Adverse Possession Flashcards
What is the law of adverse possession
A set of rules that offers the opportunity to a mere trespasser to acquire a better title to land than the person who legally owns it
Why Adverse possession developed
The fact that the common law have developed principles that might operate to deprive a paper owner of title to land is not a surprise. Historically common law has been more concerned with the productive use of land rather than abstract rights.
Case for AP
Hounslow v Minchinton - Minchinton used the land, tending to it, planting, bringing it back into use whereby it was otherwise being wasted. Successful claim of AP
What has impacted AP
LRA 2002 - the new scheme led to successful new claims of AP of registered land being considerable slowed to a ‘thing trickle’ Dixon
How is AP applied
In modern law, there remains once common set of rules how AP might be established but two sets of divergent rules about the effect of such a claim on the paper owner’s title. The rules common to both registered and unregistered land are the substantive principles developed through case law and are now largely set out by the house of lords in Pye v Graham
Critic of development
Rules are the same irrespective of registered or unregistered land. These relevant principles have been established through case law and therefore they are flexible. This is a benefit as it has allowed rules to change as society has developed over time. However, although they are changeable and malleable, this has meant that they have not always formed a uniform approach, therefore there was a degree of uncertainty and the house of lords in pye v Graham sought to bring stability to the law by providing a framework within which cases could be considered
Pye v Graham
Pye allowed his neighbours, the Grahams, to use 23 hectares of land that he owned, under a grazing agreement. The document expressly stated the agreement would end 31 December 1983 and that to continue the arrangement a new contract would need to be entered into. Pye did not enter another agreement because he wanted the land for development. The Grahams continued to occupy the land and after 12 years they sought to obtain it under the law of AP. The HoL gave the criteria necessary for an AP claim. This is set out to be:
- Intention to possess the land
- Physical possession
Intention to possess
The necessary intent is an intent to possess not to own and an intention to exclude the paper owner only so far as is reasonably possible. Thus, the claimant is not required to prove that they believed they owned the land, or wanted to acquire it, but more simply that they meant to exclude all others if possible. This is crucial, it means the focus is on the intentions of the claimant not the landowner. Consequently, it is immaterial whether the claimant was aware that the landowner had an intention to use the land in the future that was consistent with the present use by the claimant – the landowners state of mind is irrelevant.
Intention to possess can exist if the claimant would have been prepared to accept permission to use the land had it been offered, or if they would have quitted possession if required. A later admission of the landowner’s title by the claimant is not inconsistent with the claimant having an intention to possess in the mean time. That was the position in Pye itself. Graham made it clear that he would have accepted the grazing licence from Pye, but one was not offered.
What is fatal to intention to possess
A belief that the land is currently possessed with permission of the paper owner is fatal. This was the case in Walters. The claimants belief, even if mistaken, that the land was held under licence meant that they simply could not have the relevant intention to possess. You cannot intend to treat the land as within your legitimate control if you believe you are permitted to be there by the owner.
Unilateral permission given by the paper owner can be fatal, even if the possessor does not acknowledge or accept the permission. This was the case in Buckler. Paper owner unilaterally and unexpectedly gave permission to a possessor. No evidence this had been accepted nor requested. Point is that the permission might be evidence that the AP no longer has intention to possess. This was confirmed in Privy Council case Smith
Previous occupation, intention to possess
Demonstrated by Pye, if the alleged adverse possessor once occupied the land with permission of the paper owner but continued after permission ended ,this can be sufficient to support a claim of AP
Physical possession
AP must also demonstrate the physical taking of possession.
- Whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without consent of the owner.
- Factual possession means a sufficient degree of physical custody and control for one’s own use.
- Powell, Slade J found that whether the alleged possession has been dealing with the land in question as an occupying owner might have been expected to deal with it and no-one else has done so.
- Whole activity is relevant. Individual activities may seem equivocal or trivial, but taken together paint a picture of a person in control of land that amounts to physical possession.
Impact of Human Rights
Following the decision in Pye v UK, the law of AP as it applied under the 1925 Act and 2002 Act, is consistent with Human Rights law, in particular art 1 protocol 1 to the convention. The law of AP is a proportionate and legitimate response to public interest concerning the need to limit claims in relation to land and paper owners cannot please a violation of their rights if they lose their title to an Adverse Possessor.
Ofulu, Court of Appeal confirmed that the principles of adverse possession are, as a matter of principle, compliant with human rights law and thus a landowner could not seek to challenge a loss of title on grounds of human rights.
Argument proposed that the recovery of possession from an AP without title contravenes the AP’s right to a home under art 8. This theory was tested in Malik where Air Alan Ward noted that Art 8 could apply where squatters had trespassed onto private land and established a home. However found that this would be very rare that, for their removal, to be so disproportional to the rights of the landowner as to be contrart to art 8.
AP and Unregistered Land
The doctrines of the effect of AP on unregistered land is based on the principle of limitation actions.
- a person must sue for an alleged wrong within a specified period of time from the moment the wrong took place.
- This means that a person may be statute barred from bringing a claim against the AP to recover possession of their land after the period of limitation has passed.
- Thus, as against the AP, the paper owner has no means of recovering the land the AP as acquired a better title.
In the majority of cases this limitation period will be 12 years from the moment of AP of the unregistered title.
s15 Limitation Act 1980
However, there are exceptions and additional rules for charities and leases.
How limitation clock stopped to prevent AP
- Successful action for possession or declaration of title by paper owner
- s29 and 20 Limitations Act 1980 provide AP cannot succeed if they have acknowledged paper owner title before expiry of limitation period
- Permission given by paper owner
- Paper owner retakes physical possession
Effect of limitation period being done
Once limitation period runs its course the paper owners right to sue and title are extinguished. Should be noted however, there is no conveyance of the land from the paper owner to the adverse possessor. However, with proof of adverse possession, the AP can convey the land etc, Must apply for first registration