Adverse possession Flashcards
What is adverse possession
When someone enters into possession of land without paper ownership and who wishes to acquire the land
Degree depends on nature and quality of land
Squatters rights
Name a leading case in adverse possession
Powell v Macfarlane [1979]
Claimant must intend to exclude all others from the land including the owner
Use land as occupying owner would and show degree of physical control
Proof of an intention to possess
Requirements of adverse possession
Fact of possession - exclude all others and exercised openly i.e. fence
Intention to possess - treat as own i.e key/padlock
Possession is adverse - inconsistent with paper title and permission not given
Name a case when proving fact of possession
Zarb v Parry [2011]
In order to interrupt adverse possession the paper title owner must bring the adverse possessor’s exclusive possession to an end
Clock stop running
Name a case when proving intention to possess
JA Pye (Oxford) Ltd v Graham [2002]
Evidence from squatter that he would have accepted a lease or license is not fatal to a claim if no lawful right granted
Appealed - human rights breached
Requirements of adverse possession prior to LRA 2002
Governed by Limitation Act 1980
s15 Limitation Act 1980 - no action to recover land can be brought after the expiry of 12 years. If can prove 12 years the squatter is entitled to adversely occupy land
12 years both registered and unregistered land
In unregistered land what happens after squatter has possessed land for the required 12 year period
If claim succeeds the title is extinguished and squatter holds his own fee simple in land
Heaney v Kirkby [2015]
s17 LA 1980
In registered land what happens after squatter has possessed land for the required 10 years
Registered proprietor holds land on trust for the squatter under s75 LRA 1925 until title transferred to them.
Protected as an overriding interest s70 LRA 1925
What was the effect of s96 LRA 2002 on registered land which has been adversely possessed
s96 LRA 2002 provides that s15 LA 1980 is no longer applicable but the principles as to what amounts to adverse possession still apply
Fairer system to paper title owner
Effect of Sch 6 LRA 2002 on registered land which has been adversely possessed
Disapplies the Limitation Act 1980
Sch 6 LRA 2002 provides that an application for registration can be made after 10 years.
Subjective
Process of application
On receipt Registrar will notify proprietor and any other interested parties
Right to serve counter-notice within 65 days
If no counter-notice served squatter will become new registered owner
If counter-notice served application will be rejected unless squatter can satisfy one of three conditions under para 5 sch 6
What are the three conditions under para 5 sch 6
Some form of estoppel of unconscionability
Some other reason i.e paid for land but legal estate not transferred
Boundary dispute - squatter reasonably believed land was his
Is a claim of adverse possession more likely to be successful in registered or unregistered land
Unregistered
Under LRA 2002 opportunities for claimant to be registered as proprietor on the basis of adverse possession successful are limited
No limitation period
Para 5 provides those with an interest to take action
What happens if claim for adverse possession is unsuccessful
The registered proprietor has 2 years to dispossess the squatter otherwise the squatter will become the registered proprietor after 2 years
s144 LASPOA 2012 - squatting criminal offence
Easier to evict squatter
What is the strongest evidence of factual possession
Fence - Seddon v Smith [1987]
