Adverse Possession Flashcards
What is adverse possession?
A set of rules that offer an opportunity to a mere trespasser acquire a better title to the land than the person who ‘legally’ owns it
What is the civil action available to revoke squatters?
Owner can seek an order for possession from the civil courts
What does the Criminal Law Act 1977 s7 state?
An offence to enter on a property as a trespasser and fail to leave when asked to
What does the Legal Aid, Sentencing and Punishment of Offenders Act 2012 s144 state?
Made it an offence to squat in a residential building need to enter as a trespasser and know they are a trespasser
What does the Criminal Law Act 1977 s6 state?
Offence to use or threaten violence to gain entry of a premises
What does the Criminal Law Act 1977 s10 state?
Offence to obstruct an officer of the court by executing an order for possession granted by the civil courts
How long must a squatter be on land before they can claim adverse possession?
10 years for registered land
12 years for unregistered land
What was established in Best v Chief Land Registrar?
Someone committing a crime by squatting can still acquire the land by adverse possession
What were the facts in Best v Chief Land Registrar?
B heard land was empty and that the land owner had died however she hadn’t. He did up the house and began living there
He entered the land knowing he was a trespasser
What were the facts in J A Pye (Oxford) Ltd v Graham?
Grazing agreement ended and they refused to extend it. They continued to use the land for 15 years. House of Lords claimed they had acquired the land through adverse possession.
What were the facts in Zarb v Parry?
Adverse possession overruled the plans between neighbours
What are the 5 justifications for adverse possession?
- Prevents the pursuit of stale claims
- Squatter may be unaware he does not own the land
- Economic purposes
- Makes good defects in title and conveyancing workable
- Makes minor boundary disputes easier to fix
What are the reasons for preventing a pursuit of stale claims?
The right of the paper owner goes stale if they do not exercise that right within 12 years
What is meant by the economic purposes?
Use of the land is better than it lying idle
What are the requirements for adverse possession?
- Factual possession
2. Intention to possess
What was laid out in Powell v McFarlane?
Requirements were laid out here. The requirements apply to both registered and unregistered land.
What are the 3 things that Powell v McFarlane state are required for factual possession?
Must have:
- Physical control
- Single possession against the paper owner
- Context dependant (depends on type of land)
What was established in Red House Farms v Catchpole as factual possession?
Land used for shooting and this was enough to satisfy factual possession as it was the only ‘profitable use for the land’
What was established in Treloar v Nute as factual possession?
Using the land as though it is your own would satisfy. Suggested an exception in relation to land being held for future development
What was established in Seddon v Smith as factual possession?
Lock on gate being yours is enough to show ownership of the land
Also putting up a fence would establish factual possession
What was established in Buckingham CC v Moran as factual possession?
It was hard to see what more he could have done to acquire complete physical control of the plot. Locking the gate, only access through his land, farming and maintaining the land
What was established in Pye v Graham as factual possession?
Possession does not have to conflict from the paper owners
Factual possession is ordinary possession without the consent of the owner
What were the facts in Powell v McFarlane?
Enclosed field and 14 year old boy used it to graze his cow when the owner was sent away for work.
The grandmother wrote to ask for permission however it was ignored.
LJ Slade stated it was not enough to privately think he had intention to possess
What was said in Pye v Graham regarding intention to possess?
Must be intention to possess and not plainly intention to own the land
You can only intend to possess until you are lawfully removed
What happened in the case of Clowes Development v Walters?
Squatters believed that had a license to be on the land. You cannot have an intention to possess so long as the paper owner permitted them to do so
Who is the onus of proof on to prove intention to possess?
The squatter
What is factual possession?
Possession without the consent of the owner
If there is consent, can there be adverse possession?
No
How must consent be granted?
Can be express or implied
What happened in Ofulue v Bossert?
Paper owner did not think he had a license so no consent so adverse possession was relevant without consent
Can a squatter be passed over?
Yes, you can be a successive squatter.
A squatter can transfer such title as he has acquired to the new squatter
What happened in Zarb v Parry, regarding successive squatters?
Previous owners had been on there before. Added together the two successive squatters had the requisite 10 years adverse possession
What happened in Turner v Chief Land Registrar, regarding successive squatters?
A squatter who has incomplete period of adverse possession is a legal fee simple that can be transferred
What was in the Limitations Act, s15?
Paper owner is presumed to be in possession
Only have 12 years to exercise the right
If paper owner sleeps on that right it will go stale.
What happened in Harrow v Qazi?
Individual needs to rely on the strength of his title rather than the weakness of the squatters
How can the clock be stopped?
- Acknowledgement of title by squatter
2. Successful action for possession
What is stated in s17 Limitations Act?
Paper owners title is extinguished and it cannot be revived once it is distinguished
What does the Land Registration Act 2002 s96(1) state?
Disapplies the Limitation Act 1980 for registered land and creates new registration procedure for squatters
What are the 3 steps to apply for adverse possession for registered land?
- Right to apply for registration
- Registrar gives notification of the application
- Registered owner responds
What is the right to apply for registration?
Sch 6 para 1(1) - right to apply for registration after 10 years adverse possession
What is the registrar giving notification of the application?
Sch 6 para 2 - notice to the registered proprietor
What are the 4 responses a registered owner can use?
- No response
- Consent
- Object
- Counternotice
What happens if the owner does not respond?
Squatter is registered
What happens if the owner gives consent?
Squatter is registered
What happens if the owner objects?
Basis that adverse possession is not satisfied
What happens if the owner issues a counter notice?
Application is rejected unless within an exception under sch 6 para 5
What are the exceptions under sch 6 para 5?
- Estoppel
- Some other ground
- Boundary disputes
What is the two year grace period?
If an application is rejected Sch 6 para 1 registered owner has two years to evict the squatter
What properties are exempt from the Criminal Law Act 1977 s6?
Displaced residential occupiers
Protected intended occupiers
How does the criminal law support the civil law?
s10 Criminal Law Act 1977 supports the order for possession issued by the courts
Under the ECHR what rights does the paper owner have in adverse possession?
Article 1 - entitled to the peaceful enjoyment of his possessions
Under the ECHR what rights does the squatter have in adverse possession?
Article 8 - right to a private and family life
What are the two cases that support the ECHR for the rights of the paper owner in adverse possession?
Beaulane Properties v Palmer
Pye v UK
How does Pye v UK support the ECHR?
Grand Chamber found that the principles of adverse possession in Land Registration Act did not violate the ECHR
How does Beaulane Properties v Palmer support the ECHR?
A system of law that allowed the owner to lose his title without compensation is not justified by public interest so incompatible with the convention
What case supports the ECHR for the rights of the squatter in adverse possession?
Family Housing Association v Donellan
How does the case of Family Housing Association v Donellan support the ECHR?
Human Rights Act and ECHR not relevant in disputes between private citizens