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Rea Murray acts in one of the first cases where the judge cited the COVID 19 pandemic in support of his decision

On an application for an interim injunction against a trespasser to land, His Honour Judge Gerald cited, at the conclusion of the one day hearing on 17 March 2020, the isolation measures put in place to slow the spread of Covid-19 as one of the reasons for allowing the application: the need for personal space was a factor in considering where the balance of convenience lay. 

Long leaseholders were in adverse possession of land adjoining their shared garden, having possessed and used it as their own to the exclusion of the paper owner since 1989. As leaseholders, they took possession for their landlord under their leases by encroachment, whereby the land accrues to the lease. Their claim for adverse possession would be made under the “old” regime, prior to the new scheme introduced by the Land Registration Act 2002. However, before the leaseholders could issue a claim for adverse possession, a persistent trespasser entered the land and erected a metal gate, separating the leaseholders’ garden from the land and excluding the leaseholders from the land. The leaseholders were able to issue proceedings in trespass because trespass is actionable at the suit of the person in possession of the land, and a person can sue for trespass without being the owner or deriving title from the owner, indeed even if they are in possession adverse to the owner. 

There was a serious question to be tried on this basis, but the learned judge also held that in a situation where people were being asked to remain in their personal space, this was a factor to consider in determining where the balance of convenience lay, and this favoured granting the inunction. The leaseholder regained the additional plot of land. 

Rea Murray, instructed by Hamlins, represented the leaseholders. 

 

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