Adverse Possession Flashcards
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]
Pye v Graham [2003] [HL]
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]
Pye v UK [2008] [ECtHR]
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]
Buckinghamshire CC v Moran [1990] [CA]
Requirements for limitation:
- True owner has either been dispossessed or have discontinued his possession
- 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’
Rights may arise via long usage of land, even where that usage is a criminal offence
Bakewell Management v Brandwood [2004] [HL]
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
Best v Chief Land Registrar [2014]
What are the requirements to adversely possess a house?
- Factual and exclusive possession
- Intention to possess and not own
- Adverse possession
Explain factual possession.
• ‘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
To gain title, adverse possession is ‘open, not secret; peaceful, not by force; and adverse, not by consent of the true owner’
Mulcahy v Carramore [1974]
Purposes of shooting considered sufficiently strong use of marsh land because land was good for nothing else
Red House Farms (Thorndon) v Catchpole [1977]
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
Powell v McFarlane (1970)
Explain intention to possess.
• 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]
Explain adverse possession (requirement).
• 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
What is the process for adverse possession for UNREGISTERED LAND?
- 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
Mere issue of writ to recover land without action taken is insufficient for OG owner to take back land
Markfield Investments v Evans [2001]
What is the process for adverse possession for REGISTERED LAND?
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
What are some oppositions to adverse possession?
[Essay]
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’
What were some of the Law Commission’s (2001) views on adverse possession?
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’
Sometimes, fencing off land is not sufficient to show factual possession
Marsden v Miller
Fencing off land is not an essential requirement
Pilford v Greenmanor [2012]
How can OG owners dispossess squatters before expiry of limitation period?
[+ grounds to object to application for AP of land]
- Eviction/Challenging AP claim of 10 years
- Concurrent possession will prevent AP but insufficient to dispossess
• Sava v SS Global Ltd [2008]
• Strachey v Ramage [2008] - Possession order (current proceedings or already issued)
- OG owner subject to a mental disability
What can break the continuity of AP?
Acknowledgement or payment by squatter will break continuity of AP
• Allen v Matthews [2007]
• Limitation Act 1980 s29
Oral demands are insufficient to dispossess squatter
But can move boundary fence
Zarb v Parry [2011]
Written demands are insufficient to dispossess squatter
Mount Carmel Investments v Peter Thurlow [1988]
AP cannot be used for public highways
R (ota Smith) v Land Registry [2010]
AP cannot be used by a trustee in respect of trust property
Statek Corp v Alford [2008]
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
London Borough of Lambeth v Blackburn [2001]
