What is Factual Possession and why is it important?

Factual possession is one of the key elements an individual will need to consider when making an application to the Land Registry for registration based on adverse possession.

Although there are other requirements which will need consideration, an application without sufficient evidence of factual possession will not be successful.

If an individual occupies land in a prescribed way for a certain number of years, this includes being able to show factual possession, then it will be possible to make an application to the Land Registry for the land to be registered in their name. Factual possession simply means that an individual is treating land as their own by exercising a degree of physical control over the land to which their application relates. Put another way, the person in possession who is making the application must have been treating the land as any occupying owner would have been expected to treat it.

Whilst it is not the only requirement that will need to be present, factual possession is something the Land Registry will certainly look for when deciding on the merits of your application.

Each case will be determined by the Land Registry on its own merits, however previous cases have provided guidance as to what amounts to sufficient evidence of factual possession.

A recent case of note is Thorpe –v- Frank and Another [2019] EWCA Civ 150 in which the Court of Appeal confirmed that repaving of a forecourt was a sufficient act to prove factual possession. In this case Mrs Thorpe had made the area readily appear to be part of her curtilage by repaving it. It was concluded that on this basis there could hardly be a clearer act of possession.

The Judge dealing with the case went on to add that if there are properties with adjoining open forecourts, as in this case, and one owner takes it upon himself to replace the surface material to alter the level and relay a new surface this is precisely the sort of action that an occupying owner would normally carry out on land of this character, even if his neighbour continued to pass and re-pass over part of the area as before. It did not matter that after the works were complete the neighbour, who was the paper title owner of the land, could still pass over this area as before.

It is important to remember that each case should be considered on its own merits to determine whether factual possession can be shown and whether the other requirements for adverse possession can be met.

If you are thinking about making an adverse possession type claim, we can assist. There are strict deadlines that apply, therefore it is important to ensure that you receive expert advice at an early stage. As specialists in these cases we act for clients nationwide to resolve their legal difficulties and to increase their prospects of success.

Call us on 0800 088 6004 for more information.