Guernsey Legal Resources

  Held: (1) Exclusive possession was not a prerequisite to maintaining an action for trespass. Possession of some sort was essential but it was clear that possession could be divided between the parties and an action in trespass could be brought by one party in possession against another party who entered the land without the permission of the first, unless that other party had a better right to possession (St. Helier (Parish) v. Manning, 1982 J.J. 183, distinguished; J.A. Pye (Oxford) Ltd. v. Graham, [2003] 1 A.C. 419, dicta of Lord Browne-Wilkinson applied).

  (2) To establish the legal possession of either party, it had to be proved that the party had (a) “factual possession”—a sufficient degree of physical control and custody; and an “intention to possess”—an intention to exercise such custody and control on his own behalf and for his own benefit. Whether the defendants had any possession of the parking garage, either alone or jointly with other apartment owners, depended on the interpretation of the conveyancing documentation. The conveyance stated only that the defendants entered possession of their apartment and did not mention the parking space, though the definition of the parking garage stated that it was “for the exclusive use of the occupants” of the apartments. It was clear, however, that the grant of a right to use land did not necessarily involve granting possession of it. It would be for the Jurats to decide whether the defendants had possession (as defined above) as an adjunct of their right to park in the garage and whether the plaintiff had a greater degree of possession and/or a greater degree of control of the premises than the defendants had to support its action for trespass (J.A. Pye (Oxford) Ltd. v. Graham, [2003] 1 A.C. 419, dicta of Lord Browne-Wilkinson applied).