Adverse possession – can a boat moored on a riverbank acquire title to the riverbed through adverse possession?

[Glennbrown]

Adverse possession – can a boat moored on a riverbank acquire title to the riverbed through adverse possession?

11.06.09

 

 

In Port of London Authority v Ashmore, the High Court had to decide whether the owner of a boat moored against the bank of the River Thames in London had acquired title to part of the riverbed by adverse possession.

 

Title to the riverbed and the space above it was unregistered, and Mr Ashmore's boat had been moored in the same spot for more than 12 years (the limitation period for unregistered land). The boat was tethered to mooring rings set into the riverbank and also secured by an anchor in the usual way. Twice a day, at low tide, it came to rest on the riverbed; for the rest of the time it was afloat.

 

In order to make out a claim in adverse possession, the claimant must show (i) a sufficient degree of physical custody and control ("factual possession") and (ii) an intention to exercise such custody and control on the claimant's own behalf and for his own benefit ("intention to possess").

 

On (i), the court ruled that what actions will constitute a sufficient degree of exclusive possession depends on the nature of the land and the manner in which land of that nature is commonly used. A squatter can be in continuous possession even if he does not use the land continually. In addition, possession of one part of an area can in certain circumstances be treated as constituting possession of the whole area. In this case, the fact that the boat rose and fell with the flowing and ebbing of the tide did not mean that Mr Ashmore relinquished physical possession of the land on which the boat rested at low tide. In any event, the boat's anchor was always in contact with the riverbed.

 

The court also thought that Mr Ashmore had the necessary intention to possess. On that basis his claim to title by adverse possession succeeded.

 

However, the vessel's position at its mooring would not have remained static but would have moved with the wind and the tide. The court therefore had to consider the extent of the land acquired by Mr Ashmore. It ruled that this included the total area between the extreme points where the boat had had contact with the riverbed over the years, together with the space above the bed through which the river flowed, and the air to a reasonable height above that. It also included the area beneath the outline of the deck, even though the boat only rested over that part of the riverbed and not on it, and arguably (though the court did not express a definite view on the point) the space between the boat and the riverbank.

 

Things to consider

The facts of this case are obviously not something that property professionals come across every day. However, one wonders how many other boat owners are in a similar position and whether a "flood" of claims will follow... On that basis the case serves to emphasise to all landowners to take swift action against those who may be trespassing on their land to either evict or regularise their occupation, in order to prevent a claim based on adverse possession from arising.

 

The judge was careful to restrict the ambit of his decision to vessels moored adjacent to the bank of a tidal river. He offered no opinion on whether the outcome of the case could also be applied to vessels moored away from the riverbank, in a non-tidal river or even at sea. Another point to note is that, since the foreshore and riverbed of the tidal part of the Thames is owned by the Port of London Authority, the usual limitation period for unregistered land of 12 years applied to Mr Ashmore's claim. Most foreshore in England & Wales belongs to the Crown; to which a limitation period of 60 years applies.

 

Although the part of the river occupied by Mr Ashmore is subject to a public right of navigation, the Port of London Authority conceded that of itself this would not prevent Mr Ashmore from obtaining title by adverse possession. This makes for an interesting contrast with the case of R (on the application of Smith) v The Land Registry and Cambridgeshire County Council, considered in April's property update. Mr Smith made an application for first registration based on adverse possession of a piece of land which was a public highway. His claim was rejected on the basis that the adverse possession rules could not override the criminal offence created by his obstruction of the highway. The court in Port of London Authority v Ashmore stated that it had not explored the consequence of that part of the river being subject to a public right of navigation because of the Authority's concession, but noted that the existence of the right may mean that the ruling in favour of Mr Ashmore would be a "pyrrhic victory".

[jez1954]

Adverse possession – can a boat moored on a riverbank acquire title to the riverbed through adverse possession?

11.06.09

 

 

In Port of London Authority v Ashmore, the High Court had to decide whether the owner of a boat moored against the bank of the River Thames in London had acquired title to part of the riverbed by adverse possession.

 

Title to the riverbed and the space above it was unregistered, and Mr Ashmore's boat had been moored in the same spot for more than 12 years (the limitation period for unregistered land). The boat was tethered to mooring rings set into the riverbank and also secured by an anchor in the usual way. Twice a day, at low tide, it came to rest on the riverbed; for the rest of the time it was afloat.

 

In order to make out a claim in adverse possession, the claimant must show (i) a sufficient degree of physical custody and control ("factual possession") and (ii) an intention to exercise such custody and control on the claimant's own behalf and for his own benefit ("intention to possess").

 

On (i), the court ruled that what actions will constitute a sufficient degree of exclusive possession depends on the nature of the land and the manner in which land of that nature is commonly used. A squatter can be in continuous possession even if he does not use the land continually. In addition, possession of one part of an area can in certain circumstances be treated as constituting possession of the whole area. In this case, the fact that the boat rose and fell with the flowing and ebbing of the tide did not mean that Mr Ashmore relinquished physical possession of the land on which the boat rested at low tide. In any event, the boat's anchor was always in contact with the riverbed.

 

The court also thought that Mr Ashmore had the necessary intention to possess. On that basis his claim to title by adverse possession succeeded.

 

However, the vessel's position at its mooring would not have remained static but would have moved with the wind and the tide. The court therefore had to consider the extent of the land acquired by Mr Ashmore. It ruled that this included the total area between the extreme points where the boat had had contact with the riverbed over the years, together with the space above the bed through which the river flowed, and the air to a reasonable height above that. It also included the area beneath the outline of the deck, even though the boat only rested over that part of the riverbed and not on it, and arguably (though the court did not express a definite view on the point) the space between the boat and the riverbank.

 

Things to consider

The facts of this case are obviously not something that property professionals come across every day. However, one wonders how many other boat owners are in a similar position and whether a "flood" of claims will follow... On that basis the case serves to emphasise to all landowners to take swift action against those who may be trespassing on their land to either evict or regularise their occupation, in order to prevent a claim based on adverse possession from arising.

 

The judge was careful to restrict the ambit of his decision to vessels moored adjacent to the bank of a tidal river. He offered no opinion on whether the outcome of the case could also be applied to vessels moored away from the riverbank, in a non-tidal river or even at sea. Another point to note is that, since the foreshore and riverbed of the tidal part of the Thames is owned by the Port of London Authority, the usual limitation period for unregistered land of 12 years applied to Mr Ashmore's claim. Most foreshore in England & Wales belongs to the Crown; to which a limitation period of 60 years applies.

 

Although the part of the river occupied by Mr Ashmore is subject to a public right of navigation, the Port of London Authority conceded that of itself this would not prevent Mr Ashmore from obtaining title by adverse possession. This makes for an interesting contrast with the case of R (on the application of Smith) v The Land Registry and Cambridgeshire County Council, considered in April's property update. Mr Smith made an application for first registration based on adverse possession of a piece of land which was a public highway. His claim was rejected on the basis that the adverse possession rules could not override the criminal offence created by his obstruction of the highway. The court in Port of London Authority v Ashmore stated that it had not explored the consequence of that part of the river being subject to a public right of navigation because of the Authority's concession, but noted that the existence of the right may mean that the ruling in favour of Mr Ashmore would be a "pyrrhic victory".

 

Last ime I looked this was not a forum for unemployed laywers - perhaps you need to get out more?

 

Jez

[Ange]

Last ime I looked this was not a forum for unemployed laywers - perhaps you need to get out more?

 

Jez

 

I read the OP's post with interest and looked forward for a well informed response. Still waiting.

 

Edited to add - this forum is for anyone interested in the inland waterways - whatever their past and present profession - I feel more than a little bit cross that you've debunked someone's well researched, valid question with a trite one liner.

 

Edit number two - you're obviously very new to this forum - get to know the diversity of members before you start throwing negative comments.

Edited June 11, 2009 by Ange

[carlt]

Last ime I looked this was not a forum for unemployed laywers - perhaps you need to get out more?

 

Jez

A boater may have acquired the freehold of his mooring, for free, through adverse possession.

 

This is entirely relevant to the forum and very interesting.

[Ange]

A boater may have acquired the freehold of his mooring, for free, through adverse possession.

 

This is entirely relevant to the forum and very interesting.

Thanks Carl - that took me several attempts and still didn't say it as succinctly as you. Doh!

[Radiomariner]

A boater may have acquired the freehold of his mooring, for free, through adverse possession.

 

This is entirely relevant to the forum and very interesting.

 

Agreed. I look forward to reading further response to the OP.

[valrene9600]

cor blimey that was hard reading but i ploughed on and although it was not my kind of reading i agree with ange and respect the right of glennbrown to publish.

[stickleback]

Fascinating! Surely this will be followed by a flood of applications? There must be one or two boats which have been on the same canal side mooring for years - will they win the same rights??!!

 

Andrew

[Justme]

There must be one or two boats which have been on the same canal side mooring for years - will they win the same rights??!!

 

 

I would have thought that canal boats would have a contract / rental agreement for the mooring whilst I think that he was just moored up with no contract.

[Bagpuss]

Any hopes of a citation number?

 

Smelly

 

employed lawyer (ish)

Edited June 12, 2009 by Bagpuss

[carlt]

Any hopes of a citation number?

Clicky!

[Bagpuss]

Clicky!

 

Cheers!

[Smelly]

That makes for an interesting read, cheers Carl for not slating my laziness (yet?)...

 

It is a very strong, well reasoned decision that I would imagine will hold for a long time to come. I wonder whether Glenn's point is correct in that a number of claims could result from that, I just hope that successive judges are as well reasoned.

 

Well done Mr Ashmore, who had the nerve to stand in front of the Court and make what is evidently a reasoned and well presented argument, despite the barrister staring at him!

[Mat B]

Fascinating! Surely this will be followed by a flood of applications? There must be one or two boats which have been on the same canal side mooring for years - will they win the same rights??!!

 

Andrew

 

I am aware of a case in Peterborough where a moorer gained title to a piece of land that he had fenced off and occupied for about 20 years.

[2asabine]

With regard to the Adverse Possession, can anyone tell me which solicitor fought this case, or any others who would be capable of fighting such a case in London? Jeannie

[O'Mali]

Very interesting and thanks for sharing.

[Smelly]

With regard to the Adverse Possession, can anyone tell me which solicitor fought this case, or any others who would be capable of fighting such a case in London? Jeannie

 

Mr Ashmore was a litigant in person. If you know the rules (and are carrying a copy of the decision) then you can do it yourself.