Court finds defendant has right of adverse possession and dismisses trespass claim

Tim Baldwin of the Garden Court Housing and Planning Law Teams represented the Defendant, instructed by Gregory Horne of Hodge Jones and Allen.

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The Claimant, Elitestone Ltd, a real estate developer, brought a claim for possession of land (Unit 16) against the Defendant, on the grounds of trespass, as he allegedly did not have their permission to be on this land.

Background

The Defendant was living on a chalet located on the land, and had been initially linked to prior litigation, which led up to the House of Lords case Elitestone Ltd v Morris; Elitestone Limited v Davies [1997] 1 WLR 687. Stephen Cottle of Garden Court acted for the Defendant in the 1997 case.

This claim, in respect of Unit 16, commenced in about 1991. This involved a possession claim against other alleged trespassers on Unit 16, where a possession order was made in 1994, but there had been no enforcement proceedings.

The Defendant argued he had moved onto the land and taken up possession of Unit 16 around August 1991, due to the purchase of a licence from the previous occupier, Mr Morgan. However, it transpired that Mr Morgan had no right or licence on the land and was considered a trespasser by the Claimant. Therefore, the Defendant had no permission to be on the land.

However, no enforcement proceeding had been brought by the Claimant. In 2022, the Defendant served with a notice of trespass, and possession proceedings for trespass brought on 26 November 2024. The Chalet had burnt down in March 2024, leaving the Defendant homeless, but he had sought to secure the land against the Claimant and all others, until he could rebuild the chalet.

Under section 15 of the Limitation Act 1980, there is a 12-year time limit for bringing action to recover any land in England & Wales.

The Defendant claimed he has been in adverse possession for a period of over 12 years, since 1991. According to this argument, the Claimant’s ability to recover possession expired after 12 October 2003, due to the enactment of section 97 of the Land Registration Act 2002 (‘2002 Act’), which meant the Defendant is entitled to be entered as the new proprietor of Unit 16.

The Defendant treated Unit 16 as an occupying owner would, including carrying out renovations, preventing access of others and remaining in exclusive adverse possession of Unit 16 and its immediate curtilage since late summer 1991.

Accordingly, Unit 16 as a registered estate in land was already, by then, held on trust by the Claimant for the Defendant, by virtue of section 75(1) of the Land Registration Act 1925. Under Schedule 12, paragraph 18 of the 2002 Act, the Defendant was also entitled to act in defence against a possession claim as they were entitled to apply to be registered as proprietor.

As the Defendant had possessed Unit 16 for over 28 years prior to the Claimant’s possession claim, the Defendant has enjoyed an uninterrupted right of way to Unit 16 via the rest of the Claimant’s land, to the public highway.

The Defendant made a counterclaim to register a declaration to be the proprietor, an order to rectify the land registry and for proscribed rights of access. The Defendant invited the Court to dismiss the Claimant’s claim for, and in the case of finding a right of adverse possession, grant the relief sought set out in the Counterclaim.

The Claimant had denied the Defendant’s case, alleging that his evidence was insufficient and unreliable, including contrary to the electoral roll, inconsistencies in benefit claims, lack of precise evidence in his occupation, and unreliability of his oral evidence. The Claimant also argued that the Defendant first appeared in 1997, was a professional protester, and living of adjacent land in 1997.

2026 Hearing and Judgment

Following a three-day hearing of evidence on 9 April 2026, HHJ Beard gave an oral judgment, making findings of fact on the evidence that the Defendant had been in uninterrupted possession of Unit 16 from August 1991. HHJ Beard found breaks in possession did not amount to abandonment and that the Defendant had sought to secure and improve the land.

Therefore, the elements of demonstrating adverse possession were made out as the Defendant has factual possession of the land, the necessary intention to possession of land, without the Claimant’s consent. Further, as the Defendant’s possession of Unit 16 had been at least 12 years prior to 13 October 2003 (prior to the Land Registration Rules 2003) he was entitled to the declaration and registration as proprietor. Thus, the claim for possession was dismissed and the Defendant’s counterclaim for adverse possession allowed with declarations and costs.