one must enclose land and prevent others from passing over it in order to claim adverse possession. Not so according to the Court of Appeal. The Court ruled that it was sufficient to show that there had been a degree of exclusive physical control over the area. The courts found that by paving the land with a permanent surface material, the neighbour had demonstrated a clear assertion of possession.

Controversially, it did not matter that the paved area was actually an access way for House B, nor that the owner of House B continued to cross over it.

This is an interesting case because it shows how easily possession can be lost to a third party even when, technically, the land is still being used or accessed by the legal owner.