The First-tier Tribunal (FTT) has ruled that an application for adverse possession must be cancelled when the claimant is found to be acting only on behalf of a parent, emphasising that possessory rights over unregistered land cannot be informally transferred between family members without a deed.
Facts:
On 1 September 2021, the applicant applied for first registration as proprietor of the land known as the land adjoining 593 Stratford Road, based on the principle of adverse possession. Mr. Choudry purchased the original property in 2003 and subsequently built an extension in 2005 that encroached onto the disputed rectangle and triangle.
This land sits adjacent to a property currently owned by the respondents, who purchased number 593 in 2013 following a mortgage repossession against the applicant’s father, Mr. Choudry. The dispute centres on whether the applicant himself had exercised sufficient physical control and intention to possess the land for the required twelve-year period, or whether those acts of possession were actually performed by his father.
The evidence revealed that Mr. Choudry had managed the business, collected rents from a mobile phone shop on the ground floor, and took the lead in legal action in 2013 to obtain an injunction against the respondents when they attempted to enter the land. Regarding the ground floor of the triangle, the respondents claimed they had used the area for storage via an internal door, but this was heavily contested. During a site visit, the Judge discovered a freshly cut doorway that appeared to have been created the night before the hearing.
Decision:
The FTT determined that, while the land had indeed been held in adverse possession since 2005, the applicant had failed to prove that he was the person in possession or that he had received a valid legal transfer of the possessory title from his father. Consequently, the applicant’s claim was rejected.
The Judge reasoned that to succeed in an adverse possession claim, the specific individual applying must be the one who exercised control. The evidence strongly suggested that the applicant’s father, Mr. Choudry, was the “controlling mind” behind the property.
The applicant argued that the claim was effectively “his” because his father intended for him to have the property. The Judge rejected this based on the strict application of the Law of Property Act (LPA) 1925, where, under Sections 52 and 53, any transfer of an interest in land must be made by a formal deed. In this case, there was no such document transferring the possessory title from father to son. The Judge found no evidence of an intrinsic trust or a partnership that would have given the son a legal stake. Since the father could “repossess the property at any time,” the son was merely a licensee or helper, and not an actual owner.
A significant portion of the reasoning was dedicated to why the respondents (i.e., the neighbours) had not regained possession or shared the land. A previous court injunction arising between 2013 and 2016 had legally barred the respondents from the land, thereby ensuring that Mr. Choudry’s possession remained “exclusive” during that critical period.
Implications:
The case reinforces that a possessory title is a legal interest in land. Thus, a son or daughter cannot claim title based on their parent’s occupation simply because they are family or intend to inherit the property. Helping a parent to manage a property out of “filial duty” does not give the child a right to legal possession. The law thus distinguishes between a licensee and a possessor. Under the LPA 1925, any transfer of this possessory interest from father to son required a formal deed. Without it, the “years” stayed with the father.
Even though the application was rejected, the FTT’s decision illustrates how a legal “loss” can nonetheless constitute a strategic “win”. By formally recording that the father has been in possession since 2005, the Judge effectively created a finding of fact that is now binding. The neighbours (the respondents) are now effectively “estopped” (legally barred) from changing their story later, as they cannot argue against the father’s possession in a future application because a Judge has already ruled it to be true.
