Jonathan Paul Gray v Stephen John Tusz

Key words: Adverse possession – Schedule 6 Land Registration Act 2002 ADV1 application – factual possession – intention to possess – garden land in separate title sold off by previous owners – termination of previous licence – aggregation of possession of successive owners – Schedule 6 paragraph 11(2)(a) “successor in title” – further application under Schedule 6 paragraph 6 over two years after rejection of paragraph 1 application Key cases referred to: Powell v McFarlane (1977) 38 P & CR 452 J A Pye (Oxford) v Graham [2003] AC 419 Site Developments (Ferndown) Limited v. Cuthbury Limited [2011] Ch. 226 Haandrikman v Heslam [2021] UKUT 0056 (LC) Smith & Guilder v Basildon DC , 20/12/2024; [2025] UKFTT 00181 (PC); Hounslow LBC v. Minchinton [1997] 74 P&CR 221 (CA) J. Alston & Sons Ltd v BOCM Pauls Ltd [2008] EWHC 3310 (Ch) Lewis-Han v. Williams [2025] UKUT 401 (LC) Purbrick v Hackney London Borough Council [2003] EWHC 1871 Introduction: parties and titles

1. The Applicant, Jonathan Gray, purchased number 27 Upper Weybourne Lane, Farnham on 25 th October 2019, and was registered as its proprietor, under title SY 668690, with effect from 1 st November 2019. It is a terraced house with a garden at the rear.

2. The title SY 668690 to number 27 was once significantly larger. On 21 st February 2003, however, its then proprietors – one Alistair De Fremery Wharton and Helen Louise Greenwood – sold off a large portion of its rear garden to the Respondent, Stephen Tusz, for £30,000. It appears that some other local residents made similar transfers. The Respondent purchased these plots as a speculative investment, in the hope of obtaining planning permission and constructing one or more dwellings. For whatever reason, this has never happened. The Respondent, however, remains the registered proprietor of the land transferred to him out of number 27 in 2003, which was then registered with effect from 14 th March 2003 under its own new title number SY 718903. Both titles - to number 27 (red) and the land owned by the Respondent (green) – are shown on the extract below from number 27’s filed plan. The applications

3. By an application made on form ADV1 dated 19 th May 2020, the Applicant applied under Schedule 6 paragraph 1 Land Registration Act 2002 for title by adverse possession to the whole of the Respondent’s title. As will be discussed further below, since he himself had only owned number 27 since October 2019, such an application was based mainly on the alleged possession of his predecessor Ms. Elaine McVeigh and her partner. She had jointly owned and lived at number 27 since August 2007.

4. As was his right under Schedule 6 paragraph 3 of the 2002 Act , the Respondent, upon being given notice of the application, objected and served a counter-notice on form NAP, requiring the application to be dealt with under Schedule 6 paragraph 5. The Applicant could not then succeed in his application unless he could establish one or more of the three “conditions” in paragraph 5 (in broad summary: estoppel, “some other reason” why he should be registered, or a reasonable mistaken belief that the land already belonged to him). He was not able to do so. The Land Registry accordingly rejected the application on 3 rd May 2021.

5. Under Schedule 6 paragraph 6(1): “Where a person’s application under paragraph 1 is rejected, he may make a further application to be registered as the proprietor of the estate if he is in adverse possession of the estate from the date of the application until the last day of the period of two years beginning with the date of its rejection.”

6. So an initially unsuccessful ADV1 applicant can “go again” over two years later if he claims to have been in adverse possession for two years or more following rejection of the first application. The idea behind this provision, when proposed by the Law Commission in their commentary accompanying the bill which became the 2002 Act , was to give registered proprietors two years to recover possession of their land; following the alert or ‘wake up call’ of the first ADV1 application. Paragraph 3 gave them the opportunity to serve form NAP to defeat that application, but if they then sat on their hands for the next two years, they risked losing their land without the applicant having to establish one of the paragraph 5 conditions.

7. The Respondent did not bring possession proceedings against the Applicant after rejection of the first ADV1 application. Nor does he claim to have entered on to the land to retake physical possession, or even to have set foot on it. The Applicant did therefore “go again” with a further application on form ADV1, this time under Schedule 6 paragraph 6, on 19 th February 2024 (given the priority date 4 th March 2024 by HM Land Registry). The position on the ground

8. There was little dispute as to most of the relevant facts in this case. As will be discussed further below, the real issues are as to the legal implications of those facts. Nor is there, or could there be, any dispute about the current position ‘on the ground’, and how the disputed land now appears.

9. It is quite plain, and the Respondent accepts, that the disputed land has now been fully incorporated by the Applicant as part and parcel of his garden. In effect, he has formed a single garden comprising his and the Respondent’s titles. Beginning not long after his purchase, in about early 2020, the Applicant carried out a great deal of work to this land, which he described as follows (in paragraph 9 of his witness statement): “Since taking possession of the Land, I have spent considerable time and money on it and it looks very different today compared to when I first took possession…. On top of continued general maintenance the work I have carried out on the Land includes but is not limited to cutting back the trees and weeds and removing excessive tree growth to maintain the boundaries. I first cut the trees back, but Pine Conifers grow very quickly, and when they grew back they began to block out natural light to the house and garden, so I hired a contractor to cut the trees down. I then attached bark fencing with steel mesh to the tree stumps to prevent foxes and other pests from getting into the garden. There is a fox den next door and the foxes were causing a lot of damage, including fo[u]ling everywhere, which is a health risk. The fencing and mesh have now prevented this. I have further erected timber fence panels with concrete posts and gravel boards, installed a shed with a concrete base, put in a patio and pathway, and put down gravel. I also prepared the Land for new lawn which involved removal of several tons of rubble and waste masonry materials and levelling work before laying down turf, and built a retaining wall at the end of the Land.”

10. He illustrated this with a number of recent photographs, and the position was confirmed on the site visit. Some flavour of this can be gleaned from the photograph extracts below. The law to be applied: adverse possession

11. There was little dispute – only a difference of emphasis – on the legal principles to be applied when considering this application. Period of adverse possession to be established

12. One important point, on which both counsel (and I) were agreed, is that on an application made under Schedule 6 paragraph 6, the Applicant has to establish that he was in adverse possession both “from the date of the application until the last day of the period of two years beginning with the date of its rejection”, and also for a period of at least ten years prior to that first, rejected application.

13. I have encountered this point before in another case, in which counsel were of the contrary view that a Schedule 6 paragraph 6 applicant only had to establish the period of two years’ adverse possession from the date of the rejection of the first application. I rejected that submission in that case (REF 2023/0576 Smith & Guilder v Basildon DC , 20/12/2024; [2025] UKFTT 00181 (PC); paragraphs 9 to 22).

14. My view was, and is, that the clear intention of the Law Commission when drafting what became the 2002 Act was that this provision applied to a squatter who “remained” in adverse possession after the rejection of an initial application. He must therefore, once the second application is before the Tribunal, satisfy it that he was also in possession for a sufficient period before the rejected first application; there having been no previous determination or adjudication of that issue by the Land Registry. Were the position otherwise, a person could make a dishonest or meritless initial application, wait for it to be rejected following service of a form NAP, but then by only two years’ subsequent possession put himself in a better position than an honest applicant.

15. In this case, as stated, both counsel accepted that analysis. The Applicant, through Ms. Fisher, therefore accepts that she has to rely on the aggregation of the alleged possession of the Applicant with that of his predecessor Ms. McVeigh, and so establish such possession as far back as at least 19 th May 2010 (ten years prior to the first application). Principles as to aggregation of successive periods of possession by different ‘squatters’

16. Certainly in relation to unregistered land, and registered land under the previous Land Registration Act 1925 , an applicant for or claimant of title based on adverse possession is entitled simply to aggregate and rely upon successive periods of adverse possession by themselves and their predecessors in possession to establish their claim. Time runs against the paper owner from the time when adverse possession began, and so long as adverse possession continues unbroken it makes no difference who continues it (see Megarry & Wade, The Law of Real Property , 9th edition para. 7-036; cited with approval by Vos J. in Site Developments (Ferndown) Limited v. Cuthbury Limited [2011] Ch. 226 , p240).

17. This principle applies where a previous squatter relinquishes their possession of other land to a successor in title to e.g. their main property or land so that there is continuity of possession. No “assignment” or conveyance of any inchoate title or right to the other land is required: see per Upper Tribunal Judge Cooke in Haandrikman v Heslam [2021] UKUT 0056 (LC) , at paragraphs 22 to 24, discussing and applying Site Developments , in a case in which the relevant period of possession fell within the provisions of 1925 Act preserved by the transitional provisions of the 2002 Act .

18. There is however an argument, and view, that if an applicant under Schedule 6 Land Registration Act 2002 wishes to aggregate their most recent possession with that of a predecessor, some form of conveyance or assignment of the predecessor’s inchoate and unregistered title and interest to that land is required. This is on the basis that Schedule 6 paragraph 11(2)(a) had to make express provision for an applicant to be deemed to be in adverse possession where s/he was a “successor in title” to that additional land (i.e. not just the successor in title to the main registered title transferred):- “A person is also to be regarded for those purposes as having been in adverse possession of an estate in land— (a) where he is the successor in title to an estate in the land, during any period of adverse possession by a predecessor in title to that estate.”

19. That is the position assumed by Ruoff and Roper, Registered Conveyancing paragraph 33-019, who say as follows: “Where an application is made under the Sch.6 procedure by a successor in title of the previous squatter, the application will need to be supported by evidence of a conveyance of the previous squatter’s unregistered fee simple title in the land to the successor. The fee simple being that referred to in para.9(1) of Sch.6. The terms of the conveyance may be explicit, as in the case of an express conveyance of the squatter’s fee simple. However, it is also arguable that such a conveyance may be implicit. Thus, for example, a transfer of a registered estate may contain an express conveyance of the transferor’s unregistered fee simple, as squatter, in adjoining registered land. In the absence of an express conveyance, a conveyance may nevertheless be implicit from the terms of the transfer; for example if the adjoining land formed part of the curtilage of the registered estate being transferred and that estate was defined in the transfer by reference to a postal address which prima facie encompassed the adjoining land, and the transfer contained no provisions to rebut an inference of an implied conveyance.”

20. The Law Commission, in paragraph 14-20 of the Report which accompanied the Land Registration Bill 2001 (Land Registration for the 21 st Century, Law Comm) said that:- “However, to satisfy the requirement of 10 years’ adverse possession, the applicant, X, does not in fact have to show that she has herself been in adverse possession for that period. Under the Bill it will suffice that— (1) X is the successor in title [emphasis added] of an earlier squatter from whom she acquired the land, and, taken together, the two periods of adverse possession amount to 10 years; (2) X has been in adverse possession, has herself been dispossessed by a second squatter Y, and has then recovered the land from Y. In these circumstances, she can add Y’s period of adverse possession to her own to make up the necessary 10 year period.”

21. Ms. Fisher, for the Applicant, assumed in paragraphs 19 to 24 of her skeleton argument that this had to be established in the present case. She argued that, if sufficient possession by the predecessor was made out here, there should be taken to have been an implied conveyance or assignment of that title and interest in all the circumstances of this case. I will deal with her submissions on that point below. Factual possession and intention to possess

22. The general principles applicable to adverse possession are familiar, were not in dispute, and are broadly as follows, as summarised and clarified in Powell v. McFarlane (1977) 38 P&CR 452 and JA Pye Ltd. v. Graham [2003] 1 AC 419 and other cases:- (1) What must be established is a sufficient degree of factual possession of the land in question, with an intent to possess it. (2) Factual possession generally connotes a sufficient degree of single and exclusive physical custody and control of the land: Pye at [40]-[41], per Lord Browne- Wilkinson. What constitutes a sufficient degree of physical custody and control will vary depending on the facts, the nature of the land, and the way in which such land is commonly used or enjoyed. Typically, one is looking for the adverse possessor to be dealing with the land in question as an occupying owner of such might have been expected to. (3) An “intention to possess “simply means an intention to exercise such custody and control on one’s own behalf and for one’s own benefit i.e. to use the land “as one’s own”: [40], [71]). It is not necessary to prove a deliberate intention to oust or exclude the paper title owner or registered proprietor, or any particular belief in ownership or entitlement. In many cases the possessor may in fact believe that s/he already owns the land. That would more than suffice to establish the lesser intention to possess. Conversely, a person who knows that they do not own the land in question, and would leave if asked to do so, may still intend to possess it for as long as possible. (4) Physical enclosure of land may establish factual possession, but complete physical enclosure is not a prerequisite, and is not always possible. (5) In the case of relatively simple and undeveloped land, said to have been possessed as an adjunct to or extension of the rest of the possessor’s land, even quite simple acts of possession and use may suffice, if this is all that could reasonably be done with such land, and is what an occupying owner of it would do: see e.g. Hounslow LBC v. Minchinton [1997] 74 P&CR 221 (CA) (possession of rough area of garden land up to a fence erected by the neighbouring owner): I will consider this case in more detail below. (6) Slade J. in Powell also emphasised (at p472) the need for the possessor to make their intention to possess unequivocal and “perfectly plain” from their actions: “..where the question is whether a trespasser has acquired possession….. the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.” The facts of this case

23. I heard evidence from both the Applicant and Respondent. Ms. Elaine McVeigh had provided an ST1 declaration dated 1 st October 2019 in support of the original application. By my order of 9 th December 2025 I gave permission to the Applicant for a witness summons to be issued and served on her, as it then was, and for her ST1 to stand as her witness summary.

24. Regrettably, Ms. McVeigh did not appear to have read or understood the summons, or appreciate its seriousness as a document requiring her to attend a physical hearing in London, on pain of possible contempt of court. She failed to attend physically on the day of the hearing. With the encouragement and agreement of both parties, the hearing was paused while the Tribunal then attempted to contact her on the two mobile telephone numbers which the Applicant had obtained from an enquiry agent. Contact was then made with Ms. McVeigh, who was at her place of work in Liverpool. I record here that she was extremely apologetic and embarrassed, and admitted that she had not appreciated that the summons (which she confirmed she had received) required her to attend the hearing in person.

25. Again with the parties’ encouragement and agreement, the Tribunal was able swiftly to set up a Cloud Video Platform link, to enable Ms. McVeigh to give evidence remotely via a screen in the courtroom. The hearing then proceeded, in this respect, as a ‘hybrid’ hearing. I will deal with her evidence last, since it is the most important to this case.

26. As to the parties themselves, their evidence was largely uncontroversial, and so their cross-examination was relatively limited. I have already quoted the substance of Mr. Gray’s evidence as to his physical works to the land above. He was asked a few questions about his understanding of the status of the disputed land at the time of his purchase from Ms. McVeigh. He knew and understood that there was a separate title, effectively at the lower part of the garden of number 27, which was owned by a third party. He believed, however, that it might be possible later to claim title to it by adverse possession. This was clearly why he obtained a declaration from Ms. McVeigh around this time as to her use and alleged possession of this land, which he did in fact use in support of his later application.

27. As to the condition and nature of the land at the time of his purchase, this was very helpfully captured in a series of photographs he took around this time – in fact, in about July 2019, just prior to his purchase, presumably taken on one of his viewings. At the risk of overcrowding this decision with photographs and plans, I consider that it is worth copying these here, because in some respects the case turns on what exactly these photographs demonstrate so far as alleged possession is concerned. They are on the page which follows.

28. The position can be summarised as follows:- i) the land was, and always had been, enclosed onto the land and curtilage of number 27 by fencing between it and other properties. There was no, and had never been any, internal fencing between it and the number 27 title. That dated back to the previous owners, and the time when number 27 and the land were in a single title. ii) the land was heavily populated by coniferous trees, but mostly to its sides and at the rear. It ‘presented’ as a sort of clearing amongst that woodland, with a ‘floor’ of fallen leaves, ivy and other growth. iii) there were three relatively long standing items on the land (whether they were fixtures or chattels is not particularly relevant): a somewhat aged wooden gazebo frame; a broken and unused outdoor barbeque under a black cover; and (further down) a wooden shed. A metal ladder can also be seen lying on the ground.

29. Mr. Gray did make some pre-contract queries of Ms. McVeigh via the selling agents. On 9 th July 2019 he asked as follows:- “I've checked the land registry and found that over half of the garden is demised to a different owner, so please can you ask the vendor to confirm the following: 1. Are the land owners details known. 2. How long has the vendor been using the land and has an application for adverse possession been made to the land registry. 3. Is the current market value of £275,000 based on full ownership of the rear garden.”

30. It is fair to say that Ms. McVeigh, in her responses passed on through the agent the same day, did not fully answer all of these questions:- “1. We have not pursued the owner regarding the bottom of the garden that is not ours as we have not felt the need to as it is land locked. 2. The previous owner we bought the property from had used the land before us and we have used it for the time we have been in the property around 12 years. We have not applied for adverse possession with the land registry. 3. Bearing in mind the interest we have had in the property £275,000 is a fair price in the current market.” Mr. Gray then went ahead and purchased the property, for a finally agreed price of £260,000.

31. Mr. Tusz, the Respondent, also gave evidence. His witness statement explained his purchase of the land in 2003 as a “speculative development” along with parts of the gardens of other properties. He described how his development plan did not come to fruition, because of an inability to agree terms with the local authority (presumably as to access). He also described how he entered into an informal licence with the vendors of the land to him (and still then the owners of number 27): “I agreed with Mr. Walton and Miss Greenwood that, following my purchase of the Land, they could continue to use the Land as garden land incidental to the use of their property until such time as I required it for a possible future development site and I agreed with them that I would leave the Land unfenced in order that they could use it. Nothing was confirmed in writing. It was an oral agreement the terms of which were that they could use the Land for their own purposes as garden land incidental to the use of their property at 27 Upper Weybourne Lane, Farnham, provided that they were responsible for any maintenance which was required.” There is no reason to doubt that evidence, and Mr. Tusz was not challenged on it.

32. Mr. Tusz was also clear, and accepted, that he was wholly unaware of any changes in ownership of number 27 until receiving notice first ADV1 application in 2020. It follows from that, and he confirmed, that he had no contact with or knowledge of Ms. McVeigh or her then partner Spencer Abbott, to whom number 27 was transferred in 2007. Nor did he know of the Applicant as owner of number 27 until the application was made.

33. Mr. Tusz also accepted that he had not set foot on the land since his purchase of it. It is worth noting that the 2003 transfer of part did not grant either party any general right of access to the other’s property. The only rights Mr. Tusz was granted, along with the transfer of the land, were rights to service media serving the land, and the right to enter on the retained land (number 27) to inspect such service media. The transferors reserved correlative rights over the land. There was no general right of way granted to Mr. Tusz over number 27 to access the land. Mr. Tusz confirmed, however, that he had not exercised even the limited service media rights he was granted. He said for the first time in oral evidence that he had from time to time looked over towards the land when passing on the nearby Newcome Road. It was not clear, however, what if anything he could have seen from that distance and perspective. This possibility had not been raised prior to the site visit.

34. The rest of Mr. Tusz’s statement appeared to me to be lawyer-drafted, and concerned with making legal arguments as to aggregation of periods of possession, and alleged licences to successors of the 2003 owners. No licence to successors of 2003 vendors

35. As to that latter point, pleaded in the statement of case but not seriously pursued by Ms. Morton in closing submissions, I do not consider that there is any basis upon which any subsequent use or possession of the land by Ms. McVeigh and Mr. Abbott could be said to have been by express or implied licence.

36. The undoubted licence enjoyed by Mr. Walton and Ms. Greenwood between 2003 and 2007 came to an end when they transferred number 27 to Ms. McVeigh and Mr. Abbott and moved away. By basic principles, a licence is personal to the parties who grant and receive it, is not a proprietary interest, and so does not survive the transmission of either of the titles to the land to which it relates. Following termination of a previous licence to possess land, the subsequent possession of another person who has no licence becomes adverse, and time starts to run against the paper owner. For any fresh licence to be implied there must have been some overt act or conduct, from which such an implication can be made: “something more than merely letting the previous situation continue is required”: see HHJ Hazel Marshall QC in J Alston & Sons Limited v. BOCM Limited [2009] 1 EGLR 93 (at paragraph 114).

37. In the present case, not only was there no such conduct or act: Mr. Tusz never once spoke to Ms. McVeigh or Mr. Abbott, nor even knew that they had purchased number 27 in 2007. Whatever use they then made of the land could not therefore have been by licence. There were no dealings or contact between them and Mr. Tusz at all, let alone any “overt acts” from which a licence could be implied. It is therefore necessary now to turn to that period, and to the evidence of Ms. McVeigh, to consider what that use was; and what its effect in law may be. Ms. McVeigh’s evidence

38. Ms. McVeigh purchased number 27 jointly with her then partner, Spencer Abbott, in August 2007. She lived there until the sale to the Applicant in October 2019. By that time she had broken up with Mr. Abbott (it was not clear exactly when) and was living at the property alone.

39. She said that at the time of the purchase in 2007, they were aware that a portion of the garden was not owned by the vendors. They had asked to purchase the whole of the garden, but Ms. Greenwood told them about this other portion. She did not say anything about a licence from Mr. Tusz, or provide his name (she was “not very forthcoming”), but they went ahead with the purchase anyway.

40. She said that Ms. Greenwood had kept the area in good order and tended it, and that after their purchase, they did the same. In her 2019 ST1 she had said that: “Myself and my partner Spencer Abbott have enjoyed exclusive possession of the land and the land has been included within the boundaries of our garden, during our period of ownership. The area is enclosed within the fencing of our garden and we have maintained the area in such as a way as any person would maintain their own garden, and it has a garden shed placed on it, which was there prior to our ownership. There is no other way to access this land without going through our own registered title. We have not sought the permission of any person to use this land, nor have we allowed any other person to use this land, in particular the Registered Owner of title number SY718903 or his agents.” She added that: “…the land is enclosed within the fencing of our garden. When we purchased the property, the fencing was already in place, incorporating the land into the garden of the property.”

41. In her oral evidence, particularly in her re-examination, then some further cross-examination following on from that (which I permitted), she confirmed what she had said in an email of 1 st September 2020 to the Applicant, sent in connection with his then first ADV1 application. She said that: “When we first moved in we had the trees cut back along the left hand side looking out of the back door plus the trees down the bottom of the garden including the trees on the extra bit of land, we paid £600 altogether for this to be done, then after that we tried to keep them cut back as best we could ourselves as was quite expensive. We did try and keep it as tidy as we could, neither of us gardeners. We used a strimmer to keep the tall grass and any undergrowth cut back.” In oral evidence she said that the £600 had been paid to a friend of her partner, who had carried out this work at the same time as he trimmed trees within their own title.

42. She said that while they made some initial effort to try to trace and contact the owner of the portion of land, in the end they did not pursue it further. She said that they did not see the point in buying it, as their garden was big enough as it was and they “didn’t feel as if they needed an extra bit”. She also said that they did not have enough money to buy additional land. Although she could not recall the date or details of the advice, they had the understanding from a solicitor that if they carried on maintaining it and doing what they were doing, the land might “fall to” them.

43. When asked by counsel whether they would have treated the land differently if they had purchased it, Ms. McVeigh said “Maybe”. Her ex-partner was a builder, and so might have built something on it. But since they did not own it, he did not do so.

44. As to the items which were on the land (visible in the 2019 photographs above), she said that these were all there when they first moved in, except for the ladder which they had recently borrowed at that time. They never used (or, it seems, even moved) the covered and disused barbeque. Ms. McVeigh did say, however, that her partner had kept some of his work tools, and some garden tools, in the shed.

45. So a summary of what Ms. McVeigh and her partner did on the land is as follows:- i) some occasional maintenance, tidying and trimming of trees and weeds. ii) some use of the existing shed which stood on the land. They did not erect or repair any fences, erect any structures of their own, or physically extend their garden into it as the Applicant has now done. It is a reasonable inference that the land will have looked largely as it appears in the above 2019 photographs for most of her period of occupation. Ms. McVeigh did not say that they actively “used” the land as such (e.g. as a recreation or play area, or similar) – they just “kept it tidy”.

46. As to her, and her partner’s, intentions towards the land, they were well aware that they did not own it, and could probably not have afforded to purchase it if it were offered to them. Although not expressly asked this, I consider it implicit in her evidence that, had the owner emerged and asked them to cease using the land, they would probably have complied. Ms. McVeigh said that the fact of them not owning the land deterred them from doing anything more substantial with it, such as adding their own structures. They were nevertheless content to “tend” and maintain it, keeping it tidy. They did not pursue the issue of who the owner might be. I accept Ms. McVeigh’s evidence that she did not know this was Mr. Tusz until the time came to swear her ST1 in 2019 prior to the sale, when the matter was clearly looked into by solicitors. Discussion, and application of law to facts

47. The facts of this case are reasonably clear and largely undisputed. All three of the witnesses were honest and straightforward. In the case of Ms. McVeigh, she was doing her best to recall matters from several years ago, with the added stress of her enforced sudden appearance by video link. The gist of her evidence, and what she and her partner actually did, was nevertheless clear, as set out above.

48. I said during oral argument that the whole case might boil down to looking at the 2019 photographs and asking “Is this possession?” The issues might be summarised in more detail as follows:- - if the subject land is enclosed (by fences erected by someone else) so that it is landlocked onto, and accessible only from, other land owned by someone else; what does that other owner have to do, if anything, to possess that subject land? Can there, in effect, be possession of such land just “because it’s there”, adjacent to and enclosed onto a person’s existing land, and not accessible by anyone else? Or does the would-be possessor actually have to do something significant with or on the land; and if so, how much? Further, does the “intention to possess” have to be “manifested” in such circumstances, in the terms described by Slade J. in Powell v. McFarlane ; and if so, how? Minchinton

49. I considered that one case in particular, of which both counsel were aware and referred to at the hearing, might have some relevance. That is the Court of Appeal decision in Hounslow LBC v. Minchinton (1997) 74 P&CR 221. In that case, the disputed land was a strip contiguous with (and not physically separated from) the defendant’s existing garden, but falling within the plaintiff Council’s title. The strip was physically separated from the rest of the Council’s title by an impenetrable hedge and (beyond it) a chestnut paling fence erected by the Council’s predecessor. Laterally, although the dwarf walls of the defendant’s existing garden stopped short of the strip, the ‘gaps’ beyond them on each side were filled with (respectively) a corrugated iron sheet and an elderberry tree. The net effect of this was that the strip, up to the hedge and fence, was “completely enclosed” onto the defendant’s land, and there was no means by which the Council could have obtained access to it (pp. 223-225).

50. It was found that the defendant’s predecessor owner of their house between 1975 and 1986, a Mrs. Ritter (on whose behalf her son-in-law, a Mr. Dunn, carried out tasks at the property, of which he gave evidence) had done the following on or with the strip in this time, while it was enclosed as described above:- “[Mr. Dunn] worked in the garden once a month or so….. he remembered the rear boundary to the garden as marked by a chestnut paling fence and that there were a hawthorn hedge and some elderberry bushes. That was important evidence because it showed that Mr Dunn who worked in the garden assumed that the chestnut paling fence formed the rear boundary. It follows that he considered that he was responsible for keeping the disputed strip tidy. He also said in evidence that there was never any issue that this was part of his mother-in-law's property and that he trimmed the hedge from time to time. He told the Judge that Mrs. Ritter weeded the area at the end of the garden and around the hedge and trimmed and looked after the elderberry bushes. He also said that at the end of the garden and on the disputed strip there was a compost heap.” (p226)

51. In 1987 the defendant, who had by then purchased the house, replaced the corrugated metal sheet and elderberry tree ‘lateral’ enclosures of the strip (which had been blown down in the hurricane of that year) with new fencing, as well as renewing the chestnut paling fence (p224). In that same year they also cleared away the compost heap, “cleared up the garden” and removed some other debris. The dispute with the Council arose when the defendant began to erect a summerhouse which lay partly on the strip. The Council commenced trespass proceedings against her in October 1993, in which she counterclaimed for title by adverse possession to the strip.

52. It was therefore necessary for the defendant to aggregate her possession with that of her predecessor Mrs. Ritter, at least as far back as 1981. It therefore had to be established that Mrs. Ritter was in sufficient adverse possession of the strip at that time i.e. some time before the defendant’s own 1987 and subsequent works.

53. The trial judge held that she was not, but this was reversed on appeal. The Court of Appeal (per Millett LJ) held that:- i) on the primary findings of fact made, the judge had reached an “impossible conclusion”. ii) the judge had been wrong to place emphasis on Mrs. Ritter’s activities not being inconsistent with the Council’s future intentions for the land; this savouring of the “heresy” of implying a licence on this basis which was reversed by Schedule 1 paragraph 8(4) Limitation Act 1980. iii) save perhaps where the true owner had some specific purpose or intention actually known to the possessor, that owner’s intentions were largely irrelevant. The relevant issues were whether that owner had been dispossessed, and whether the squatter was in adverse possession (p230). iv) a fence not erected by the squatter, but by the paper owner, having the effect of completely excluding access to the disputed strip, was “strong evidence of discontinuance of possession”. The mere continued presence of the hedge on this strip did not amount to a maintenance of possession (p230; p232). v) discontinuance of possession was not enough by itself, and there had also to be acts of adverse possession by the squatter (discussing Kynoch v. Rowlands [1912] 1 Ch. 527 , in which the mere occasional straying and grazing of cows in a ditch on the alleged squatter’s side of a wall erected by the owner was insufficient). vi) Millett LJ continued and concluded as follows: “So the question is whether the acts of Mrs Ritter and Mr Dunn during their occupation of the property before and for a short period after the wind storm in 1987 constituted acts of adverse possession. In my judgment, they manifestly did. Indeed, as I understood Mr Lewison, he was disposed to concede that in the case of that part of the disputed strip which lies between the unmarked boundary and the hedgerow there were sufficient acts of adverse possession, for Mrs Ritter and the defendant threw that area of land into their garden. The particular acts relied on were not substantial. Mrs Ritter and Mr Dunn maintained a compost heap upon part of it and kept it tidy in other respects and weeded and trimmed the hedge and so on. But that was the only sensible use of the land. It was rough land at the end of a garden. The fact is that the council did nothing at all. It did not trim the hedgerow and had indeed disabled itself from doing so by putting up the fence.” (p233) vii) the defendant and her predecessor also had a sufficient intention to possess, even though their primary motive in keeping the land enclosed and using it was to “keep their dogs in”. In order to do so they used and treated the enclosed strip as their own land (p233). Submissions

54. Ms. Fisher, for the Applicant, submitted that what Ms. McVeigh and her partner had done during their ownership was sufficient factual possession of rough garden land of this nature. Routine acts of maintenance and tidying, and trimming of hedges of trees were quite enough in this regard, when the land was wholly enclosed onto the rest of their garden. That enclosure, and the inaccessibility of the land to anyone else (including the true owner, whose identity they did not then know), gave them complete physical custody and control of it. They did not need to go further or do more to be in possession of it. In that regard, the fact that Ms. McVeigh said that “topping” of the trees would have been too expensive, or that they chose not to build on the land, was irrelevant; as was the fact that the Applicant has clearly done a lot more to and on the land since 2019. Unsurprisingly, she submitted that this case was on all fours with Minchinton .

55. As for the intention to possess, Ms. Fisher emphasised the point that neither an intention to own, nor a belief that one already owns the land, is required. It is perfectly consistent with an intention merely to possess that the ‘squatter’ knows that they do not own the land, would leave if asked to do so, or would buy it if this were offered. She referred to the observations of HHJ Hazel Marshall QC in J. Alston & Sons Ltd v BOCM Pauls Ltd [2008] EWHC 3310 (Ch) at paragraph 99, applying JA Pye Ltd. v. Graham :- “I reject the argument that there has to be an intention to ‘infringe the rights of the true owner’ which seems to me to be reintroducing the deprecated connotations of conflict attaching to the label “adverse possession”. Pye shows that the necessary intention is simply that of possessing the property, on one's own account and in one's own interests, and sufficiently indefinitely and permanently, as to amount to “possession” in law, and not merely to temporary “use”. So long as one does so without any permission from the owner, in point of fact or law, one is in “adverse” possession, simply because the law makes it adverse to the true owner's interests.”

56. On the aggregation of possession between the Applicant and his predecessors, Ms. Fisher, as stated, assumed that it was necessary to show some express or implied transfer of the predecessor’s inchoate title or interest in the disputed land for the purposes of Schedule 6 paragraph 11(2)(a). While I do not consider it to be wholly clear that this is the case, so that the general aggregation principles confirmed in Site Developments and Haandrikman discussed above may well apply also to a Schedule 6 applicant, I will deal with Ms. Fisher’s arguments in any event.

57. She submitted that there was more than ample material from which such a transfer or assignment could be implied in this case, in that: i) The land formed part of the fenced and occupied curtilage of the property being sold. ii) The transfer contained no wording excluding this land or otherwise rebutting the inference that what lay within the physical boundary was intended to pass. iii) The ST1, completed immediately before the sale, showed both that Ms. McVeigh (and her partner) asserted an interest in the land, and intended the Applicant to be able to rely on her period of possession. That was clearly why it was completed, at the Applicant’s request. iv) The Fittings and Contents Form included the garden shed situated on the land. This was not moved prior to completion. Since it would not make sense to transfer only the shed and not the interest in the land on which it stood, this further supported the implication of an intention to transfer the interest in that land.

58. She also rejected the suggestion that there was any interruption of possession between October 2019 (the date of completion) and December 2019 (when the Applicant actually moved in). This was to confuse possession with residence or occupation. The land remained enclosed and controlled as it had always been in this time, and there was no abandonment by Ms. McVeigh or the Applicant of the possession already established.

59. For the Respondent, Ms. Morton, in briefer but very clear submissions, said that Ms. McVeigh’s evidence fell very far short of establishing either factual possession or an intention to possess.

60. She said that the 2019 photographs, and the evidence as a whole, instead suggested that Ms. McVeigh and her partner had done virtually “nothing” on or with this land. She highlighted the uncertainty even over the one concrete item of maintenance referred to - the £600 paid for trimming of trees – pointing out that there was no evidence as to the precise date of this, or therefore whether Ms. McVeigh had done anything in the first two years of their ownership up to 2009. I point out here that the relevant date by which it must be established that Ms. McVeigh and her partner were in sufficient possession is in fact 19 th May 2010, since this (if aggregated with his own acts) would have given the Applicant ten years up to the date of his first ADV1 application. Ms. Morton sought to distinguish Minchinton , by pointing out the further acts of possession which had been found in that case (such as the 1987 replacement of the fences), and the reference on page 233 to the defendant and her predecessor having treated the strip as their own.

61. Ms. Morton also submitted that any acts of trimming of trees or hedges as might be found to have occurred were essentially aesthetic, and for the enjoyment and amenity of the existing title to number 27 – preventing the additional land from being an eyesore. In this regard they were no more than the equivalent of trimming a neighbour’s overhanging branches, and not acts of possession of the land itself.

62. Ms. Morton contrasted this with the more recent actions of the Applicant, which clearly did amount to possession, and treating the land as an occupying owner. In this regard she drew attention to Ms. McVeigh’s admission that, had she and her partner owned the land, they would “maybe” have done more with it, including building on it.

63. Ms. Morton also laid great emphasis on Ms. McVeigh’s evidence as to her subjective beliefs and intentions, including the point that they would probably not have purchased this additional land as their existing garden “was enough” and that they “didn’t need” more land. She submitted that this, combined with the minor nature of the acts referred to above, rendered Ms. McVeigh’s actions “equivocal” within the meaning of the passage from Powell v. McFarlane quoted above. Mr. Tusz, had he visited the land (although he did not) would not have considered that he had been “dispossessed” from it.

64. The Respondent’s previous pleaded cases as to alleged implied licences for the successors of the 2003 owners, or the lack of an assignment or aggregation of possession, were not significantly pursued. Ms. Morton’s principal point was as to the lack of sufficient or any possession by Ms. McVeigh and her partner before October 2019, or at least by 2009 or 2010, which she submitted was effectively the end of the matter. Analysis and conclusion

65. The first conclusion I reach is that in the unusual circumstances of this case, and by the fact of its physical enclosure and the absence of a reserved easement of general entry or access, the Respondent Mr. Tusz was physically dispossessed of this land from the very outset of the transfer of its title to him.

66. It was for that very reason that – as I accept – he immediately granted an oral licence to Mr. Wharton and Ms. Greenwood, in the terms quoted above at paragraph 31. The land had previously been part of their garden. It was still enclosed onto, and formed part of, that garden. Absent any development by Mr. Tusz, its obvious and natural use would be, and is, “as garden land incidental to the use of… 27 Upper Weybourne Lane” . That was precisely the use, “for their own purposes” , for which Mr. Tusz granted the licence. He added to this an expectation or even obligation as to its maintenance: the licensees would be “responsible for any maintenance which was required.”

67. I consider that such use of garden land, incidental to use of the main property it abuts, and with regular or even just occasional maintenance of it, constitutes factual possession of such land. It is the use one would expect of an occupying owner. It must have been the use which Mr. Wharton and Ms. Greenwood had previously made of this land when it was still part of their title. That use, I find, effectively continued until their sale of number 27 to Ms. McVeigh and Mr. Abbott in August 2007.

68. I find that use of this nature – even just occasional maintenance and use of an additional area of garden land physically enclosed and landlocked onto existing land – is strongly analogous to the use and acts described in Minchinton , above: in particular the acts of the predecessor as described before the later acts of the defendant in that case in erecting new fences. It is sufficient factual possession when the paper owner is physically excluded.

69. That would therefore have amounted to adverse possession – factual possession with an intention to possess – but for the express grant of the licence. The grant of the licence by Mr. Tusz was therefore necessary precisely to prevent such continued possession being adverse. Another analysis of it is that Mr. Wharton and Ms. Greenwood as licensees then exercised their possession on behalf of Mr. Tusz. A still further analysis is that the grant of a licence negates any intention to possess by the licensee in their own right.

70. The next finding I make, which was clear on the evidence, is that the Respondent Mr. Tusz thought that there had been no change in this position on the ground, until 2020. He was oblivious to any changes in ownership and occupation of number 27. As far as he believed and understood, his original vendors – and his licensees – were still in possession of this land (which he never visited) under this licence.

71. He was wrong about that. He could have discovered the up to date position by a Land Registry search, or just by knocking on the door of number 27, at any time after August 2007. He did not do so.

72. I find that Ms. McVeigh and Mr. Abbott effectively carried on essentially the same use and occasional maintenance of the land as had Mr. Wharton and Ms. Greenwood. Like their predecessors, they did not carry out extensive or any works to the land. I accept, however, Ms. McVeigh’s evidence that they carried out some tree trimming and clearance works approximately “when we first moved in”. Although she could not place an exact date on this, I find on the balance of probabilities that it will have been in the first two years of their ownership, so before May 2010. Thereafter, I also accept her evidence that they kept the area generally “tidy” and clear. The 2019 photographs do not show a wilderness, or a former garden area which had ‘gone to seed’ and become overgrown. There was a distinct and appreciable clearing between the trees. I reject the submission that such maintenance and tidying is akin to trimming a neighbour’s trees. It was, as per the terms of the licence to their predecessors described by Mr. Tusz, incidental to the use of the property at number 27.

73. It is true that Ms. McVeigh did not give ‘chapter and verse’ evidence of extensive use of the cleared land for e.g. picnics, recreation, children’s play or any other purpose. She did, however, confirm that she and in particular her partner used the shed on the land – effectively treating it as their own. That, combined with the general (even if occasional) tending and clearing of the land was enough.

74. I also reject the submission that the Applicant’s later and more extensive acts demonstrate that the earlier acts of Ms. McVeigh and her partner (and their predecessors, under licence) were insufficient to amount to factual possession. As was discussed recently by HHJ Johns KC in Lewis-Han v. Williams [2025] UKUT 401 (LC) , paragraphs 51-52, quoting Neuberger J. (as he then was) in Purbrick v Hackney London Borough Council [2003] EWHC 1871 at [20]: “The fact that a squatter could have done more than he did on the land, or in the building, is plainly not enough of itself to defeat a claim for adverse possession.”; although: “..given that factual possession ‘must depend on the particular circumstances’ and must depend on considering what ‘an occupying owner might have been expected to [do]’, I accept that it is not illegitimate to consider what more might have been done.”

75. On the facts of Lewis-Han , mere acts of maintenance of a track were held to be insufficient and equivocal as to an intention to possess, since they could be referable to the exercise of a lesser right. But in the present case, as also in Minchinton , the fact that a later possessor did more with an area of enclosed garden land does not mean that the earlier acts were insufficient as factual possession.

76. As to the intention to possess (or otherwise) of Ms. McVeigh and her partner, Ms. Morton in her submissions fell into the error pointed out by HHJ Marshall QC in J. Alston , in referring to Ms. McVeigh as having had no “intention to trespass”. She did not need to have any such intention. Her knowledge that someone else owned the land, and might one day reclaim it, did not prevent her (and by inference her partner) having the relatively minimal intention to possess required in law, as confirmed in Pye . All they had to intend was to keep doing what they were doing, until someone stopped them. I find that Ms. McVeigh did in fact have some general awareness (and may have been advised) that if this carried on for long enough, the land might “fall to” them, but she did not even need positively to intend to achieve this.

77. Nor was there anything “equivocal” about their actions. Had the Respondent troubled to visit the land or call in at number 27, he would have found new people in possession of the land, in place of the previous possession under his licence of his 2003 vendors. Such possession, in connection with the enjoyment of number 27, was not explicable on any other basis.

78. The key point, and reason why such possession was potentially “adverse”, was the absence of any fresh licence to Ms. McVeigh and Mr. Abbott. As both she and Mr. Tusz confirmed, there were no dealings at all between them. For the reasons set out earlier, no fresh licence can be implied in such circumstances merely because – I have found – Ms. McVeigh and her partner kept doing essentially what the previous possessors had being doing under licence. As I have said, it was that licence which prevented the possession of those predecessors from being adverse and causing time to run. Once that was terminated by their departure, time did run.

79. I find that this position continued right up to the sale to the Applicant in October 2019. I also accept Ms. Fisher’s submissions that, to the extent that it is necessary to establish this in relation to Schedule 6 (if the Site Developments principle of aggregation of periods of possession does not apply generally), on the occasion of that transfer of number 27 there must be inferred to have been an implied transfer or assignment of such title and interest as Ms. McVeigh and Mr. Abbott had in the additional land. That was the only reason why Ms. McVeigh provided the ST1 – to enable her purchaser the Applicant to use it, and so make an application for title by adverse possession if he so wished. She had no possible intention to retain any such title and interest herself. This implication is also consistent with the purported sale of e.g. the shed on the land.

80. As to the brief period between completion of that sale, and the Applicant moving into number 27 and commencing works on the land, I accept Ms. Fisher’s submission that this did not constitute any interruption of the possession already established by then. Far from the Applicant abandoning that possession and control, he retained it, then added to it by his subsequent works. An absence of present physical occupation or use does not equate to abandonment of possession, any more than it would do if an occupying owner in possession of land went on holiday for a month. The land remained enclosed onto number 27 as it always had been.

81. Thereafter, the Applicant continued then significantly ‘stepped up’ that possession, by carrying out the further acts described and pictured above at paragraphs 9 and 10. He has remained in possession ever since. He too has clearly had, at all times, the requisite intention to possess that land in his own right, without any licence, as far as the law will allow. In his case too, it is irrelevant that he knew at all times, and knew when he purchased number 27, that someone else (Mr. Tusz, who was specifically identified in Ms. McVeigh’s ST1) had a registered title to the land. He then made his first ADV1 application on 19 th May 2020.

82. Since the rejection of that first application on 3 rd May 2021, the Applicant has clearly remained in possession of the land, exactly as he was before the application. No evidence or explanation was offered by or on behalf of the Respondent of why he did not avail himself of the opportunity afforded to him by Schedule 6 to retake possession of the land, or issue possession proceedings to recover it, in the following two years. In any event, he did not do so. That, along with his failure to monitor the changes of ownership and possession after 2007, is a matter for him.

83. That being so, the Applicant plainly satisfies Schedule 6 paragraph 6(1). As I have also found:- i) he has established a continuous period of 10 or more years’ possession, by himself and his predecessors, prior to the first ADV1 application. ii) the inchoate title or interest of Ms. McVeigh and Mr. Abbott constituted by their possession of the land up to 25 th October 2019 must be taken to have been implicitly conveyed or assigned to the Applicant, along with the transfer of number 27 itself, on that date. If this is a required element of the application, the Applicant therefore also satisfies Schedule 6 paragraph 11(2)(a) as a “successor in title”. Disposal

84. For these reasons, I find that the Applicant’s application succeeds. I will therefore direct the Chief Land Registrar to give effect to it. Representations on liability for costs may follow by the date stated in the order. The Applicant has clearly been the successful party, so there is a presumption of a costs order in his favour, but I will consider all representations made.

85. I am grateful to both counsel, and their instructing solicitors, for their economy and clarity in presenting the case; and also for their co-operation in enabling Ms. McVeigh to be located and to give evidence. Judge Ewan Paton Dated this 2 nd February 2026 By Order of The Tribunal