Adverse possession and intention to possess land with a right of way (Amirtharaja v White)

24 February 2021

The claimants claimed title to a passageway between two commercial buildings by reason of adverse possession. They claimed the inclusion of the land within the title to the commercial buildings was mistaken and sought rectification of the register so as to include the land within their title.

The judge at first instance held that the predecessor in title had been in adverse possession of the land and the inclusion of the passageway within the title to the commercial buildings was a mistake. On appeal, the court looked at the use of the land necessary to demonstrate an unequivocal intention to possess, and whether use consistent with a right of way was sufficient.

Amirtharaja and another v White and another and [2021] EWHC 330 (Ch)

What are the practical implications of this case?

The case reaffirms the authority of Littledale v Liverpool College [1900] 1 Ch 19 that the installation of a locked gate by a person with the benefit of an easement of way over the land to which the gate controls access does not evidence the unequivocal intention to possess that land which is necessary to support a claim to adverse possession. Littledale was previously thought to be questionable in light of the decision of the House of Lords in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30.

What was the background?

In 1977, the claimants’ predecessor purchased Hollis House and the title to it was registered. It did not include the passageway.

In 2005, the owners of the two commercial buildings sought to register their title and to include within it the passageway. They could not produce the title deeds and applied to register their title on the basis of their own and their father’s uninterrupted possession over 40 years.

Upon inspection by HM Land Registry’s surveyor, it was noted that the passageway was inaccessible to the applicant, that it was blocked at both ends (although only by rubbish at the Hollis House end) and appeared not to have been used for many years.

In 2017, the claimants bought Hollis House. The transfer made no reference to the passageway. Shortly thereafter, the defendants purchased the commercial buildings with the intention of redeveloping them as a single unit and believing that the titles included the passageway, even though upon inspection they had been unable to gain access the passageway.

A dispute quickly developed as to the ownership of the passageway when the claimants applied for and eventually obtained permission to develop it.

At trial, the predecessor’s evidence was that there had been a gate, which he had kept locked, at the far end of the passageway which was open where it abutted the garden at Hollis House. He had used the passageway for the purpose of occasional access and for storage. There was further evidence that between the 1950s and 1970s, the passageway had been the principal means of access to the claimants’ land during which time the gate had been unlocked. The evidence of the Land Registry’s surveyor, upon inspection in 2005, was that the passageway seemed not to have been used for many years.

What did the court decide?

Having considered the key authorities, the judge held that the House of Lords in Pye had not overruled Littledale and that it remained authority for the proposition that use of land consistently with an established right of way did not demonstrate an unequivocal intention to possess that land.

The predecessor’s use of the land had been equivocal—it was done with the intention of protecting the right of way rather than possessing the passageway. His lack of the requisite intention to possess the passageway was further demonstrated by his failure to attempt to convey it to the claimants. There was accordingly no substantive mistake on the register which required correction, even though there was no admissible evidence before the court that the applicants for first registration were in possession of the passageway in 2005 or that they were entitled to the paper title to it; the court having refused to admit fresh evidence to that effect.

It was an oddity of the claim that the first claimant had died before the claim was even issued. That fact had been known to all the parties (although not to the claimants’ counsel) at all times, yet no one brought it to the attention of the court until new solicitors were instructed by the appellants after judgment at first instance was handed down. The appellants claimed that this was an abuse of the process which ought to result in the claim being struck out. The court rejected the claim that the claimants’ default had been contumelious and held that it was not even an abuse of the process, the claimants not having gained any advantage as a result.

Case details

  • Court: Chancery Appeals, Business and Property Courts of England and Wales, High Court of Justice
  • Judge: Mr Justice Michael Green
  • Date of judgment: 19 February 2021

This article was first published by Lexis®PSL on 24 February 2021.

Max Thorowgood represented the appellants.