Adverse Possession

Question 1

What is adverse possession?

Answer 1

AP sometimes described as ‘squatters’ rights’ is a legal principle under which a person does hold legal title to a piece of property.

Useful information: acquires legal ownership based on continuous possession or occupation of the land without the permission of the legal owner

Question 2

Why is Adverse possession allowed?

Answer 2

• Benefits the society in that it promotes land being put to use instead of being neglected
• Stabilisation of title (for vendors/mortgages)
• landowners should value and take care of their land (action against trespass)
• Avoids uncertainty when ownership is unclear
• Relativity of title (not who owns it but who has a better claim)

Question 3

What is required to establish adverse possession?

Answer 3

Three elements must be proved:

• the fact of actual physical possession (factum possessionis)
• intention to possess (animus possidendi)
• possession must be adverse (without consent)

Question 4

What is the criteria for factual possession? What case are they set out in?

Answer 4

Mulcahy v Carramore Pty Ltd [1974]

1 - possession must be open (not secret)
2 - possession must be peaceful (not by force)
3 - pssession must be without consent of the owner

Question 5

Further cases for the criteria of factual possession

Answer 5

Buckinghamshire CC v Moran [1990] - Slade J - ‘not an intention to own, or even an intention to acquire ownership but an intention to possess’ - used fences, hedges & a new gate with a padlock which showed a clear excluding of the world

Seddon v Smith [1877] - an intention to possess requires an intention to exclude the world including the paper title owner as far as it is reasonably practical to do so

Pye v Graham - ‘a sufficient degree of physical custody and control’

Powell v McFarlane [1979] - ‘what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, the nature of the land and the manner in which of the nature is commonly used or enjoyed - Slade J

London Borough of Lambeth v Blackburn [2001]

Question 6

What are the requirements for AP of unregistered land?

Answer 6

1 - prove factual possession and intention to posses
2 - prove 12 years of continuous possession
3 - proven by statutory declaration

Question 7

Issues in Pye v Graham

Answer 7

1 - admission of title by the squatter is not inconsistent with the squatter being in possession in the meantime’ Lord Brown-Wilkinson
2 - the second issue is to be considered here is whether awareness of the paper owners’ proposals for the land might negate the intention to possess

Question 8

What is section 15.1 of the Limitation Act 1980?

Answer 8

no action shall be brought by any person to recover any land after the expiration of 12 years form the date of which the right of action accrued to him or if it first accrued to some person through whom he makes his claim to that person

Question 9

What is section 17 of the Limitation Act 1980?

Answer 9

expiration of the period prescribed by this act, the title of the person to the land shall be extinguished.
- the limitation period set out in s15 prevents the original landowner from bringing a claim against the adverse possessor once the 12 years expires from the date at which ‘the right of action accrued to him

• from the moment the squatter possesses the land he has an estate in fee simple however, the paper owner has better title during the 12 year accrual period it’s all relativity of title
• then at the 12 years, s17 extinguishes the paper owners title is extinguished meaning the claimant now has better or only title to the land