27 May 2016

Shulmans successful in Court of Appeal case on adverse possession

It is often thought that an essential element of any claim to have acquired land by adverse possession is that the land is physically fenced or otherwise enclosed by the claimant for a period of 12 years or more.

Following the recent decision in the case of Hilary Kathryn Kirkby v Marcus Alexander Heaney, in which Robert Whitehead of Shulmans represented the successful party, it seems that this is no longer an essential requirement. In this case the land concerned was, for most of the preceding twelve-year period, unfenced.

The facts of the case are that Mrs Kirkby purchased a derelict property known as The Coach House in June 1999, with the intention of renovating it and converting it into a dwelling. Adjacent to The Coach House was a strip of overgrown land which stood between the Coach House and an adjoining lane. On the other side of the lane is The Woodshed, a property owned by Mrs Kirkby’s neighbour, Marcus Heaney.

Following her purchase, Mrs Kirkby’s builders were on site from July 1999 until December 1999, undertaking the renovation works and utilising the strip of land for storage of materials and erection of scaffolding, etc. From about January 2000 Mrs Kirkby took occupation of The Coach House and commenced landscaping the disputed strip of land, onto which the new front door of The Coach House now opened. Twelve tonnes of topsoil were imported onto the land, stepping stones were laid from the front door to the lane, stone troughs already on the land were moved and planted up, small stones were added along the edge of the grass to deter cars from driving over it and a large name stone was erected on the land close to the door of The Coach House. Finally, two hard-standing parking bays were created which Mrs Kirkby then used. Thereafter, Mrs Kirkby and her husband continued to use the land and to maintain it as their own. Some years later the Kirkbys erected a fence around the disputed land.

In 2012 Mr Heaney paid £10,000 to purchase what he believed to be the paper title to the lane and the disputed land. He then requested the Kirkbys to remove all of their possessions from the land. However, Mr Heaney’s application to register his ownership of the land was rejected by the Land Registry.

At that point Mrs Kirkby applied to be registered as proprietor of the disputed land based on adverse possession of that land for the period from June 1999. That application was approved in principle by the Land Registry and (following objections lodged by Mr Heaney) the First Tier Tribunal found that Mrs Kirkby was entitled to be registered as proprietor (see the decision of the First Tier Tribunal).

Mr Heaney appealed to the Upper Tribunal but was unsuccessful (see Appeal to Upper Tribunal part 1 - Kirkby v Heaney 2014 and Appeal to Upper Tribunal part 2 - Kirkby v Heaney 2015). He then sought permission to appeal to the Court of Appeal, which was refused.

The Court of Appeal has now confirmed the decision of the lower tribunals, allowing Mrs Kirkby to claim title by adverse possession.

If you have any queries about this matter, please contact Robert Whitehead on 0113 297 7742 or at rwhitehead@shulmans.co.uk.