England and Wales Land Registry Adjudicator

(1) David Frederick Clewer (2) Jean Carol Clewer v Patricia Ann Scammell (Adverse possession : Factual possession) [2018] UKFTT 209 (PC) (25 March 2018)

Applicants claimed adverse possession under the transitional provisions of a triangular section of land that, to all intents and purposes, had been part of their front garden since they purchased their property in 1980. The land was within the registered title of their neighbour, the Respondent, but the Respondent and her late husband had erected a fence effectively excluding themselves from possession of the land in the 1970s. The Respondent argued that the Applicants’ occupation of the land was by consent, which was dismissed on the facts. She argued that because her sewer ran under the land and there was a manhole for accessing the sewer within the land, the Applicants were not in factual possession of it. That argument was rejected on the basis that the Applicants could have and had obtained ownership by adverse possession subject to an implied easement of drainage in favour of the paper title owner, applying Williams v Usherwood (1983) 45 P & CR 235. The application succeeded.

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