Adverse Possession

Question 1

Pye (definition over adverse possession)

Answer 1

LBW lamented the confusion over the “adverse” requirement, stating that the question is simply whether the squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.

Question 2

What is the meaning of “adverse”? Three implications.

Answer 2

“Adverse” means S must be there w/o O’s consent (Pye).

1. Possession pursuant to a legal right (e.g. a lease) cannot be adverse (Thomas)
2. If permission is given by O for a specific period, possession may become adverse at the termination of that period.
3. The clock may be stopped if S’ occupation becomes permissive or S acknowledges O’s title.

Question 3

Long

Answer 3

In leases, it is presumed for purposes of AP that an oral periodic tenancy ends when rent ceases to be paid

Question 4

Pavledes

Answer 4

Giving written unilateral consent to a squatter which is not rejected will stop the clock, silence being equivalent to a lack of rejection so long as the offer of the licence is gratuituous

Question 5

Sanders

Answer 5

If S acknowledges O’s title in writing before AP is completed, time will stop running, but unless the acknowledgment is continuing a new AP period then commences (Limitation Acg 1980, S.29-30)

Question 6

Pye - “adverse”; Leigh v Jack

Answer 6

Leigh overruled; S’ use need not be inconsistent w/ O’s intended use of the land to be adverse.
The only relevance of O’s intended use of the land is that where S is aware of this intended use and uses the land in a manner not inconsistent w/ the intended use, this may support the finding that S lacked the animus possidendi (though it is unlikely to do so if O has been physically excluded)

Question 7

Two elements of possession

Answer 7

(i) Intention to possess
the land to the exclusion of all others, including the paper owner “so far as is reasonably practicable and the law will allow”
(ii) S must be exclusively dealing w/ the land in question as an occupying owner might have been expected to deal with it (Pye)

Question 8

Moran

Answer 8

Even if C would have abandoned possession if required, the animus possidendi may still be found, since the intention is to possess, not to own

Question 9

Pye (animus possidendi)

Answer 9

The mere knowledge of another’s claim to the land, or a willingness to pay for one’s use if asked, is no bar to adverse possession

Question 10

Clowes Developments

Answer 10

A belief, mistaken or not, that the land is currently possessed with the permission of the paper owner is fatal to an AP claim

Question 11

Cully

Answer 11

An acknowledgement that the land belongs to another (here S acknowledged O’s right of access) is fatal to a claim of animus possidendi.

Question 12

How is factual possession relevant to a finding of animus possidendi?

Answer 12

o Moran –the assertion of physical possession (fencing land) may itself be STRONG EVIDENCE of the animus possidendi; unequivocal conduct in relation to acts of possession on the land is the best evidence of an intention to possess
o Pye - If factual possession is really clear, there will be a REBUTTABLE PRESUMPTION of a subjective intention to possess, but if factual possession is quite equivocal, the intention requirement becomes all the more essential (Lord Hutton)

Question 13

Powell (animus possidendi)

Answer 13

Erection of “keep out” notices coupled with the actual enforcement of such a notice is unequivocal evidence of animus possidendi

Question 14

What is the difference between dispossession and discontinuance?

Answer 14

Powell – discontinuance is more difficult to prove, for in the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as the person with the prima facie right to possession

Question 15

Pye defining dispossession.

Answer 15

Dispossession does NOT require confrontation; so long as S assumes possession O is dispossessed, for possession is necessarily single and exclusive

Question 16

Roberts

Answer 16

S’ possession must be OPEN in the sense that a reasonable owner of the plot, paying that due regard to his interests which was to be expected of him, would have noticed them and thereby appreciated that S was seeking to dispossess him

Question 17

Powell (factual possession)

Answer 17

“Everything must depend on the particular circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used.”

Question 18

Higgs

Answer 18

If the land is so big it is not feasible to expect anyone to possess the whole of it, part possession may be sufficient

Question 19

Can car-parking constitute adverse possession?

Answer 19

It depends on the nature of the land and the purposes for which it is commonly used - Contrast Williams v Usherwood, where car-parking was sufficient because an owner of the AP land would have used it as a driveway, with Simpson v Fergus, where the land was a private road and putting up signs/allowing guests to park was not enough w/o fencing

Question 20

Carroll; Ellis

Answer 20

Exclusive right to control access is very strong indication of factual possession (acknowledged also in Moran re acts of fencing)

Question 21

Chambers. What is the significance of this?

Answer 21

If the effect of fencing is to wholly exclude the paper owner this will be cogent evidence of AP even if it was erected for other purposes such as keeping livestock, but all turns on the facts.

Significance - reconciles Minchinton and Inglewood; all turns on context

Question 22

Zarb (factual possession)

Answer 22

O may interrupt AP by actually (and not merely attempting to) taking possession of the land to the exclusion of S.

Question 23

Best

Answer 23

As a matter of principle, and by application of Bakewell (which decides that the application of ex turpi causa depends on the context), the potential commission of an offence under S.144(1) LASPOA does not prevent S establishing title by AP

Question 24

S.144(1), LASPOA 2012; Exception?

Answer 24

A criminal offence is committed by squatting in a residential building, where D knows or ought to have known that he is trespassing and intends to live in the building.

Exception - D is holding over after a lease or licence ends

Question 25

What title does AP give the squatter?

Answer 25

AP generates a common law fee simple in possession by virtue of C’s possession (Turner) which is made possible by the principle of relativity of title - C’s right is good against anyone with an inferior right to possession (thus not O).

Question 26

Barrett

Answer 26

Where a tenant adversely possesses his neighbor’s land, the law presumes that he is doing so for the benefit of his landlord.

Question 27

Tickle (rebuttal of presumption in Barrett)

Answer 27

T’s AP of the caravan site was for his own benefit and not that of his landlord because
o T had used his own funds to set up the caravan site.
o Rents were calculated based on the profits from the pub and not the caravan site.
o Business of the caravan site was genuinely independent of that of the pub.

Question 28

What is the limitation period for AP of unregistered land? What is the effect of the period’s expiry?

Answer 28

LA 1980, S.17 – the title of O shall be extinguished after 12 years.
Sunningwell - The approach of English law has not been to positively give title to S, but to treat the lapse of time as barring the remedy of O, which by the doctrine of relativity of title leaves S and his common law fee simple with the best title.

Question 29

O is dispossessed by S1, who holds possession for 4 years. S1 is then dispossessed by S2, who has since been possession for 8 years. Discuss.

Answer 29

Since the expiry of the limitation period for unregistered land does not positively confer title on S, but rather extinguishes O’s title, so long as O has been dispossessed for 12 years his title is extinguished.
Now S1 has the best title, until S2 has adversely possessed for 12 years as against S.1 (Asher v Witlock)

Question 30

Fairweather (criticism?)

Answer 30

T had surrendered the lease to O after AP was completed; held that the surrender was effective so that O has an immediate right to possess against S because S.17 only extinguishes T’s title as between T and S.
Criticism - If T’s title is extinguished (S.17, LA 1980) then how can this happen?

Question 31

Differences between AP of unregistered and registered land?

Answer 31

For AP of registered land,

(i) S.96 disapplies the regime under S.15 and 17 of the LA 1980; replaced with Sch 6 LRA.
(ii) S must have completed the whole AP period himself unless Para 11(2), Sch 6 applies.

Question 32

7 steps for AP of registered land (Para 1-7, Sch 6 LRA)

Answer 32

1. 10 years - application by S to be registered as RP
2. Notice given to RPs
3. Person notified may issue counter-notice
4. No counter notice within 65 days - S registered as RP
5. Counter-notice issued = S’ application rejected unless Para 5(2) to (4) applies
6. After issue of the counter-notice, RP has two years to commence possession before S can make a further application.
7. The second application by S automatically results in S’ registration as new RP.

Question 33

IAM Group

Answer 33

Tust because O challenges S’ adverse possession at some point does not render S’ belief that he is owner unreasonable for purposes of para 5(4)c; reasonableness depends on all the circumstances

Question 34

Baxter

Answer 34

Sch 6 presupposes the existence of a valid claim to AP – where S has successfully acquired title under Sch 6 but in fact has not made out the elements of an AP claim, O may apply for rectification on the grounds of mistake

Question 35

Ofulue

Answer 35

Now that Pye v UK has established the compatibility of the AP limitation period w/ A1P1, the court is not required to apply the test of legitimate aim and proportionality to each different case of AP which arises – Pye applies to all decisions on AP.

Question 36

Malik v Fassenfelt

Answer 36

Where the court is asked to make an order for possession against S, Art.8 is engaged, but the fact that the landowner has a legal right to possession is a very strong factor in support of proportionality – it speaks for itself and needs no justification.