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Whose pitch is it anyway?

View profile for Helen Porter
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Acquiring land by adverse possession is the process by which a person who is not the legal owner of the land can become the legal owner by possessing the land for a specified period of time.  Here we review a recent case and the implications this has on the future of land possession.

There are two elements to a claim for adverse possession, which are:

(1)   Uninterrupted factual possession of the land by the claimant for the requisite period – which is either 10 or 12 years depending on whether the land is registered or unregistered

(2)   Intention on the part of the claimant to possess the land during that period of possession.

In the recent case of Mitchell v Watkinson [2013] EWHC 2266 (Ch), the representatives of a cricket club succeeded in proving adverse possession to the land used by the club…wickets and all.

In order to understand the ruling in this case, it is necessary to look back at the history of the land.

The Claimant (M) sought possession of land, which had been used by the cricket club since 1947.

The land was originally owned by M’s father-in-law (X).  X transferred the land to his son (L) in 1947.  Later the same year X entered into a written tenancy agreement with the trustees of the cricket club.  The trustees paid rent to X at first and then to L when they were notified of the transfer.  The last trustee of the club died in June 1974 and the tenant from that date was the representative of the last trustee’s estate.

The last rent payment for use of the land was made in October 1974.  In 1975 part of the land was sold by L to the members of the cricket club.  L died in 2009 and M became the registered owner of a southern section of the land and sought possession.

The Judge found that the June 1947 agreement between X and the trustees was effective even though X did not have title to the land at the time; however it was not binding on anyone who wasn’t a party to the agreement.  L was not therefore bound by the agreement.

Having said that, there had clearly been a relationship of landlord and tenant between L and the trustees, created by the payment and acceptance of rent.  Although there was no written agreement, by his conduct, L had granted the trustees a tenancy.

Where there is not a ‘relevant lease in writing’, in order to work out when the tenancy ended we need to turn to the Limitation Act 1980.  In accordance with the Act, the tenancy is treated as determined and the Landlord’s right of action to recover the property accrues on the date of the last receipt of rent.  In this case, time starts to run from October 1974.

The Judge was therefore able to conclude that the cricket club had continued in possession of the land from the date the tenancy ended in 1974 for the required period of 12 years.  L’s title had in fact been extinguished in 1986 and the club was entitled to possessory title to the land.

If you would like advice on adverse possession, you can contact the Commercial Team on 02380 717 717.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.