Adverse possession

Question 1

What is AP

Answer 1

A claim in AP is a claim brought by a trespasser or squatter who has been in possession of another persons land for a long period of time

Question 2

what are the benefits of AP

Answer 2

• Encourages landowners not to sleep on their rights
• encourages land use for abandoned or neglected land
• prevents unjust loss of land

Question 3

What are disadvantages of AP

Answer 3

• Rewards criminals
• there are other ways to bring back unused land [giving it to the state]
• fails to protect property rights and the register that guarantees title
• ‘land theft’ goes against Human Rights Act 1998

Question 4

How do you establish AP

Answer 4

Buckinghamshire CC v Morgan 1990 created the requirements necessary to establish AP:
1. The AP must be in factual possession of the land
2. The AP must be possessing the land which the requisite intent to possess

Question 5

what case confirmed the requirements of AP?

Answer 5

Pye LTD v Graham 2003
[the requirements apply for both registered and unregistered land]

Question 6

what is factual possession

Answer 6

Powell v McFarlane 1977
The AP must have control over the land in question and must be able to prove that the possessor has been able to deal with the land as an occupying owner might be expected to deal with it and that no one else has done so

Question 7

What is a key case in Factual possession ?

Answer 7

Pye Ltd v Graham 2003 showed factual possession as they maintained the farm land and had a key to the gate which they accessed the property through which the owner did not have
this showed factual possession

Question 8

physical control and factual possession

Answer 8

Physical control amounts to factual possession for example in Buckinghamshire CC v Morgan 1990, installing a padlock and maintaining the land amounted to factual possession
KEY: the possession cannot be temporary

Question 9

factual possession must be adverse to the paper owner

Answer 9

• possession with permission of the paper owner cannot be adverse (Smith v Lawson 1997)
• possession cannot be inconsistent with future use of land

Question 10

which case failed for intent to possess?

Answer 10

Powell v McFarlane 1977
no intention to exclude the world at large.
AP was a 14 year old boy, taking into account his age there was not clear intent

Question 11

Does there need to be intent to possess in AP? .

Answer 11

1. AP does not need to have intention to possess land. can unknowingly possess land (Hughes v Cork 1994)
2. intention to possess not own; Lambeth LBC v Blackburn 2001 where squatter broke into empty council flat and occupied it
3. if AP will fails if he has consent from the paper owner this will defeat any claim

Question 12

adverse possession of unregistered land

Answer 12

paper owner has 12 years to remove AP (s15(1) LA 1980)

Question 13

AP for registered land

Answer 13

LRA 2002 applied
(tip- establish when AP was and add 12 years before 13 oct 2003 old rules but after… new registered land rules apply)

Question 14

after 10 years of AP

Answer 14

the AP can apply to be registered with the title to the land.. possession must be…
1. period of 10 years
2. does not need to be registered for the entirety of the 10 years
3. no application can be made if current proprietor is unable to make decisions mental disability)

Question 15

what happens when AP applies to be registered as new proprietor?

Answer 15

• current proprietor will be notified and will then have 65 working days to submit an objection
• if not objection, AP will be registered as new proprietor
• if objection, paper owner has 2 years to remove or give permission to AP, if not done so AP can apply further and will be registered as title owner

Question 16

exceptions to the principles of LRA 2002

Answer 16

see sch 6 para 5