Adverse Possession

Question 1

Martin Dixon definition of adverse possession?

Answer 1

“The conjunction of acts of possession with an animus possidendi that establishes adverse possession”

Question 2

Lord Browne-Wilkinson Pye v Graham on the extent to which intent is necessary in adverse possession?

Answer 2

‘Necessary intent is an intent to possess not to own and an intention to exclude the paper owner only so far as is reasonably possible’

Question 3

What is the implied licence theory?

Answer 3

Suggests that the claimant is automatically deemed to have been given a licence to use the land simply because his actions were not contrary to an intended use by the land owner.

Question 4

In what exceptional circumstance will the ‘implied licence theory’ hold according to Lord Browne-Wilkinson?

Answer 4

If the claimant ‘is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the adverse possess does not conflict with that use,’

Question 5

What belief in the case of Clowes Developments v Walters invalidated a claim of adverse possession?

Answer 5

belief that the land was held under licence (although mistaken) meant that the intention to possess is diminished and adverse possession cannot be claimed.

Question 6

According to Martin Dixon, why does the belief that the paper owner had given permission to be on their land invalidate an adverse possession claim?

Answer 6

Because ‘you cannot intend to treat the land as within your ultimate control if you believe that you are permitted to be there by the owner’.

Question 7

How does unilateral permission to be on the land given by the paper owner affect adverse possession? What case is relevant?

Answer 7

if unilateral permission is given by the paper owner to the adverse possessor, it can be fatal for the adverse possessor even if they do not acknowledge this permission.
This was the case in BP Properties Ltd v Buckler (1987) paper owner unilaterally gave permission to a possessor just before the expiry of the limitation period.
This acted as evidence that the possessor no longer had an intention to possess.

Question 8

In the case of Powell, what did Slade J refer to as being the ultimate touchstone for establishing physical possession of the land?

Answer 8

Whether ‘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’.

Question 9

In Dyer v Terry, what action amounted as enough to be physical possession of the land?

Answer 9

Basic cultivation was enough in respect of land unusable by anyone else, but mowing the grass and picking up litter in another large area was not.

Question 10

Legal Aid, Sentencing and Punishment of Offenders Act: Section 144.

Answer 10

Squatting in a residential building is a criminal offence.

Question 11

Criminal Law Act 1977: Section 7

Answer 11

A trespasser commits an offence if they fail to leave residential property when asked to do so by a ‘displaced residential occupier’ or ‘an individual who is a protected intending occupier’.

Question 12

In what circumstances would the land registry reject an adverse possession application?

Answer 12

If the applicant had based his claim for adverse possession of acts amounting to criminal offence then the application for title would be rejected outright.

Question 13

What was decided in the case of Bakewell Management Ltd v Brandwood concerning adverse possession via criminal means?

Answer 13

Made the distinction between acts that were always unlawful (hence they could not be the base for AP applications ever) and acts that were only unlawful because the claimant did not have property rights.
The Lords decided that if the offence only arose because the claimant did not have a title in the land the possibility of acquiring that land through AP remained.

Question 14

What is a limitation of actions?

Answer 14

the paper owner must sue for an alleged wrong within a specific period of time from the moment the alleged wrong took place.

Question 15

What is the limitation period for adverse possession of unregistered land? Limitation Act 1980: Section 15

Answer 15

12 years

Question 16

According to Schedule 1 Paragraph 1 of the limitation act, if the paper owner is a ‘sole’ charitable corporation (i.e. a bishop) or the property is owned by the crown, what is the limitation period?

Answer 16

30 years

Question 17

If the land is owned by someone for life, with remainder in fee simple to another person, how long is the limitation period?

Answer 17

12 years + 6 years from the date of the life tenants death.

Question 18

If the paper owner is currently a tenant of the land under a lease how long is the limitation period?

Answer 18

12 years against the tenant, but after the lease expires there must be another 12 years of adverse possession.

Question 19

What action by the paper owner can stop the clock on the limitation period?

Answer 19

A successful action for possession or seeking a declaration of title by the paper owner before expiry of the limitation period will stop the clock. However, sending a letter claiming to have title/issuing a claim for possession will NOT.

Question 20

According to Limitation Act 1980: S29/30 what will stop the clock?

Answer 20

the clock will be stopped if the adverse possessor has previously acknowledged the paper owners title before the expiry of the limitation period. This could be via a payment of rent or a written acknowledgement of title.

Question 21

What exception is made to the acknowledgement of title rule that will NOT stop the clock?

Answer 21

If the acknowledgement of title is written ‘without prejudice’.

Question 22

What action did Smith v Waterman acknowledge could constitute to stopping the clock?

Answer 22

Sometimes the paper owner taking back physical control of the property may be enough to stop the limitation period clock.
BUT it was determined that the claimants adverse possession cannot simply be interrupted by the paper owner going onto the land with some symbolic act, otherwise mere entry onto the land by the owner would stop the clock. They must demonstrate a retaking of control over the land.

Question 23

On an unregistered freehold estate what does successful adverse possession mean for the transfer of title?

Answer 23

Successful adverse possession does not transfer the paper owner’s title to the adverse possessor.
Rather the adverse possessor takes the land subject to all pre-existing proprietary obligations, whether these are registered land charges (i.e. mortgages).

Question 24

In an unregistered leasehold estate, how can the landlord recover their land?

Answer 24

During the currency of a lease landlord can bring forfeiture proceedings against the original tenant, regardless of whether the adverse possessor has successfully come into possession of the land.
The effect of this would be to terminate the lease and bring forward the landlord’s right to eject the adverse possessor.
Hence, the adverse possessor has extinguished the tenants title, and therefore the tenant cannot evict the adverse possessor HOWEVER they are still the landlord’s tenant and therefore the landlord does not have to wait until the lease term has expired to bring an action against the adverse possessor because he has terminated the lease in accordance with his rights as a landlord.

Question 25

What is the limitation period for registered land under the LRA 1925?

Answer 25

12 years (the same exceptions as in unregistered land apply).

Question 26

What is the effect if the adverse possessor has not completed the limitation period by the 13th October 2003?

Answer 26

Then their adverse possession will be considered under LRA 2002 not 1925.

Question 27

LRA 2002 S.96?

Answer 27

No period of limitation against a registered title - no sense in which a registered proprietor can lose their title merely because an adverse possessor has been on their land for a certain period of time.

Question 28

Under LRA 2002 how is it possible for someone to acquire property through adverse possession?

Answer 28

AP must first have been in adverse possession of the land for at least 10 years at which point they can make an application to become the registered proprietor.

Question 29

How does the serving of a counter-notice by the paper owner affect an adverse possession application?

Answer 29

regardless of any factual basis for adverse possession, the AP cannot be registered as the proprietor, unless one of the 3 exceptions are met. In this case the registered land-owner will have two years to take back factual possession of the land. If the land owner does not take back control within the time it is possible (but not likely) that the AP can reapply for the title.

Question 30

What is the Estoppel exception to the serving of a counter notice?

Answer 30

The HM Registry gave the example of where a squatter had built on the registered proprietor’s land in the mistaken belief that he was the owner and the proprietor has knowingly accepted such a mistake.
The applicant must also show that they have detrimentally relied on some assurance by the registered proprietor, in circumstances in which it would be unconscionable for this assurance to be withdrawn.

Question 31

What is the exception of the squatter being entitled to the property where a counter notice is served?

Answer 31

Where the squatter is entitled to the land under the will or intestacy of the deceased proprietor, or where the squatter contracted to buy the land and paid the purchase price BUT the legal estate was never transferred to them.
In the case of Crosdil v Hodder (2011) Judge McAllister noted that due to the fact that in both such examples the applicant need not acquire the land by adverse possession they were ‘instances where the claimant can obtain a remedy without having to rely on adverse possession’. Hence she concluded that this exception should be interpreted narrowly.

Question 32

What is the boundary exception to the serving of a counter notice?

Answer 32

Probably the most commonly used exception as it concerns cases in which the exact boundary line between adjoining land may be uncertain or have been altered over time without any formal transfer of land between neighbours.
Further the boundary exception can apply to those who ‘for at least 10 years of the period of the adverse possession reasonably believed that the land to which the application relates belonged to them’.
This is meant to ensure that the land was acquired honestly rather than through deliberate theft. See Zarb v Parry (2011)

Question 33

In which case was it concluded that factual possession had to be actual possession, not symbolic?

Answer 33

Zarb v Parry (2011)

Question 34

In which case did a letter to the council asking for a licence mean that acknowledgement of title had been given by the adverse possessor?

Answer 34

Lambeth LBC v Bigden (2001)

Question 35

Powell v McFarlane on factual possession?

Answer 35

“to exclude the world at large, including the owner…made clear to the world”