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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10635
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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What exactly is "The squatter has factual possession of the

Resolved Question:

What exactly is "The squatter has factual possession of the land" what constitues 'factual possession' if for example a person fences off or attempts to fence off a parvel of land yet people who have used the land for recreation climb over, under, around the fence or it is blown down and people go through the gap?
Submitted: 2 years ago.
Category: Law
Expert:  Aston Lawyer replied 2 years ago.

Hello and thanks for using Just Answer.

My name is ***** ***** am happy to assist you with your enquiry.

To enable me to answer you fully, could you confirm in what context you need this information. Are you trying to apply to the Land Registry for possessory title of the land in question?

I look forward to hearing from you.

Al

Customer: replied 2 years ago.

I am the chair of a campaign group that represents people in the local community. Within the neighbourhood is a small (1/2 acre of woodland) there is no known owner. The wood is used by people in the ocal neighbourhood for recreation anbd such. Kids playing, dog waking and fishing in the adjoining brook. A local resident fenced this land off in 2009 and said he was possessing it under the Adverse Possession process. The local community objected to this and the fence didn't last long. The fence does not encircle the woods completely, and each time he seeks to exclude people, he is thwarted in his attempts although he continues to claim all others but himself are tresspassers, although he too is technically a trespasser too. We have been told that in order to see his claim for Adverse Possession successful and then go on to register the land in his name, he has to show 'exclusive possession' so seeing as the woods is used on a daily basis how can his possession be exclusive? I have another question. Person A comes across a fence and in attempting to enter breaks down the fence. Later Person B comes along and sees the break in the fence, not knowing of the criminal damage to it, or it could have been blown down by the wind etc and enters that land, is the 'exclusive use' not satisfied, or is it indeed still 'exclusive' because the entrance was by way of a broken fence?

Expert:  Aston Lawyer replied 2 years ago.

Hi Mike,

Thanks for your reply.

In order to be successful in any adverse possession application, this party would have to show that the land is possessed by him, to the exclusion of others, and that in effect, he is using the land as if it was his own.

If third parties were crossing the land very infrequently (say once or twice a year), this would not necessarily harm the applicant's case, but if people are using the land on a daily or indeed only a weekly basis, there is no way this party would be successful in any adverse possession application, after the set period of time has elapsed (10 years if the land is alreafdy registered at the Land Registry or 12 years if it is not registered).

In your example of Person B, this would be just one instance of evidence that exclusive possession has not been achieved.

As rgeards the definition of "factual possession" I can do no more than quote the following, which is the authority on such matters-

In Powell v McFarlane ((1979) 38 P & CR 452, approved in the House of Lords in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30) Slade J said:

“Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.”

In any application for possessory title, the Land Registry Surveyor will also inspect the site, and if it is clear that it is mereluy a wood, which the applicant has tried unsuceesfully to fence in, it will be clear to the Surveyor that the applicvant has not had exclusive or factual possession.

I hope this assists and sets out the legal position.

If so, I would be grateful if you could rate my answer.

Kind Regards

Al

Customer: replied 2 years ago.

Thanks that's the answer I sort of expected but feel more comforted by the fact the answer comes by way of someone with legal knowledge. It is certainly the case that the woods is in daily use by the local community, and they enter both by climbing over/around the fence and parts where there is no fence anyway. The woods had been in use this way several decades before he attempted to assert possession.

Mike B

Expert:  Aston Lawyer replied 2 years ago.

Hi Mike,

Thanks for your message.

The party has no chance of being successful in any application, if the wood is used on a daily basis by the community.

If I have helped, I would be grateful if you could rate my answer.

Kind Regards

Al

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