McClelland v Elvin & Ors [2017] EWHC 2795 (QB) (08 November 2017)

McClelland v Elvin & Ors [2017] EWHC 2795 (QB) (08 November 2017)

The claimant failed to prove factual possession for twelve years without consent, as the judge found the claimant was a tenant or licensee for all or a substantial part of the relevant period, defeating the adverse possession claim under the test in Pye v Graham.

Citation
[2017] EWHC 2795 (QB)
Parties
Claimant/applicant: Garry McClelland; First Defendant/respondent: David Elvin; Second Defendant/respondent: Damien Elvin; Third Defendant: Dimitrov Lipchek
Jurisdiction
England and Wales
Judgment Date
08 November 2017
Procedural Posture
Appeal / Permission to Appeal Out of Time and Substantive Appeal
Outcome
Appeal dismissed
Legal Topics
Adverse Possession, Title to Land, Appeal Procedure, Burden of Proof
Property Law Civil Procedure Adverse Possession Title to Land Appeal Procedure Burden of Proof

Case Brief

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Parties

Garry McClelland

Claimant/applicant

David Elvin

First Defendant/respondent

Damien Elvin

Second Defendant/respondent

Dimitrov Lipchek

Third Defendant

Procedural Posture

Appeal / Permission to Appeal Out of Time and Substantive Appeal

Legal Issues

  1. 1 Whether the claimant acquired title to 9 Boudicca Mews by adverse possession
  2. 2 Whether the claimant was in possession for the requisite period of at least twelve years
  3. 3 Whether such possession was adverse

Ratio Decidendi

The claimant failed to prove factual possession for twelve years without consent, as the judge found the claimant was a tenant or licensee for all or a substantial part of the relevant period, defeating the adverse possession claim under the test in Pye v Graham.

Court Disposition

Appeal dismissed

Orders

  • Permission to appeal out of time granted
  • Substantive appeal dismissed