High Court judgment on adverse possession
A squatter who is willing to give up possession if asked to by the owner is in “adverse possession”.
That was the view of HHJ Marshall QC, sitting as a deputy judge of the Chancery Division, in Alston & Sons Ltd v BOCM Pauls Ltd [2008] PLSCS 347. She allowed a claim by Alston that it had been in adverse possession of arable land for more than 12 years, and so had acquired title to it.
In order to be in “adverse possession”, a squatter must have the necessary “intention to possess”. The issue of whether a person who wrongly believes he has the owner’s permission to use the land has such an intention has been considered by a number of judges, with inconsistent results.
In Trustees of the Michael Batt Charitable Trust v Adams (2001) 82 P&CR 32, Laddie J held that a tenant who farmed land believing, wrongly, that it belonged to his landlord and that he had permission to use it, did not have the intention to possess. Similarly, in Clowes Developments (UK) Ltd v Walters [2006] 1 P&CR 1, Hart J held that a person who intends to remain in possession for his own benefit so long as the owner permits him to do so does not have the necessary intention to possess.
However, in Wretham v Ross [2005] EWHC 1259, David Richards J held that a squatter who has the erroneous belief that he has the consent of the owner does have the intention to possess.
In Alston, HHJ Marshall QC reviewed those previous decisions. She accepted the arguments of Stephen Jourdan, appearing for Alston, and held that there is no requirement that a squatter must intend to dispossess the owner. All that is required is that the squatter intends to possess for as long as he can, for his own benefit. It does not matter that he wrongly believes that the owner has consented to his use of the land. Nor does it matter that he intends to give up possession when the owner asks him to.
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