The case of Gerhard Alan Rees v (1) Devon County Council (2) Brayford Parish Council, heard by the Land Registry Adjudicator in 2009 concerned issues Adverse possession – a strip of land between Mr Rees’ title and the highway – issues of factual possession and intention to possess – issue as to whether the disputed land was also part of the public highway
The disputed land separates the main road from a plot of land on which there stands a detached single storey property. Mr Rees was the registered leasehold proprietor of the yellow land.
Mr Rees claimed to be registered as the proprietor of the disputed land with a good leasehold title. This is on the basis of encroachment by successive leasehold owners of the disputed land for a period in excess of 12 years. His case in outline was that since at least 1952 every leasehold owner of the yellow land had used the disputed land as the forecourt to the garage, and has been in possession of the disputed land whilst using it as an integral part of the yellow land.
Brayford Parish Council (“the parish council”), the second respondent, was the owner of land immediately to the east of the disputed land. It did not claim to have a paper title to the disputed land. The parish council objected to Mr Rees’ application on the grounds that:
(1) he has not demonstrated 12 years’ adverse possession (“the possession issue);
(2) in any event, the disputed land is part of the public highway and therefore title to it cannot, as a matter of law, be acquired by adverse possession (“the highway issue”).
Mr Rees made an application dated 20 October 2006 to be registered as the first proprietor of the disputed land on the basis of adverse possession. The original application was supported by a statutory declaration sworn by Mr Rees on 19 October 2006. Because the disputed land is unregistered land the new regime governing adverse possession, established by the Land Registration Act 2002, does not apply.
The relevant statutory provisions are as follows. Section 15 of the Limitation Act 1980 (so far as material) provides:
(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him, …
(6) Part 1 of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.
As a matter of law, a title cannot be acquired by adverse possession to land over which a public right of way exists. This is because any act of possession relied upon would be an obstruction of the highway and an offence under section 137(1) of the Highways Act 1980.
The Adjudicator was satisfied that, for at least 12 years prior to the original application, Mr Rees and his predecessors in title have been in possession of the disputed land and no one else has. This is the sort of case where regular parking on a confined space warrants a finding of possession.
The parish council argues that even if Mr Rees can show 12 years’ possession of the disputed land, he cannot succeed because the disputed land is part of the public highway. Mr Rees denies that the disputed land is part of the public highway. The case offers a detailed explanations as to what is a public highway.
The Adjudicator directed the Chief Land Registrar to cancel the original application.
Click here for full details of this case on adverse possession.