Out of the woods and onto the Register - a successful claim for possession and title to woodland

Kayleigh Bloomfield of our Real Estate team and Thomas Lewis of WBW Solicitors, acted for the successful claimants in a claim for possession and a declaration of title by virtue of adverse possession to an unregistered oak woodland.

In this article, Kayleigh and Thomas discuss the points of interest about the case and provide some practical tips on running more complex possession claims.

Factual background to the dispute

1. The claimants purchased a cottage near the woodland the subject of the dispute in the mid-1970’s. Shortly thereafter, the claimants discovered the woodland and began to use and maintain it until late 2022 when the defendant entered the woodland without the claimants’ permission and began to excavate, accumulate waste, cut down trees and even construct a hut on the land.
2. The woodland was unregistered land. The claimants were not the paper title holders to the woodland, nor had they registered themselves as owners by virtue of their adverse possession. The claimants took steps to exclude the defendant from the woodland, by erecting a fence where the defendant had been gaining access to the woodland and displaying signage to indicate that the land belonged to them. The defendant cut down the fence erected by the claimants and used the materials to erect a new fence and a gate which he then fastened with a bicycle chain and displayed his own sign upon. The claimants served the defendant with a notice requiring him to vacate the woodland within 14 days but he failed to do so.
3. The claimants therefore had no option but to commence possession proceedings and seek a declaration of their title to the woodland so that they could thereafter take steps to register that title.

Outcome

4. At the first hearing, the defendant attended and relied upon a defence which was filed but not served on the claimants’ solicitor. The defendant was given an opportunity to amend his Defence and file further witness evidence. The court accepted a submission on behalf of the claimants that the defendant should file all witness evidence on which he intended to rely within the proceedings by the date set out in the order.
5. The second hearing was an adjourned hearing for the purposes of CPR 55.8(1). The court could therefore decide the claim or give further case management directions. The summary judgment test is embedded in CPR 55.8(2): see Global 100 Ltd v Laleva [2021] EWCA Civ 1835, Lewison LJ stated: “in my judgment the test for summary judgment is the same test as that which applies to the required threshold under CPR Part 55.8(2)…The question, then, is whether the defendant has shown a real prospect of success in defending the claim.” Thus, if the court is not satisfied that a defence would survive an application for summary judgment, it should decide the claim and not give further directions to trial.
6. It was successfully argued that the court should decide the claim on a summary basis at the adjourned first hearing, where the claimants’ claim succeeded in full and a cost order secured. An order sufficient to enable the Land Registry to register the claimants as the owners of the woodland was drafted and approved following the hearing and the claimants have now been registered as such following an expedited application.

Points of interest

7. The well-known principles that determine whether conduct amounts to adverse possession are set out by the House of Lords in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30. For unregistered land, adverse possession is governed by the Limitation Act 1980 which provides that the owner’s right to recover possession is barred once a squatter has been in adverse possession for 12 years (s.15) and that his title is also extinguished (s.17).
8. This regime is both well-known and well-trodden, but this case was of note in two respects.

What did it take to establish adverse possession to a woodland?

Factual possession

9. Whether the squatter has taken a sufficient degree of control is a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which such land is commonly enjoyed. The woodland is, and had been, partially open. In the case of open land, absolute physical control is normally impracticable. In Thorpe v Frank [2019] EWCA Civ 150 the Court of Appeal held that in the case of open land, it was generally impossible to secure every part of the boundary so as to prevent intrusion.
10. It was argued that the claimants had been in control of the woodland and dealt with it as an occupying owner might have been expected to deal with it (and no-one else had) by undertaking the following acts over a period of circa 50 years:

• maintaining the woodland such as erecting bird boxes, removing fallen trees, tending to the trees, maintaining hedges, planting further trees and maintaining walking paths;
• erecting partial fencing (due to the nature and size of the woodland, only partial fencing was possible);
• removing litter and fly tipped rubbish;
• walking regularly through the woodland;=
• regular bird watching on the woodland;
• digging a watercourse on the boundary;
• installing drainage ditches; and
• instructing contractors to clear trees and maintain hedges / fencing / the boundaries at their own expense.

Intention to possess

11. It was argued that the claimants were entitled to rely on the above acts of possession as manifesting an intention to possess. However, there were further features of this case that evidenced an intention to possess:

a) The claimants regularly required third parties to request permission to walk on or use the woodland, which were heeded to.

b) It was argued that the claimants so outwardly manifested their intention to possess that third parties considered that the woodland belonged to them. So much so, that the local council would write to them in the event that there was an issue arising from the woodland, such as trees falling onto the highway following a storm.

12. The claimants adduced evidence from local residents, neighbouring landowners and the local council to the above effects.

Could the claimants, as squatters, claim possession from the defendant, a later squatter?

13. A person in possession of land is entitled to retain and defend that possession against the whole world, save only a person with better title. Lord Diplock said as follows in Ocean Estates Ltd v Pinder [1969] 2 A.C. 19at 24:

“At common law…there is no such concept as an ‘absolute’ title. Where questions of title to land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants. If party A can prove a better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither a party to the action nor a person by whose authority B is in possession or occupation of the land.”

14. Third parties who have themselves no title, cannot exploit the relative weakness of A’s title by pleading jus tertii. Thus, competing squatters must claim the land on the strength of their own title, not on the weakness of their competitors.
15. Illustrations of this principle can be found as far back as the 1800’s, right through to more contemporary examples. In Asher v Whitlock (1865) LR 1 QB 1 (QB), Cockburn CJ noted that in Doe d Hughes v Dyeball (1829) M&M 346 it was decided that one year’s possession was ‘good against a person who came and turned him out; and there are other authorities to the same effect.’
16. He maintained that, if the defendant, Whitlock, had taken possession of the land when the testator, Mr Williamson, had been in possession of it, ‘ejectment could have been maintained by the [the testator] against the defendant.’ Thus, it was accepted, in line with Doe d Hughes, that if A is in possession of land and B takes possession and A then brings ejectment against B, A’s possession is sufficient as against B.
17. In Ezekiel v Fraser [2002] EWHC 2066 (Ch), Ryehurst Ltd was the registered proprietor of a freehold estate in certain land. The company was dissolved in 1998 and, accordingly, the freehold vested in the Crown. The claimants, Ezekiel, had been in possession of the land for approximately sixteen years ending in 1999. Thereafter, squatters took possession of the land. In 2000, Fraser went into possession and Ezekiel brought possession proceedings in 2001.
18. HHJ Rich QC maintained that the claimants ‘are entitled to rely on their prior possession as entitling them to claim to be restored to possession against an intruder with no right, and the jus tertii of the Crown … is irrelevant.’ The judge ‘did not see how the possibility, as a matter of fact, that the claimants had already been dispossessed by squatters could make any difference.’ The judge also commented that possession would have endured as long as the intention to possess did.
19. In the claimants’ case, it was argued that the defendant failed to advance a case on the strength of his own title and to the extent that he did, his title was not ‘better’ than the claimants. Once the claimants had successfully established title to the woodland by adverse possession, there was little difficulty for the court to find that the claimants had a better title. However, it is likely that the claimants’ claim for possession would have succeeded as against the defendant even if they failed to establish title to the woodland by adverse possession, given that they were able to prove a better title by virtue of their long possession.

Practical points to consider

20. A number of practical issues arose during our conduct of this case and as a result, we take this opportunity to share some practical points to consider when faced with a possession claim such as this one

a) If possible, obtain signed witness statements before issuing the claim. Witnesses can sometimes be hard to pin down and there is a risk of being caught out by the time limits for service set out in CPR 55.5(2) if they cannot be finalised in time.

b) Think about time estimates for the first hearing. If it is going to take longer than the usual 10-to-15-minute standard possession listing, make this clear to the court at the time of issuing the claim and suggest a time estimate yourself. A longer time estimate should be requested in a less straightforward possession claim such as this one, given that more complex submissions are likely to be required.

c) Attend the first hearing with a skeleton argument setting out the relevant law for the judge. Make sure this is handed to the usher as soon as possible to enable the judge time to read it and understand the basics of the claim. This will enable the hearing time to be used more efficiently and provide the best chance of the claim being concluded at this first opportunity.

d) Consider the possibility of seeking possession at the first hearing on strength of title and seeking a separate, longer hearing to determine the declarations in order to secure possession of the land as soon as possible.

e)If it becomes clear that the matter cannot be disposed of at the first hearing on the basis that the defendant has raised a defence to the claim, seek a direction that no further evidence in response to the claim will be permitted beyond a set date for compliance. This will force a defendant to set out their position and prevent any further defences, arguments or delaying tactics from materialising at later hearings. Further, it will allow prospects to be assessed at an early stage and if appropriate, a claimant can then seek for the matter to be determined at the adjourned first hearing,

f) Ensure that the wording of any declarations drafted in an order are sufficient to enable the Land Registry to accurately register the claimant(s) as the owner(s) of the relevant land.

g) When applying to the Land Registry consider if there are any circumstances that may persuade the Land Registry to expedite the application. It may avoid a long wait.

Kayleigh Bloomfield, Barrister, St Johns Chambers.

Thomas Lewis, Senior Associate, WBW Solicitors

If you would like to instruct Kayleigh, please contact her clerks on: c[email protected] or 0117 923 4740

This article is provided for information purposes only. It is not legal advice and should not be relied upon as such. All cases turn on their own facts such that any business or person involved in a dispute of this nature should seek bespoke legal advice.