Credibility of Witness Defeats Adverse Possession Claim

26th November 2018 By Alireza Nurbakhsh

The law allows people who occupy land over a long period and use it as their own, without anyone else asserting ownership rights to it, to apply to have their title to it registered at the Land Registry.

This is normally called ‘squatter’s rights’ and lawyers know it as ‘adverse possession’. There is a procedure that must be followed, and changes were made a few years ago which make it somewhat easier for the owner of the title to the land to prevent its transfer. In practice, it is fairly difficult to succeed with a claim for adverse possession.

However, people do try, as demonstrated by a recent case in which a man applied to be registered as the legal owner of land that lies between two semi-detached houses in a street in Burntwood, Staffordshire. The land in question is part of one of the properties, which has been rented out for more than 40 years to the sister of the man claiming ownership. The dispute over the land arose when the two fell out, with the man claiming that his use of it was such that he should have legal title over it and his sister opposing his application.

Lengthy and predictably contradictory evidence was given by the siblings.

A fence between the garden of the property rented by the man’s sister and the land in question was removed some time ago. The man claims that he began using the land to park his truck in 1994 and has done so almost without interruption ever since. He also used it for some years from 1977 onwards to run a vehicle repair business. After a time, a hedge between the land and the back garden of the property was removed and the land was in part used as, in effect, an extension of the sister’s garden.

He claimed that the extent of his use and occupation of the land between 1977 and 1989 meant that he could claim legal title to it. The defence against that case rested mainly on the assertion that the man’s occupation and use of the land was far less than he had claimed.

In the end, the judge concluded that the sister was the more credible witness, and that although her brother’s use of the land was greater than she stated, it was less than he claimed. Her brother’s evidence had several holes in it and ultimately lacked believability.

Settling the matter necessitated a well-thought-through analysis and balancing of all the evidence by the judge. Where land is used by another person it makes much more sense for the legal basis of that use to be made clear via a tenancy agreement or licence to occupy.

Landlords in general should be sure to keep an eye on the use being made of their properties by their tenants. In another recent case, landlords failed to obtain possession of a property after one of the tenants was convicted of conspiracy to supply class A drugs, as they were unable to provide sufficient proof of illegal use of the premises in breach of a covenant in the lease. Taking the necessary steps early on is a much better way to proceed than fighting a legal battle down the line.

Source: Concious

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