Adverse possession – is fencing land necessary?
In order to be successful in an adverse possession claim it must be shown that:
1. There has been uninterrupted ‘factual’ possession of the land by the applicant for the ‘requisite period’ (this is usually between 10 and 12 years); and
2. The applicant must show that they intended to possess the land during this period.
One of the most effective ways of demonstrating an intention to possess land is through the erection of fencing. However, as the recent case of Thorpe v Frank and another  EWCA Civ 150 demonstrates, this is not the only method…
The parties in this case were neighbours – the owners of properties 8 and 9 on the same road. The owner of number 9 paved an area of driveway belonging to number 8. The owner of number 9 chose all relevant materials and spent a fortnight laying the paving. The owner of number 8 didn’t object to the paving works taking place and several years passed. The owner of number 8 then sold the property, which resulted in number 9 deciding to fence off the disputed parcel of land claiming adverse possession. A dispute then ensued with the new owners of number 8.
The case eventually made its way to the Court of Appeal, with the key issue being whether the paving of the land could amount to possession of it.
In this case, the properties were on an open plan estate and, as such, were subject to restrictive covenants preventing the erection of fences beyond the building line. The court attached weight to this in reaching their decision, finding that it was not necessary for the owners of number 9 to fence off the land in order to demonstrate possession; this was despite the owners of number 8 continuing to pass over the land.
Whilst the court acknowledged that enclosure of land is an obvious way of taking possession, it is not an absolute requirement.
The judgment in Thorpe is important, as it demonstrates just how easily possession of land can be lost, even when the land in question continues to be used by the original owner. This case is particularly relevant in situations where an application is made over land, or sections of land, where the erection of fencing is prevented or restricted; such as on an open plan estate.