Adverse Possession

Question 1

D had right to the land under LRA 1925 as C had failed to take possession of the land after 12 years

[Last case before LRA 2002]

Answer 1

Pye v Graham [2003] [HL]

Question 2

Adverse possession, though ruled to be contrary to Art 1 Protocol 1 of ECHR at first, now found to be proportionate and permissible interference

[Right to peaceful enjoyment of one’s possessions]
[Appeal before ECtHR]

Answer 2

Pye v UK [2008] [ECtHR]

Question 3

D established title by adverse possession; fencing can suffice as blocking off the world

Nourse LJ:
• Prescription: Title acquired only by possession as of right
•Limitation: Title acquired as of ‘wrong’; intention of squatter is decisive

[pre-LRA 2002]

Answer 3

Buckinghamshire CC v Moran [1990] [CA]

Requirements for limitation:

1. True owner has either been dispossessed or have discontinued his possession
2. Squatter must have been in adverse possession of it for the statutory period before action was brought

Nourse LJ: Squatter ‘must intend to possess the land to the exclusion of all the world, including the true owner’

Question 4

Rights may arise via long usage of land, even where that usage is a criminal offence

Answer 4

Bakewell Management v Brandwood [2004] [HL]

Question 5

C believed house to be abandoned in late 1990s, made improvements to it before moving in in early 2012; applied to register property in Nov under Sch 6 LRA 2002

Answer 5

Best v Chief Land Registrar [2014]

Question 6

What are the requirements to adversely possess a house?

Answer 6

1. Factual and exclusive possession
2. Intention to possess and not own
3. Adverse possession

Question 7

Explain factual possession.

Answer 7

• ‘complete and exclusive physical control’
— Slade LJ, Buckinghamshire CC v Moran

• Includes actual physical possession of sufficiently strong use
— Can depend on nature of land: Red House Farms (Thorndon) v Catchpole

Question 8

To gain title, adverse possession is ‘open, not secret; peaceful, not by force; and adverse, not by consent of the true owner’

Answer 8

Mulcahy v Carramore [1974]

Question 9

Purposes of shooting considered sufficiently strong use of marsh land because land was good for nothing else

Answer 9

Red House Farms (Thorndon) v Catchpole [1977]

Question 10

Exclusive possession: Requires sufficient degree of physical control (as an owner would)

• Acts that counted: Shooting; Storing wood; Tethering a goat for a friend; Putting up a sign advertising his biz
• Age of 14 made intention to possess land hard to prove

Answer 10

Powell v McFarlane (1970)

Question 11

Explain intention to possess.

Answer 11

• Must amount to intention to exclude paper owner
— Physical possession can be evidence

• Knowledge of OG owner’s future plans for land does not negate intention
— Pye v Graham

• Willingness to pay for the use of the land does not negate intention
— Pye v Graham

• Mistaken belief in permission can have necessary intent to possess
— Wretham v Ross [2005]

Question 12

Explain adverse possession (requirement).

Answer 12

• Adverse possession for registered land under Limitation Act accepted as Convention-compliant

• – Pye v UK
• – Ofulue v Bossert

• If use of land exceeds permission granted, possession may be adverse
— Allen v Matthews

Question 13

What is the process for adverse possession for UNREGISTERED LAND?

Answer 13

• Adverse possessor need not be same person
• Occupation proven by statutory declaration

Limitation Act 1980 s15(1)
•Prevents OG owner from bringing claim against adverse possessor after 12 years

Limitation Act 1980 s17
• Title of OG owner shall be extinguished

Question 14

Mere issue of writ to recover land without action taken is insufficient for OG owner to take back land

Answer 14

Markfield Investments v Evans [2001]

Question 15

What is the process for adverse possession for REGISTERED LAND?

Answer 15

LRA 2002 Sch 6 para 1(1)
• Need period of 10 years of adverse possession to apply for title

LRA 2002 Sch 6 para 2(1)
• Registrar must give notice of application to OG owner
•Object allowed within 65 days: Land Registration Rules 2003 r 189

LRA 2002 Sch 6 para 5
• If OG owner opposes, application will succeed only if the following are proven:
--- Estoppel
--- Other right to the land
--- Reasonable mistake as to boundary

LRA 2002 Sch 6 para 6
• If para 5 unsatisfied, squatter can make further application if in adverse possession or another 2 years
• OG owner won’t be notified, cannot object

Question 16

What are some oppositions to adverse possession?

[Essay]

Answer 16

McPhail (1973)
• Lord Denning: Squatter’s plea that he was ‘homeless and that this house or land was standing empty’ ‘is of no avail in law’

Southwark London Borough Council v Williams [1971]
• ‘If homelessness were once admitted as a defence to trespass, no one’s house could be safe’

Question 17

What were some of the Law Commission’s (2001) views on adverse possession?

Answer 17

Para 2.1:
• Recognised registration as the basis of title to registered land, not possession

Law Com 271:
• Registration to answer adverse possession’s conflict with ‘the fundamental concept of indefeasibility of title that is a feature of registered title’

Question 18

Sometimes, fencing off land is not sufficient to show factual possession

Answer 18

Marsden v Miller

Question 19

Fencing off land is not an essential requirement

Answer 19

Pilford v Greenmanor [2012]

Question 20

How can OG owners dispossess squatters before expiry of limitation period?

[+ grounds to object to application for AP of land]

Answer 20

1. Eviction/Challenging AP claim of 10 years
2. Concurrent possession will prevent AP but insufficient to dispossess
   • Sava v SS Global Ltd [2008]
   • Strachey v Ramage [2008]
3. Possession order (current proceedings or already issued)
4. OG owner subject to a mental disability

Question 21

What can break the continuity of AP?

Answer 21

Acknowledgement or payment by squatter will break continuity of AP
• Allen v Matthews [2007]
• Limitation Act 1980 s29

Question 22

Oral demands are insufficient to dispossess squatter

But can move boundary fence

Answer 22

Zarb v Parry [2011]

Question 23

Written demands are insufficient to dispossess squatter

Answer 23

Mount Carmel Investments v Peter Thurlow [1988]

Question 24

AP cannot be used for public highways

Answer 24

R (ota Smith) v Land Registry [2010]

Question 25

AP cannot be used by a trustee in respect of trust property

Answer 25

Statek Corp v Alford [2008]

Question 26

Needs to be clear in the act whether one intended to possess the premises to the exclusion of the whole world

No need to intend to exclude from the start, just that one did exclude

Answer 26

London Borough of Lambeth v Blackburn [2001]