Can Adverse Possession be Acquired Based on Common Character?


In Smith v Frankland and another [2015] UKUT 294 (TCC), it was recently considered whether a common character of locality between two parcels of land could result in the claimant reasonably inferring that, it if one part of the land belongs to the claimant, the other part will too (Jones v Williams [1837] 2 M & W 326).

This case relates to the claimant’s claim for adverse possession of a garage and other land which comprised an area of hardstanding to the west, rear and front of the garage. The claimant used the garage for storage purposes, but had cleared foliage, and also used the land to the west of the garage by allowing a third party to park on it. The Property Chamber of the First Tier Tribunal (Land Registration Division) held that the claimant had acquired title to the garage through adverse possession but not the other land. There was no exclusive occupation of the land in order to satisfy the grounds for adverse possession.

The claimant appealed to the Upper Tribunal (Tax and Chancery Chamber). The appeal was unsuccessful since the Upper Tribunal ruled that a clear distinction could be drawn between the garage and the land to the west of the garage. Not only was there a lack of boundaries to the land to the west of the garage, the land was also used for a different purpose, i.e. the claimant did not store items on the land.

The case highlights that although the courts are willing to consider whether a common character of locality exists, this principle could be difficult to establish.

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