[2025] UKUT 110 (LC)

The relevant legal principles were not contentious before the FTT.

To be entitled to first registration it was for Mr and Mrs Kirkman to demonstrate both factual possession of the Disputed Land, and an intention to possess it, for any 12 year period expiring prior to their application.

In Powell v McFarlane (1977) 38 P & CR 6 452 at 470-1, (cited with approval by Lord Browne-Wilkinson in J A Pye (Oxford) Ltd v Graham [2003] UKHL 30, at [41]) Slade J explained the first of these requirements, factual possession, in this way:

As for the mental element of possession, the intention to possess, this requires an "intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow" (Slade J in Powell at 471-2, cited with approval in Pye, at [43]).

The evidence of factual possession will normally be sufficient to demonstrate the necessary intention to possess; the Judge said that this will “often” be the case but will not always be so. A sentence from Lord Hutton’s concurring speech in Pye was cited for that proposition; the full passage, which came after discussion of the use which owners of the disputed land might have been expected to make of it, was as follows:

“76.

I consider that such use of land by a person who is occupying it will normally make it clear that he has the requisite intention to possess and that such conduct should be viewed by a court as establishing that intention, unless the claimant with the paper title can adduce other evidence which points to a contrary conclusion. Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.”

An intention to possess must be established by evidence in cases where the actions of the occupier relied as showing factual possession are equivocal, as Slade J explained in Powell at 472 (cited with approval by Lord Hutton in Pye, at [77]):