Adverse Possession

Question 1

First principles

Answer 1

• Based on relativity of title to a freehold or leasehold estate: only as good as the absence of a person with a better title
• Originally occurred through limitation of action: Limitation Act 1980 (still used for adverse possession in unregistered land)
  
  • Operates negatively – does not “grant” possessor a right; rather, it prevents earlier possessor from enforcing her right
  • Prevents stale claims
    
    • Prevents the paper owner from enforcing the right. Under the old law, the paper owner could not interfere after 12 years
  • Encourages productive use
    
    • The law does not like people to sleep on their rights
  • “Quiets” title by determining who owns disputed land in boundary disputes
    
    • By the recognition that the person in physical possession has the best title
  • The Limitation Act is no longer used for adverse possession

Question 2

What does adverse possession give rise to?

Answer 2

• Adverse possession gives rise to an original title: there is no transfer of title from the previous owner
  
  • It is not a grant, which is why it does not require a deed
  • Therefore, because there is no requirement of formalities, the title is always legal (as against the previous owner, but see registration requirements regarding future third parties):
    
    • It is a form of “parliamentary conveyance [Tichborne v Weir].” It involves a transfer in reality

Question 3

Consequences of no transfer and no consideration

Answer 3

• It is not a transfer and there is no consideration paid. The possessor is not a purchaser for value
  
  • If you acquire land by adverse possession and there are other existing encumbrances on the land, you take subject to those. To take free of them you must be a purchaser of value (and the squatter does not)
  • Purchaser is not necessarily somebody who gives value. It is simply somebody who acquires property through a transaction with somebody else
  • You cannot adversely possess land and free it from encumbrances

Question 4

When can the possession of a trespasser trigger a claim to title?

Answer 4

• Requires exclusive physical possession
  
  • Coupled with an intention to possession
• You must demonstrate the required degree of exclusive physical possession coupled with intention to possess (animus possidendi)

Question 5

Need to possession to be adverse

Answer 5

• Possession must be adverse to the interests of the paper owner
  
  • Must be without any right or permission of the paper owner
  • Permission (licence) is never implied
    
    • Bucks CC v Moran: claimant gardened unused council land. The permission must be express / manifest in order to create a claim for AP. It does not matter if. He did not need the land now, so that the possession for the time being was not inconsistent with the paper owner’s future use

Question 6

Relevance of the intention of the owner

Answer 6

• The intention of the owner is never relevant
• Pye v Graham: P owned land, G had an expired lease on the land and continued to farm the land. G tried to renew the lease and P never renewed the lease. After 12 years, G got AP
  
  • The court will be slow to implicate a situation in which an “inference could be drawn in cases where the true owner has been physically excluded from the land”

Question 7

Powell v McFarlane

FACTS

Answer 7

• Defendant M bought land on which he hoped to farm Christmas trees. Went abroad for 11 years. Neighbour P grazed a cow on the land and over the years used it for shooting parties, and put up a sign on the fence advertising his tree-felling business. When M’s wife visited the land; she found nothing amiss. P then sought declaration that he had title by AP

Question 8

Powell v McFarlane

HELD

Answer 8

• Possession not established
  
  • “Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession”
• It depends on the particular circumstances. You must show “factual possession [in that] the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so”
• The squatter must be dealing with the land as if they were the owner

Question 9

Greenmanor v Pilford

FACTS

Answer 9

P fenced in parts of G’s land, but left it unlocked

Question 10

Greenmanor v Pilford

HELD

Answer 10

• Only a sufficient degree of control is needed
  
  • the construction of the wall and the gate were sufficient
• The act only needs to be “open and manifest”
  
  • Not a requirement that you make it impossible that the paper owner to gain access.
  • The possession is signalling to the rest of the world that somebody is occupying the property

Question 11

Pubrick v London Borough of Hackney

FACTS

Answer 11

A squatter occupied a burnt-out shell of a council house and kept a low profile so nobody knew he lived there

Question 12

Pubrick v London Borough of Hackney

Answer 12

• The possession must be open and not secretive
• If you do not at least look after your property, after a long period you are not entitled to the property
• Unless there is no fraud and deliberate concealment, adverse possession will be established

Question 13

Intention to possess

Answer 13

• The intention is not to own the land but to put it to your own use
  
  • Pye v Graham: not an intention to own, just an intention for the time being to put it to your own exclusive use
    
    • If you do this for 12 years before the 2002 Act, your intention is sufficient
• Intention to possess for the time being
  
  • Lambeth LBC v Blackburn: squatter gained entry by breaking lock and installing his own. Expected Council to evict him at any time, and had agreed to pay rent if Council would let him stay. This did not negate the intention to possess at the relevant time
    
    • It must be an intention to possess for the time being
• The willingness to pay rent does not negate an intention to possess - Pye

Question 14

Acquisition of title by criminal activity

Answer 14

• A squatter, by permission, is trespassing (a civil tort)
• AP of residential property is now a criminal offence
  
  • S7 Criminal Law Act: if someone persists occupation after being required to quit by the owner, they commit a criminal offence. The owner is entitled to use reasonable force
  • S144(1) Legal Aid, Sentencing and Punishment of Offenders Act 2012: if the person is in a residential building as a trespasser (and knows that they are such) and keeps everybody out, they are committing an offence
• However, this does not stop you acquiring title of the land
• Best v Chief Land Registrar: B restored vacant derelict property. Owner had died and her son, the owner under her will, ignored the property. B made application under Sch 6 LRA 2002 to be registered. Could one profit from his own wrong?
  
  • The law was introduced as a deterrent and to facilitate the removal of trespassers. But since it is always open to the paper owner to prevent the trespass by merely granting permission, then the offence cannot be a bar to acquiring title by adverse possession.

Question 15

Unregistered land

Answer 15

• Limitation Act s15 bars any action of AP after 12 years
  
  • After this time, the paper owner’s rights are unenforceable and thus extinguished, the squatter has the best title
• Perry v Clissold: “if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title”

Question 16

Successive periods + unregistered land

Answer 16

• Adverse possessors can add prior adverse possession by others to their time

Question 17

Registered land where adverse possessor has completed 12 years’ possession before 10/03

Answer 17

• Limitation Act 1980
• The squatter has possessed the land for 12 years, and thus the legal owner cannot gain possession of the land because they have lost their right
• S75 LRA 1925: the registered title is held in bare trust for the possessor until the squatter is registered as a proprietor
  
  • NB: registered owner is a bare trustee and cannot stop adverse possessor from registering
• The squatter’s legal title is a trust of the registered title only having effect in equity against future third parties, but as against the paper owner it is a full legal absolute title

Question 18

Registered land where adverse possessor has completed 10 years’ possession after 10/03

Answer 18

• The presumption falls in favour of the registered owner, which is why it is more difficult to acquire land by AP
• The LA does not apply, it is excluded by s96 LRA 2002
  
  • There is no automatic possessory title after so many years of AP, and therefore no trust arises
• This is not an abolition of AP
  
  • Sched 6 p1(1): a person may apply to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for a period of 10 years ending on the date of the application
    
    • The AP merely has the right to apply for registration after 10 years of AP
  • Sched 6 p11(2): the registrar must give notice of the application to the proprietor of the estate
• You can still add successive periods. The AP must be
  
  • The successor in title to the previous adverse possessor
  • Able to include periods of adverse possession which come in between, and is continuous with, his own

Question 19

Application in registered land

New regime under sch6 LRA 2002

Answer 19

• A person may apply to be registered as proprietor after a period of 10 years ending on the date of application [para 1(1)]
• The registrar must notify the registered proprietor amongst others [para2]
• The registered proprietor may object, but if the adverse possessor remains in possession for a further two years, they can reapply and will be registered [para6]

Question 20

Application in registered land

Objecting

Answer 20

• Registered owners and chargees have 65 days in which to lodge an objection [Land Registration Rules 2003, r189]
• If there is no objection, then the applicant will be registered [LRA 2002 sch6 para4]
• Even after registration, former proprietor can still challenge
  
  • Baxter v Mannion: registration constituted a mistake because the applicant had not been in adverse possession for 10 years
• If an objection is lodged, the applicant may still be registered only if the claim falls under exceptions at sch6 para5
  
  • Estoppel [para5(2a)]
  • Other reasons (such as interest under bare trust) [para5(3)]
  • No exact boundary [para 5(4)]
    
    • The person in physical possession is always favoured