Adverse Possession Flashcards
Limitation Act 1980 s 15, sch 1 para 8
• S 15 Provides a 12-year limitation period for actions to recover land. If the property owner does not take action within that period the his claim is time-barred.
• Sch 1 para 8 –
o Mentions that land/ property is ‘disposed or discontinued’
o The meaning of ‘dispossession’ was considered by the HL in PYE.
JA Pye (Oxford) v Graham [2002] UKHL 30, [2003] 1 AC 419
• Case on adverse possession
• Facts
o Pye allowed his neighbours the Grahams to use 23 hectares of land he owned, valued at 10 million pounds under grazing agreement. The document expressly stated that the agreement would end on the 31st December 1983 and that to continue the arrangement a new contract would need to be entered into.
o Pye did not enter into another agreement because he wanted to develop the land but the Grahams continued to occupy the land.
o After 12 years the Grahams sought to obtain it under the English law of adverse possession.
• Held
o HC –
♣ Neuberger J ruled that under the LRA 1925 the Grahams were the lawful owners of the land as Pye had failed to take possession of this land.
o CA –
♣ Overturned the ruling of the HC and held that the Grahams were only using the land because of the grazing agreement, thus they hadn’t been in possession of it.
o HL –
♣ Rejected the CA and restored Neuberger’s decision.
♣ This was one of the last cases to be decided before the LRA 2002 came into force, which required that any land acquired through adverse possession had to be registered using the Land Registry. As such a registration would result in the original owner being informed this would allow them to object to such possession. The effect is to make it far more difficult to acquire registered land through squatting.
♣ Lord Browne-Wilkinson
• ‘The question is simply whether the defendant squatter has disposed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner…’
♣ Notes:
• In a case of dispossession, the right of action accrues at the date at which the claimant commences possession. Therefore, the answer to the question of whether the Grahams had disposed Pye lay in determining whether the Grahams could establish that they were in possession of the land.
♣ Lord Browne-Wilkinson
• Elements necessary for legal possession:
o 1. A sufficient degree of physical custody and control (factual possession)
o 2. An intention to exercise such custody and control on one’s own behalf and for one’s own benefit (intention to possess)
o ‘What is crucial to understand is that, without the requisite intention, in law there can be no possession…’
♣ HL approved the definition of factual possession given by Slade J in Powell.
o European Court of Human Rights
♣ The ECtHR originally ruled that obtaining property via adverse possession was contrary to Article 1 of protocol 1 of the European Convention on Human Rights (the right to the peaceful enjoyment of one’s possessions).
♣ On appeal, the Grand Chamber subsequently held that although there was an interference with Convention rights, it was a proportionate and thus permissible interference. English law on adverse possession is therefore human-rights compliant.
L Tee [2003] CLJ 36
- The outcome in Pye may seem to have been unfair, but the HL is not repented.
- The LRA 2002 will introduce a new regime. Whether the new regime will sufficiently address the issue of a proprietor’s inadvertence is still to be seen.
- Under the new regime a squatter who has reasonably believed the land to be his may succeed in a claim despite the protests of the registered proprietor.
- The owner of the land, even when registered as proprietor at the Land Registry, has responsibilities towards that land that he ignores at his peril.
Powell v McFarlane (1979) 38 P & CR 45.
• Summary
o A person who enters upon land as a trespasser and later seeks to show that he has dispossessed the owner must produce compelling evidence of the animus possidendi and that he made it clear to the world.
• Facts
o D owned a field which was used as agricultural land by an area of landscape value. Nearby the plaintiff acquired a small farm with which his family has been associated for many years. The field was planted with Christmas trees. D bought a neighbouring plot for a house.
o In 1955, D who was a civil servant was posted overseas where he remained for 11 years. P, who was then 14 used the land to graze his cow, having first written for permission and having received no reply. He cut hay there, to feed the cow and later, made the fence stockproof so that he could leave the cow there. In 1968 the cow died. Between 1956 and 1973 the plaintiff also used the land occasionally for shooting, and for a friend to tether a goat.
o P put up a sign advertising his business, which was visible from the road, D’s wife had visited the field and noticed nothing untoward, but when D visited in 1972, he found that the trees were gone, the fence was in disrepair, the land overgrown.
o D made a second agreement with the second defendant.
o P sought a declaration that he had been in adverse possession for more than 12 years.
• Held
o Application refused.
♣ A person claiming adverse possession must show factual possession which was simple and conclusive and also that he had been dealing with the land in the manner in which the owner might have been to do so;
♣ He must also adduce compelling evidence an animis possidendi which had been made clear to the world. The activities of the plaintiff when a 14-year-old boy owned no land in the neighbourhood was not necessarily referable to an intention on his part to dispossess D.
o Concepts of possession under English law
♣ A. in the absence of evidence to the contrary, the owner of land with paper title, was deemed to be in possession.
♣ B. The claimant to possession with no paper title, must show factual possession and the requisite intention to possess;
♣ C. Factual possession signified an appropriate degree of physical control and it must be a single and conclusive possession.
♣ D. The ‘animus possidendi’** was also necessary to constitute possession and involved the intention, to exclude the world including the owner with the paper title.
♣ **This is an intention to possess something for the time being.
o It was established that a person who originally entered as a trespasser and later showed that he had dispossessed the owner must show the requisite ‘animus possidendi’. Following the activities since 14 years old at the time owning no land did not amount to an intention to dispossess D and to occupy the land wholly as his own property.
♣ The intruder was not treated as having dispossessed the owner because it will treat him as having been there under some implied or hypothetical licence.
o Slade J
♣ ‘Factual possession signifies an appropriate degree of physical control. It must be a single and exclusive possession, though’ one or persons can jointly hold exclusive possession.
Purbrick v Hackney LBC [2003] EWHC 1871, [2004] 1 P & CR 34, Neuberger J
• Facts
o The plaintiff appealed against a decision refusing him title, by adverse possession, to a building of which the local authority was the registered proprietor.
o The building had no door or roof when the plaintiff cleared it and began to store equipment inside it.
o P put corrugated iron across the doorway and chained it in place using two padlocks. This remained there for four years.
o P then installed a property door and roof and reinstated the first floor.
o P argued that he had been in possession of the building for the four-year period. P also submitted that his expectation of being evicted at any time did not prevent him from being in possession.
• Held
o Appeal allowed.
o P had been in possession of the building for the four-year period.
o Whilst P could have done more to improve the property, the question was what he actually did and whether that was enough to constitute physical possession.
o P had done enough to maintain possession by being exclusive in occupation and changing the locks, thus restricting entrance to the world.
o Further, most squatters knew that their possession might be temporary and that for 12 years they were liable to be dispossessed as of right. The fact that P was aware of that did not prevent him from being in possession; otherwise, almost all adverse possession claims would fail for lack of requisite intention to possess.
• Neuberger J
o ‘…the question is not what the squatter could have done, but what he did, and whether what he did is sufficient to amount to physical possession.’
Roberts v Crown Estate Commissioners [2008] EWHC 1302, [2008] 2 P & CR 15
• Facts
o The claimant Robert claimed to be entitled of the Manor of the City and other property to be entitled to exercise ancient royal prerogative rights over parts of the Pembrokeshire foreshore and the narrow sea.
o And by grants and ancient use reputation, the Lordship included a freehold estate in the relevant land.
o Robert accepted the decision of the CA in Roberts v Swangrove Estates Ltd, that the Crown had if it did not already have title to the foreshore and seabed, acquired title to it by adverse possession.
o The Crown claimed that it was entitled to be registered as the proprietor of that land free of any of the rights Robert claimed to have over the foreshore and seabed.
• Held
o 1. Any proprietary rights that had vested in the title Lords Marcher had been erased by the Union Act 1535. And Robert failed to show that the prior rights of a Lord Marcher subsisted the 1535 Act and subsequent legislation;
o 2. The right of wreck and the exclusive right of fishing were franchises that derived from a Crown grant.
o 3. Whether Robert could exercise any rights over the foreshore depended on whether he could rebut the presumption that the foreshore vested in the Crown. The evidence showed that the foreshore had never been part of any manor of which the bishops had been Lords. Accordingly, Robert had no rights over the foreshore in dispute, save in relation to a shared right of wreck with the Crown.
Roberts v Swangrove Estates [2008] EWCA Civ 98, [2008] Ch 439
• Summary
o There was no constitutional principle or rule of law that the Crown could not plead adverse possession where its original entry on to the land was unlawful.
• Facts
o The claimant who had acquired paper title to land bordering the estuary of the River Severn, claimed entitlement to possess parts of the adjoining foreshore and bed of the estuary.
o Following the claimant’s proposal to register a caution to protect his claim, the Crown Estate Commissioners contended that they owned the foreshore and river bed by ancient prerogative right, alternatively by adverse possession.
o The Commissioners claimed adverse possession on the assumption the claimant and his predecessors were entitled to ownership of the estates on the general principle that the Crown could not commit a wrong against one of its subjects.
o The judge found that under the Limitation Act, the Crown enjoyed the same rights as its subjects and that it had been in possession of the disputed land for more than 12 years.
• Held
o Appeal by the claimant Roberts dismissed
o Since the Commissioners had at all times believed that the disputed land was foreshore and thus lawfully part of the Crown Estate, that they had treated and managed it according to their statutory duties and powers and that their policy was consistent with an intention to occupy it exclusively, they had the requisite intention to possess it; accordingly, the judge had correctly decided that the Commissioners were entitled to rely on their adverse possession of the land.
Zarb v Parry [2011] EWCA 1306
• Summary
o In order to interrupt adverse possession, the paper title owners had to bring the adverse possessor’s exclusive possession to an end.
• Facts
o The claimants and defendants owned adjoining land.
o The Southern boundary between the two properties had been subject of an unresolved dispute between the claimants and the defendants’ predecessors in title.
o In 2007 Cs went on to the strip of land that lay between the hedge and where they claimed the boundary to lied, and sought to take the strip by force by uprooting the existing fence, putting fence posts along the boundary they contended for, cutting down a tree and making out that boundary with a surveyor’s tape.
o They were discovered by the Ds.
o Cs claimed the boundaries were as they contended and in their defence they relied on adverse possession.
♣ The judge held that although the boundary was as Cs had contended, Ds and before them, their predecessors in title had been in adverse possession of the strip for over ten years.
♣ Moreover, Ds adverse possession of the strip had not been interrupted by Cs attempt to fence off the strip in 2007.
o CA
♣ Appeal dismissed.
♣ For adverse possession to be established, exclusive possession in the sense of exclusive physical control was required. Thus, if exclusive physical control of the land were lost, adverse possession would come to an end.
♣ Entering on the disputed land and seeking to take it by force in 2007 the claimants had not managed to retake exclusive physical control of the strip and therefore had not interrupted the defendant’s adverse possession of it. Accordingly, the judge had been right to find that although the claimants owned the paper title to the strip of land, it had been acquired by the defendants by adverse possession LRA 2002.
BP v Buckler (1988) 55 P & CR 337 CA
• A claimant’s possession is not adverse if he or she is present with the licence of the paper owner. Hence, in this case adverse possession claim failed because the paper owner had unilaterally granted a licence.
• Facts
o The appellant’s parents had been in adverse possession of their home by remaining in occupation at the end of their lease. An order of possession was obtained within the limitation period, but was not enforced. BP properties then purchased the freehold and wrote and wrote to Mrs Buckler, informing her that she could remain in the property rent-free for her life.
o Mrs Buckler neither accepted nor rejected the terms of the letter.
o Following her death, the appellant sought to establish that his parents had obtained title by adverse possession.
• Held
o Claim failed
o The paper owner in this case therefore expressly granted the licence.
Colin Dawson Windows v Howard [2005] EWCA Civ 9, [2005] 2 P & CR19.
• Summary
o In this case there was an implied licence that the respondent company was being permitted to remain on the land in question pending completion of negotiations for its purchase and accordingly it could not establish a full 12 years’ adverse possession.
• Facts
o The appellant Howard appealed against a decision allowing a claim made by the respondent Dawson for adverse possession of land.
o The land was part of a site used by D as a car park. H alledged that she lived with her husband in one of the terrace houses that stood on the site until the demolition in 1958.
Ofulue v Bossert [2009] UKHL 16, [2009] 1 AC 990
• Facts
o Mr and Mrs Ofule were registered proprietors of a property which they had let to tenants when they went to live abroad
o Since 1981-82 the property had been occupied by Ms Bossert who had been given possession, together with her father by the previous tenant.
o Possession proceedings were raised against her again in 2003 and well within the limitation period so adverse possession had not been raised.
o When Ms Bossert claimed adverse possession, the Ofulues argued that the two events to the initial proceedings constituted an acknowledgment of title under s29 Limitation Act 1980.
o One event was an offer to buy the property which the Bosserts had made in correspondence with the Ofulues in 1992.
o The HL agreed with the CA that an offer to buy constituted an acknowledgment of title,
Limitation Act 1980 s 15, sch 1
• (1) ‘No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.’
Asher v Whitlock (1865) LR 1 QB 1 Exch Ch
• Leading case on title to recover land.
• Ejectment – title by mere possession – devisable Interest in land.
• Summary
o A person in possession of land without other title has a **devisable (capable of being transferred by will) interest; and the heir of his devisee can maintain ejectment against a person who has entered upon the land, and cannot show title or possession in any one prior to the testator.
• Facts
o Husband devised land to his wife so long as she remained unmarried, with remainder to his daughter in fee.
o On his death the widow, and daughter continued to reside on the property.
o The defendant later on married the widow and came to reside with them.
o The daughter died very young, soon after the mother.
o D continued to occupy the property and the daughter’s heir at law brought ejectment against him.
• Held
o The plaintiff was entitled to recover the whole property.
LRA 1925 ss 70(1)(f), 75
• S 70(1)(f) – Liability of registered land to overriding interests
o Says that all registered land shall, unless contrary is expressed on the register be subject to the overriding interests in the Act, F is one.
♣ ‘rights acquired or in course of being acquired under the Limitation Acts’
• S 75 – Acquisition of title by possession
o 1) The Limitation Acts shall apply to registered land in the same manner and to the same extent as those Acts apply to land not registered.
o 2) Anyone claiming to have acquired title under the Limitation Act to a registered estate in the land may apply to be registered as proprietor.
o 3) ‘The register shall, on being satisfied as to the applicant’s title, enter the applicant proprietor.
HRA 1998 Schedule I Part II (Protocol 1 art 1)
• The First Protocol has three Articles. The first Article is a protection to property:
o Article 1 – protection to property.
♣ ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest…’
