Pleading Adverse Possession

An unauthorised occupier of land may be able to acquire title to the land by adverse possession where they can demonstrate that they have had both factual possession of the land and the requisite intention to exclude the registered owner for a 12 year period. Possession with the consent (whether express or implied) of the owner can never amount to adverse possession. Prior to the implementation of the Land Registration Act 2002, adverse possession operated as a form of limitation defence. The 2002 Act changed the position so that adverse possession ceased to be a species of limitation but instead conferred a right on the occupier to apply to become the registered proprietor.

This was tested in the recent case of Healey v Fraine and others [2023] EWCA Civ 549

Mrs Healey was the registered freehold owner of a house in Manchester. In 2021, she issued possession proceedings against the defendants contending that they were trespassers. The defendants served a defence which alleged that they had found the property abandoned and had a defence of adverse possession.

Mrs Healey applied to strike out the defence, arguing that since the commencement of the Land Registration Act 2002, adverse possession was not a defence to a claim for possession but merely operated to confer a right to apply to the Land Registry to be registered as owner, and no such application had been made. In response, the defendants sought permission to amend their defence to contend that they had been in possession as licensees. They did not, however, abandon their argument of adverse possession, nor did they suggest it was advanced as an alternative argument. Mrs Healey opposed the application to amend, arguing that it was inconsistent to plead both that the defendants were licensees and that they also had a defence of adverse possession.

The Deputy District Judge granted the application to amend. The Circuit Judge allowed an appeal and refused permission to amend the defence; a person could not claim to be in adverse possession and to also to be a licensee and as such the amendment could not be permitted.

The Court of Appeal dismissed a further appeal. It was obvious that pleadings must be internally coherent; the proposed amendment presented two cases which were inconsistent with each other. A person who was in possession as a licensee was in occupation with the permission of the owner and could not therefore establish adverse possession.

Oliver Kew

Published on 06/07/2023