Upper Tribunal ruling serves as a reminder of key principles in adverse possession claims

The recent decision of the Upper Tribunal (Lands Chamber) in John Crofts v Valerie Jean Welsh [2026] UKUT 35 (LC) serves as a useful reminder of the points to be proven when claiming adverse possession.  In particular, it confirms that permission to occupy land from a third party rather than the owner of land does not disrupt a claim for adverse possession.

The dispute concerned Mr Croft (the Respondent) and his appeal of the First Tier Tribunal’s (the FTT) decision, which granted Ms Welsh‘s (the Applicant) application for adverse possession. The Upper Tribunal (the UT) dismissed the appeal and there are key takeaways which are relevant to adverse possession claims.

Facts

In November 1983 the main farmhouse of Bank Hall Farm was conveyed to the Applicant and her late husband by the Pope family. A separate piece of land to the south of the main farmhouse had been conveyed in December 1982. The Applicant’s application concerned the larger field to the south of Bank Hall Farm and the adjoining land.

The field contained no physical features but interestingly consisted of three separate titles at HM Land Registry. One piece of land was (prior to the Applicant’s application) unregistered, the second was registered to Mr Peter Pope, and the third was registered to the Respondent’s parents (who had since passed away).

The Applicant previously made successful applications for adverse possession of first two parts of the field. This dispute concerned a third part of the field.

From the mid-1980s the Applicant had sole use of the field, and she installed a metal gate with a lock, keeping the only key. Around this time, the Applicant told Mr David Pope that she was keeping her horses in the field, and he had responded that he was “not bothered” by this. Following this, the Applicant and her family had exclusive use and control of the field for their horses, regularly maintaining the fencing and hedge boundaries and removing invasive plants.  

The Respondent’s main challenge to the adverse possession claim was on the basis that the Applicant had been using the field as a whole with the permission of the Pope family. The Respondent also argued that he had, on several occasions, accessed the field by climbing over fences or walking through the brambles on to the disputed land. He accepted, however, that the only access (other than through the brambles) was through the gate installed by the Applicant.

Issues

The FTT was required to consider:

• whether the Applicant’s actions amounted to a factual possession of the disputed land; and
• whether the Applicant had acted with an intention to possess the disputed land.

FTT Decision

The FTT accepted the Applicant’s evidence “without reservation”, noting that the evidence of the Applicant and her other witnesses was “clear and straightforward”. In comparison, the FTT noted that the Respondent had failed to file or serve a witness statement.

The FTT found that the field was only suitable for the use of keeping horses and the Applicant had used it in this way. Most importantly the erection and locking of the gate to the field, and retaining the sole key, was a clear sign that the Applicant sought to control and possess the field, including the disputed land, to the exclusion of all others. Therefore, there was factual possession with the necessary intention.

The FTT considered whether the Applicant’s discussion with Mr Pope could amount to consent to use the disputed land, which could defeat a claim for adverse possession. The FTT noted, however, that even if that could be the case, as the disputed land was not owned by the Popes, they would not be able to consent to the Applicant’s use.

The FTT ruled in favour of the Applicant and directed HM Land Registry to register the Applicant as owner of the disputed area of the field.

UT Decision

The Respondent then applied for permission to appeal and produced a transcript of a decision of a Crown Court Judge. The Judge’s decision concerned a criminal case brought against Mr Pope for causing alleged criminal damage in the field, in which the Applicant had given evidence and suggested she had the consent of the Pope family to use the field.  
The decision of the Crown Court Judge had been that there was no case to answer for Mr Pope. The FTT gave permission to appeal but without permission to adduce new evidence.

The Respondent argued that the “permission” of the Pope family defeated a claim for adverse possession in two ways. Firstly, that if the Applicant received permission from a member of the Pope family to occupy the Respondent’s land possession would not be adverse to the legal ownership. The UT rejected this argument, highlighting that a third party could not give permission to use land which they did not own.

The UT, therefore, refused the appeal and found that the disputed land should remain in the ownership of the Applicant.

What are the key takeaways for adverse possession claims?

• A clear record of evidence is essential. An adverse possession claim requires the applicant to demonstrate both factual possession of the land and an intention to possess for a number of years.
• If, as here, the applicant has physically enclosed the land to the exclusion of others they will have a strong argument of the necessary possession and intent.
• The grant of consent to use by a landowner can defeat a claim for adverse possession. Adverse possession is possession without consent. However, consent from a third party (who was not acting as agent for the owner) is not sufficient.

This Insight does not constitute legal advice, and you should seek advice on the specific circumstances of your case. Please contact Matt Cordwent or your usual Charles Russell Speechlys contact if you have any queries.