Ch.10 - Adverse Possession

Question 1

What is adverse possession?

Answer 1

The principle that long use of land without the permission of the ‘paper owner’ can result in rights over that land for the someone unlawfully in occupation, (squatter).

Question 2

What is the rationale for adverse possession?

Answer 2

Optimising land use. Historically, the basis of title to land has been possession.

Question 3

What is the purpose of the Limitations Acts?

Answer 3

To bar claims to land not to grant title.

Question 4

What are the three regimes in adverse possession?

Answer 4

1. Unregistered land.
2. Registered land where the cumulative period of continuous adverse possession amounted to at least 12 years on 13 October 2003. Land Registration Act 1925 applies.
3. Registered land where the cumulative period of continuous adverse possession did not exceed 12 years on 13 October 2003. LRA 2002 applies.

Question 5

What is relativity of title?

Answer 5

Land itself cannot be owned. Only an estate in land (title) can be owned. One person’s title may be superior to another’s.

Question 6

What are the statutory offences for squatting?

Answer 6

1. Failure of a trespasser to leave residential premises requested by a ‘displaced residential occupier’ or ‘an individual who is a protected intended occupier’, s.7, Criminal Law Act 1977.
2. Squatting in a residential building, s.144, Legal Aid, Sentencing and Punishment of Offenders Act 2012. Took effect on Sep 1, 2012.

Question 7

What’s the public policy reasons for allowing adverse possession?

Answer 7

1. Facilitate the economic and social utilisation of land, as in Hounslow v Minchinton (1997).
2. Reduce land disputes (Limitation Acts)

Question 8

What is the legal analytical framework of adverse possession (AP)?

Answer 8

Establishing AP on the facts: the rules for both registered and unregistered title are the same.
Effect of AP: unregistered title-Limitation Acts apply; registered title-LRA 2002 and LRA 1925.

Question 9

What is the significance of the CA case of Ofulue v Bossert (2008)?

Answer 9

Accepts the authority of the ECtHR in Pye v UK (2008) that acquisition of title by adverse possession does not violate the paper owner’s human rights.

Question 10

What are the legal elements of AP set out in Powell v McFarlane (1977), Buckinghamshire CC v Moran (1990) (CA) and Pye v Graham (2002) (HL)?

Answer 10

1. Establish the required degree of exclusive factual physical possession.
2. Animus possidendi: intention to possess and exclude others, including paper owner.

Question 11

What does ‘intention to possess’ in AP really mean?

Answer 11

That the AP meant to use the property (for his own benefit) in some way, Powell v McFarlane (1977)

Question 12

Does AP require intention to possess or intention to own?

Answer 12

Intention to possess and an intention to exclude others and the paper owner only so far as is reasonable, Pye v Graham (2002)

Question 13

What is the ‘implied licence’ theory?

Answer 13

That if the oocupier was aware the landowner had an intention to use the land in a way that is consistent with the occupier’s present use, the occupier has an implied licence.

Question 14

What is Lambeth LBC v Blackburn (2001) authority for?

Answer 14

1. Intention to possess may still be present even if the occupier was prepared to accept permission.
2. Awareness that the land belongs to another cannot negate the existence of a current intention to possess.

Question 15

What is J Alston & Sons v BOCM Pauls (2008) authority for?

Answer 15

Intention to possess can exist even where the occupier would have quitted if asked to do so.

Question 16

Will acknowledgement of the title defeat a claim for AP?

Answer 16

Depends on when the acknowledgement is made. If after the limitation period, it may succeed, Mitchell v Watkinson (2013); Pye.

Question 17

What is Clowes Developments v Walters (2005) authority for?

Answer 17

A belief that the land is possessed with the owner’s permission will defeat intention to possess.

Question 18

What is BRB (Residuary) v Cully (2001) authority for?

Answer 18

Awareness of another’s ownership will not stop an intention to possess, but acknowledgement will.

Question 19

What is BP Properties v Buckler (1987) and Smith v Molyneaux (2016) (PC) authority for?

Answer 19

That unilateral permission will defeat an intention to possess even if the occupier does not acknowledge or accept the permission,

Question 20

What case established that the actions of the occupier in asserting physical possession may provide evidence of an intention to possess.

Answer 20

Buckinghamshire CC v Moran (1990) (CA)

Question 21

With regard to physical possession of the land, what case is authority for that someone could be in adverse possession of land of which he is the registered proprietor matters?

Answer 21

Rashid v Nasrullah (2018) (CA)

Question 22

What is the test of physical possession advanced in Powell v McFarlane (1977) and adopted in Pye v Graham (2002)?

Answer 22

Physical possession depends on facts: the circumstances of the case, nature of the land, and usual use of the land.

Question 23

In Powell v McFarlane (1977), what was the test put forward by Slade J with regard to physical possession?

Answer 23

Whether ‘the alleged possessor has been dealing with the land… as an occupying owner might have been expected to deal with it and that no one else has done so’.

Question 24

What case is authority for that the paper owner need not be aware he has lost possession?

Answer 24

Powell v McFarlane (1977)

Question 25

What case is authority for that the paper owner need not be inconvenienced by the act(s) of possession?

Answer 25

Treloar v Nute (1976)

Question 26

What was the heresy rejected in Pye?

Answer 26

That the sufficiency of the possession can depend on the intention not of the squatter but of the true owner (Bramwell LJ), since it reflects an attempt to revive the pre-1833 concept of adverse possession requiring inconsistent user.

Question 27

In what case did the Grand Chamber of the ECtHR rule that the law of AP as it applies in favour of the occupier under the LRA 1925 and LRA 2002 is consistent with Art.1, Protocol 1, protection of property, of the ECHR.

Answer 27

Pye v UK (2007)

Question 28

In what case did the Supreme Court hold that, as a general rule, an occupier of a home has the procedural entitlement to a determination by the court of the proportionality of eviction in every possession claim by a public authority, even if it was clear there was no domestic law right to remain. It was for the occupier in any such claim to raise that issue by way of defence.

Answer 28

Manchester City Council v Pinnock (2010)

Question 29

What human rights provision might an occupier invoke if evicted?

Answer 29

Art.8, ECHR, right to respect for private and family life.

Question 30

What is the offence under s.7, Criminal law Act 1977?

Answer 30

Failure of a trespasser to leave residential premises when requested by a ‘displaced residential occupier’ or ‘an individual who is a protected intending occupier’.

Question 31

What offence does s.144, Legal Aid, Sentencing and Punishment of Offenders Act 2012 raise?

Answer 31

Offence of squatting in a residential building.

Question 32

in what case was it held that violation of s.144, LASPOA (2012) not a bar to an AP claim?

Answer 32

Best v Chief Land Registrar (2015)

Question 33

What is the principle set out in Bakewell Management Limited v Brandwood (2004)?

Answer 33

There is a distinction between unlawful acts that would always be unlawful and unlawful acts that are unlawful only because the claimant has not the right he is now claiming.

Question 34

Will illegality impair an AP claim?

Answer 34

Gnerally, illegality will impair a rule if the illegality is offensive to the policy of the rule, Patel v Mirza (2016)

Question 35

What principle allows an AP to acquire better title than the paper owner to unregistered land?

Answer 35

Limitation of actions

Question 36

What is ‘limitation of actions’ with regard to AP?

Answer 36

‘No action shall be brought by any person to recover any land after the expiration oftwelve years from the date on which the right of action accrued to him or, if it firstaccrued to some person through whom he claims, to that person’, S.15(1), Limitation Act 1980.

Question 37

What is the effect of s.15(1), LA 1980 on the rights of the paper owner?

Answer 37

It bars the paper owner from raising a claim to his land, i.e. it extinguishes his rights to raise a claim.

Question 38

Does s.15(1), LA 1980 pass title to the AP?

Answer 38

No. But by virtue of the doctrine of relativity of title, he will have a better claim to title than the paper owner.

Question 39

What case is authority for that in unregistered title, it is not necessary to establish that the AP is in AP at the time of recovery action, provided the limitation period has been completed?

Answer 39

Hounslow v Minchinton (1997)

Question 40

What are the four ways a paper owner can ‘stop the clock’?

Answer 40

1. A successful action declaring title, Higgs v Leshel Maryas Investment (2009) (PC). Assertion by letter won’t work, Moran; mere issue of a claim for possession won’t work, Markfield Investments v Evans (2001).
2. Acknowledgements and part payments, ss.29 and 30, LA 1980.
3. Retaking possession. Merely visiting the land is not enough to retake possession, Smith v Waterman (2003).
4. Permission, even if unwanted or not asked for, BP Properties v Buckler (1987); Smith v Molyneaux (2016)

Question 41

State s.17, LA 1980

Answer 41

After expiration of time limit, a title in unregistered land is extinguished.

Question 42

What case is authority for that no acknowledgement or payment can revive title after it has been extinguished by s.17, LA 1980

Answer 42

Nicholson v England (1926). But title was revived in Colchester BC v Smith (1992) after AP acknowledged title of paper owner.

Question 43

What case is authority for that an AP in the process of acquiring title has proprietary rights?

Answer 43

Turner v Chief Land Registrar (2013)

Question 44

What case is authority for that an AP can transfer his rights-so many years of possession-either by will or inter vivos?

Answer 44

Asher v Whitlock (1865)