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To establish factual possession, P must show a degree of control over the land. In the scenario, it can be said that in 2003, factual possession was not established because simply parking an unlimited amount of cars on the land was not enough to demonstrate sufficient control and that more needed to be done for example, putting up car parking signs or enclosing the land. Failure to provide these signs may also show that he did not have the intention to possess because there was no outward indication that he intended to use the land as his own. In addition, nobody was restricted from parking in the land.
P may then argue that adverse possession was established in 2003 by growing vegetables and erecting a fence. As was held in Dyer v Terry, cultivating the land and erecting a fence to protect his crops, can be regarded as a sufficient act, amounting to possession. However, factual possession must be for an unbroken time and as P was growing seasonal vegetables, this suggests that the land was only being used for this purpose for certain periods of the year. This can be which regarded as a break in the continuation of his possession.
The courts view fencing as good evidence of physical control however, the courts assess the purpose for erecting the fence. In Inglewood Investments Company Ltd v Baker for example, it was held that there was no intention to possess the land because he erected the fence to keep sheep inside the property. The decision can be distinguished with the present case because the purpose for erecting the fence in the scenario was to exclude other animals from entering into the property, possibly giving P a degree of control over the land.
An issue here however is whether this is sufficient enough as an ‘exclusion of all other persons including the paper title owner.’ If the fence big enough to exclude human beings as well as animals then this may be evidence of control otherwise, if it was a small fence then people could possibly still have had access to the land. However, the court in George Wimpey & Co Ltd v Sohn found that the fence and hedge erected was equivocal acts because they were meant to protect the property from public intrusion rather than to exclude the owner. The same may be said here because his intention was to protect his crops from animals and not the latter. More recently however, the courts have taken the view that it is the effect of the fencing alongside other actions that are assessed and not merely the motive to determine the intention to possess.
In addition, the fence was erected to protect seasonal vegetables from animals which sugges
