Adverse Possession Flashcards
Martin Dixon definition of adverse possession?
“The conjunction of acts of possession with an animus possidendi that establishes adverse possession”
Lord Browne-Wilkinson Pye v Graham on the extent to which intent is necessary in adverse possession?
‘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’
What is the implied licence theory?
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.
In what exceptional circumstance will the ‘implied licence theory’ hold according to Lord Browne-Wilkinson?
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,’
What belief in the case of Clowes Developments v Walters invalidated a claim of adverse possession?
belief that the land was held under licence (although mistaken) meant that the intention to possess is diminished and adverse possession cannot be claimed.
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?
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’.
How does unilateral permission to be on the land given by the paper owner affect adverse possession? What case is relevant?
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.
In the case of Powell, what did Slade J refer to as being the ultimate touchstone for establishing physical possession of the land?
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’.
In Dyer v Terry, what action amounted as enough to be physical possession of the land?
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.
Legal Aid, Sentencing and Punishment of Offenders Act: Section 144.
Squatting in a residential building is a criminal offence.
Criminal Law Act 1977: Section 7
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’.
In what circumstances would the land registry reject an adverse possession application?
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.
What was decided in the case of Bakewell Management Ltd v Brandwood concerning adverse possession via criminal means?
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.
What is a limitation of actions?
the paper owner must sue for an alleged wrong within a specific period of time from the moment the alleged wrong took place.
What is the limitation period for adverse possession of unregistered land? Limitation Act 1980: Section 15
12 years
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?
30 years
If the land is owned by someone for life, with remainder in fee simple to another person, how long is the limitation period?
12 years + 6 years from the date of the life tenants death.
If the paper owner is currently a tenant of the land under a lease how long is the limitation period?
12 years against the tenant, but after the lease expires there must be another 12 years of adverse possession.
What action by the paper owner can stop the clock on the limitation period?
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.
According to Limitation Act 1980: S29/30 what will stop the clock?
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.
What exception is made to the acknowledgement of title rule that will NOT stop the clock?
If the acknowledgement of title is written ‘without prejudice’.
What action did Smith v Waterman acknowledge could constitute to stopping the clock?
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.
On an unregistered freehold estate what does successful adverse possession mean for the transfer of title?
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).
In an unregistered leasehold estate, how can the landlord recover their land?
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.
