Adverse possession, the principle that simply by occupying land for a certain period of time you might acquire legal ownership of that land, is an attractive legal idea to the layman. In practice, and following changes to the law by the Land Registration Act 2002, obtaining adverse possession of land where a legal owner has been registered is now very difficult, but the old principles still apply over unregistered land.
These principles require that a party which claims adverse possession demonstrates that, for at least 12 years beforehand, they had both actual possession of the land, and intended to possess the land to the exclusion of all others. The second point is often where applications fail. It is not enough to simply make use of the land – the applicants must show that they acted as exclusive owners of the land, for example by fencing it off to prevent access by others.
A recent case involved an unusual claim for adverse possession. In Port of London Authority v Mendoza, Mr Mendoza was seeking possession of a stretch of Thames riverbed and foreshore on the basis that his boat had been moored there for over 12 years by the time the Authority sought to register its title to the land.
Whilst this may seem something of a desperate gambit by Mr Mendoza, he was successful at the first tribunal hearing, forcing the Authority to appeal. Mr Mendoza’s factual possession of the land, though disputed, was accepted by the Upper Tribunal, notwithstanding the tides and currents which made his occupation of it somewhat mobile. The point he failed at, as with so many adverse possession applications, was in demonstrating his intention throughout the relevant period of claiming a permanent and exclusive ownership. The mooring of a boat, the Tribunal decided, does not constitute in and of itself an unequivocal intention to possess the mooring site in the same way as, for example, fencing off a plot of land. Mr Mendoza’s residency was insufficient to demonstrate such an intention, and the Upper Tribunal found for the Authority.
Could a case with slightly different facts succeed? If the boat owner took steps beyond simply residing on the boat for the relevant time period, entirely possibly. A dispute known to Blacks resulted in a victory for the boat owner on the basis that he paid Council Tax and had utilities connected to the boat, which the local authority conceded constituted a sufficiently permanent occupation without referring the matter to a tribunal. In similar cases, it may be the steps the mariners have taken on land that determine their right to ownership on the water.
If you are involved in any litigation or court proceedings, Blacks Solicitors can assist. Please contact Luke Patel on 0113 227 9316 or email him at “LPatel@LawBlacks.com”
