8. Adverse Possession Flashcards
Why is adverse possession valuable?
It ensures the land remains an economic commodity and is not withdrawn from the economy through abandonment. It can also be a useful way to solve small boundary disputes. However, some believe that adverse possession amounts to theft of land.
What does adverse possession mean?
It means that possession is inconsistent with the title of the true owner.
What must the true owner have done in order to allow adverse possession?
They must have ceased to use the land = they must have discontinued possession or they must have been dispossessed.
What is the difference between “discontinued possession” and “dispossessed”?
When the true owner ceases to use the land they have discontinued possession. The squatter then takes possession. Dispossession is when possession is taken from the true owner by the squatter, who then takes possession.
What must the adverse possessor prove?
Factual possession and intention to possess. And adversity of possession.
What does ‘factual possession of the land’ mean?
It means that the claimant has taken possession of the land and dealt with the land as an absolute owner would have done.
How does factual possession vary depending on which land is in question?
It will depend on the circumstances of the case, including the nature of the land and how it has been used, e.g. marshy land, shooting over the land is all that can be done with it. So that counted as factual possession.
Is fencing seen as factual possession?
Yes, if the squatter had put it up for their own purpose. However, not in the case of Basildon Council v Charge p1996, where a fence had been put up to keep geese in for a short time, until the geese were removed, and consequently, the fence was removed.
Does the adverse possessor have to show that the land was inaccessible to others?
No, in Pilford v Greenmanor Ltd [2012], it was held that an adverse possessor did not have to show that the land was inaccessible to others. The nature of the land in question had to be looked at. Here, the respondents were claiming adverse possession of a compound. The acts they relied on included putting up a fence, nailing up a gate, storing materials and making a driveway. There was no legal requirement for the claimants to enclose the compound such that nobody could gain access without their permission. These were open (obvious) acts of adverse possession.
Does paving an area with concrete count as adverse possession?
Again, it depends on the actual possession and depends on the nature of the land, but in Thorpe v Frank [2019], Thorpe paved an area in front of her house belonging to Frank, who did not complain. When she later fenced the area off and claimed adverse possession, the court ruled that paving the area with a permanent surface was a clear act of possession.
Can parking cars on land count as adverse possession?
It depends on the context, but in Central Midland Estates v Leicester Dyers [2003], D’s employees used an adjacent area of land for car parking and delivery vehicles were parked there for loading and unloading. The claim failed - the parking did not demonstrate the necessary evidence of actual possession; further acts such as enclosing the land were required.
Can sharing possession with the paper owner satisfy the requirement of possession?
No, it cannot.
What happens if a period of possession is interrupted by the true owner?
The clock will stop running for an adverse possessor if the period of possession is interrupted by the true owner. This interruption can be very short but the true owner must take exclusive possession.
How much of an interruption counts as an interruption for adverse possession?
In Zarb v Parry [2011], the Zarbs had tried to take possession of a strip of land which they believed was theirs, but which was being adversely occupied by the Parrys. The Zarbs had gone on to the strip of land, had banged in some fence posts, removed some of the original fencing and enclosed the strip with a surveyor’s tape measure, which had taken 20 minutes. The Parrys had returned whilst they were doing this, and when the Parrys said that they would call the police, the Zarbs had left. It was held that there had been no interruption in the adverse possession of the Parrys. Although the Zarbs had intended to take possession, they had not seen this through and could not be said to have taken possession in any meaningful sense.
What does ‘intention to possess’ mean?
It means that the claimant is showing intention, in their own name and to the whole world, to acquire possession of the land. An intention to own or acquire ownership doesn’t count - it is the intention to possess the land that counts. E.g. it is fine to mistakenly think you own or are a tenant of the land, as long as you are possessing the land.
What happens if the owners change after the previous owners granting a licence and the claimant still carries on farming the land?
If the squatter has an intention to possess indefinitely if possible, but accepting that the land will have to be given back if the paper owner demands it, this is sufficient to show the intention to possess.
How might someone show intent to possess to the world?
Putting a lock on a gate, which shows the world and excludes the paper owner.
Can mooring a boat on the bed of a river be grounds for adverse possession?
It could be, but in the case or Port of London Authority v Mendoza [2017], an adverse possession claim was rejected as it wasn’t obvious that the boat was being used as a home, and even if it was, that the owner intended to stay forever or to exclude others from the river bed.
If the adverse possessor was given permission to be on the land, can they claim for adverse possession?
No, permission to be there negated adverse possession.
Outline Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988]?
In Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988], the Court of Appeal held that the mere assertion by the true owner of a claim to possession of land in a letter sent to a squatter did not disrupt the squatter’s possession and was not sufficient to prevent the squatter obtaining title by adverse possession.
If the claimant was in occupation of land whilst negotiations took place in respect of a transfer of the interest in the land, an implied licence (permission) is deemed to have arisen which allows the claimant to stay on the land. Accordingly, time did not begin to run until the negotiations broke down
Would a letter asserting that the true owner has possession of the land sent to a squatter disrupt the squatter’s possession?
No, it would not. See Mount Carmel v Peter Thurlow [1988].
Is there adverse possession in the following two scenarios? The possessor already believes (mistakenly) he owns the land or the possessor mistakenly believes that he has a licence to be there?
If he mistakenly thinks he owns the land, adverse possession will apply. If he mistakenly believes he has consent, it will not. See Clowes v Walters [2005].
When will the time period start to run again if it has paused?
Once an acknowledgement of the owner’s title by writing or party payment. If the full period has elapsed, such acknowledgment does not revive any right to recover the property. E.g.
How could a petition going round a block of flats acknowledge true ownership?
In Lambeth London Borough Council v Bigden [2000], the court considered what amounted to an acknowledgment of the true owner’s title. B occupied a flat as a squatter. L purchased the block of flats. In 1989, a petition had been delivered to L which was signed by at least one resident in each flat. The petition was part of a campaign by the residents against a proposed sale by L to a housing association. The court held that the petition implicitly acknowledged L’s right to sell and thus L’s title to the land.
If an acknowledgement of the true owner is on a Tuesday, when does the squatter start to count again?
They can start counting again from the Wednesday. An acknowledgment of title is effective only on the day it is given or served. An acknowledgment does not continue after that day, which means that the squatter can start to count time again from that day.
What is the hypothetical licence?
It was an idea that when a person adversely possessed land but the true owner intended some particular use for that land in the future, then, provided the acts of the squatter did not interfere with the plans of the true owner, the adverse possession was due to an implied licence, an implied permission. Had it become established, the doctrine would have ended many claims by way of adverse possession.
Why did the idea of the hypothetical licence disappear?
Para 8(4) Part 1 Sch 1 LA 1980, however, put an end to the idea of the hypothetical licence by stating that a licence was not to be assumed simply because the squatter’s use of the land was not inconsistent with the future plans of the true owner.
However, if land the squatter is occupying is undeveloped and the squatter is aware of the purpose the owner has in mind, then very clear evidence is required for adverse possession to be established.
When does the running of time begin?
The running of time begins against the owner entitled in possession from the time another takes adverse possession, being either the date of dispossession or the date of discontinuance of possession. The conditions of factual possession, intention to possess and adversity of possession must also be met at this date in order for the time period to start running.
In unregistered land, when is the “paper owner” time-barred from claiming their land back?
12 years from when the adverse possession started under s15(1) LA 1980. Or 30 years for Crown land.
If a squatter dispossesses another squatter and the first squatter abandons their claim to possession, from when will the possession run?
The second squatter can obtain title to the land by the 12 years’ adverse possession comprising the total period of occupation of both squatters.
