Case update: Adverse possession and rights of way

by | Apr 13, 2021 | Blog Posts


A recent case has considered a claim for adverse possession where those claiming had a right of way over the land. We take a look at the key points in Amirtharaja v White.

Adverse possession

Adverse possession is sometimes referred to colloquially as ‘squatters’ rights’. It is where someone can become the legal owner of a piece of land by possessing it for a specific period of time. To be successful in a claim for adverse possession of land, you would need to show both:

  • Uninterrupted factual possession of the land. This means that the person must have actually possessed the land for the required period (10 years, or 12 years if unregistered land). The person should show that they were in exclusive physical control of the land. This essentially means that they should have been treating it as their own, and that no one else has done so. How this happens will vary case by case.
  • Intention by the person to possess the land during that period. The person must intend to possess the land in their own name to the exclusion of everyone else.

| Amirtharaja v White

The case of Merwin Amirthan Amirtharaja and Jennifer Amirtharaja v Colin White and Frances White EWHC 330 (Ch) concerned a narrow passageway that ran between two commercial buildings owned by the Amirtharajas (“the passageway”).

In February 2017, the Whites purchased a property known as Hollis House from their friend, Mr Bright. Mr Bright had lived at Hollis House for 40 years.

The passageway runs from an access road to the garden of Hollis House. There is a locked gate at the access road end of the passageway. The Whites said that this gate was always controlled by Mr Bright. They therefore said that Mr Bright had acquired title to the passageway by adverse possession. They, consequently, should be the legal owners of the passageway.

Mr Bright made a statutory declaration in 2017, after he had sold Hollis House to the Whites. It set out how he had used the passageway throughout his ownership of Hollis House to store belongings and to access the road to put out the bins or to get to his car.

County Court

At the County Court, the judge decided that the Whites should be registered as the legal owners of the passageway. The judge placed weight on the evidence in Mr Bright’s statutory declaration when coming to his decision. This is despite the fact that Mr Bright did not give oral evidence at the hearing.

Appeal to the High Court

The Amirtharajas appealed to the High Court, and the Court handed judgment down in February 2021.

The High Court Judge overturned the County Court decision. He considered Mr Bright’s statutory declaration and found that it did not prove that he had acquired the passageway by adverse possession.

The Judge found that the evidence in the statutory declaration showed that Mr Bright had enjoyed a right of way over the passageway. The Judge found that Mr Bright had added the gate, not to stop the owners of the passageway using it, but to stop people accessing Hollis House. Therefore, the Whites had not been able to satisfy the tests for adverse possession.

Key points

This case casts light on just how difficult it can be to satisfy both strands of the tests to prove adverse possession, particularly in cases where the person had enjoyed a right of way.

Our top tips:

  • Evidence to support a claim for adverse possession must be unambiguous.
  • The best evidence in these cases is that which the witness had made at the time. Statements made after the dispute has arisen may be considered biased in light of the dispute. A court is likely to regard contemporaneous evidence of the position regarding ownership of the land more highly than a statement made after the dispute.

To discuss a potential adverse possession or right of way claim, contact our property disputes team on 0800 988 7756.

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