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A recent decision of the Upper Tribunal is a reminder of some key principles for an adverse possession claim: you must look at the land in question as a whole, not in separate parts, and consider how, in practice, it can be used together.
Kirkman v Bradshaw Pub Company Ltd [2025] UKUT 110 (LC)
The background
The case concerned a former washhouse and “Ashes Places” (areas for depositing ash from coal fires) historically shared by a row of cottages. Mr Kirkman had owned one of the cottages since 1988 and in 2021 he applied for first registration of the washhouse, Ashes Places and the area between them on the basis that he had acquired them through adverse possession. Bradshaw Pub Company, owner of one of the other cottages, objected on the basis that it had the right to use the land.
Mr Kirkman had secured the washhouse door with a padlock since 1988, paid the electricity bill and used it for storage. He had also used the Ashes Places for storage and parked a trailer between the two buildings.
The legal principles and the decisions
To have acquired the land by adverse possession, Mr Kirkman had to demonstrate that he had intended to possess it, and that he had been in possession of it for at least twelve years.
In the First-tier Tribunal, the judge decided that Mr Kirkman had been in possession of the washhouse, but not the Ashes Places or the area between them. He had not used the whole area for storage, and the land was not entirely enclosed, so he could not show the appropriate degree of physical control of the land.
Mr Kirkman appealed to the Upper Tribunal, which found in his favour. The judge found that, in dealing with the land in separate sections, the First-tier judge had made two errors:
- First, the judge should have considered the land Mr Kirkman claimed to have been in possession of as a whole, and the functional relationship between the different areas.
- Second, the Judge should have considered the characteristics of the Ashes Places and the area between them and the washhouse, and how they would or could be used by an occupying owner.
The practicalities of possession: enclosure isn’t everything
The Upper Tribunal judge concluded that the land as a whole had a common character and that possession of the buildings could be treated as evidence of possession of the narrow area between them. Padlocking the door of the washhouse was not only the exercise of control over the building itself, but it also reflected control of the areas immediately outside it.
The judge emphasized that one had to consider how the Ashes Places and the area between them and the washhouse could be used in practice and how one would expect an occupying owner to deal with them in the circumstances: “the practicalities of possession.” There is a danger of thinking that enclosure is everything in adverse possession, and that, if you do not enclose the land, you cannot demonstrate adverse possession. That is not the case: the judge here concluded that, if the characteristics of the land are such that an occupying owner would not have been expected to enclose it, the failure of the applicant to enclose it is unlikely to be crucial and may even simply be irrelevant.
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