Chapter 6 - Adverse Possession

Question 1

What must a person prove to be in adverse possession?

Answer 1

1. Factual possession;
2. Intention to possess; and
3. That the possession is adverse.

(JA Pye (Oxford) Ltd v Graham)

Question 2

What is factual possession?

Answer 2

Factual possession indicates a degree of physical control over land which is dependent on the facts of the case, including the nature of the land and the way that particular type of land is commonly used or enjoyed.

(Powell v Macfarlane (1977))

Eg – if the land is a house, possession will involve living in the house (as that is the way houses are commonly used)

Question 3

Chambers v Havering (2011)

Answer 3

Significance of fencing depends on the facts and not conclusive.

If its effect is to totally exclude the paper owner, more likely to be evidence of possession – but not conclusive

Question 4

Pilford v Greenmanor (2012)

Answer 4

No legal requirement for C to enclose the compound such that nobody could gain access without permission

Question 5

Will it be adverse possession if possession is shared?

Answer 5

Sharing possession with the paper owner is not sufficient to satisfy requirement of possession.

Clock will stop running for squatter if period of possession is interrupted by true owner – but true owner must take exclusive possession

Question 6

What is intention to possess?

Answer 6

Intention in one’s own name and on one’s own behalf to exclude the world at large including the owner with paper title so far as was reasonably practicable and so far as the processes of the law would allow and to make such intention clear to the world

(Powell v Macfarlane (1977))

Question 7

How can intention to possess be demonstrated?

Answer 7

Courts are reluctant to rely on C’s own evidence as to his intention they will look at C’s conduct from which it can infer intent.

(J Alston & Sons v BOCM Pauls Ltd (2008))

Question 8

What does “possession must be adverse” mean?

Answer 8

The owner must not have given permission for the possessor to be there. They must also not acknowledge the owner’s title.

LA had given consent for occupiers to be there therefore no adverse possession.

(Smart v Lambeth LBC (2013))

Adverse possessor could not claim title because he had accepted a lease from the council in which he acknowledge the council’s title to the land

(Colchester Borough Council v Smith (1992))

Question 9

When does time start to run?

Answer 9

1. when another takes adverse possession and
2. there is factual possession and
3. an intention to possess and
4. adversity of possession

Question 10

When is an owner time barred from claiming back his land if it is unregistered?

Answer 10

Under s15 Limitation Act 1980 it is after 12 years from when the adverse possession started. It is 30 years if it is Crown land.

Where a squatter dispossesses another squatter, the second squatter can count the first squatter’s time in possession as his own.

(Mount Carmel Investments Ltd v Peter Thurlow Ltd (1988))

Question 11

What are the effects of the paper owner not bringing an action to claim back their unregistered land?

Answer 11

It is to bar the owner’s right of recovery (s15 LA 1980)

In addition, his title is extinguished under s17 LA 1980

Once title is extinguished true owner cannot claim rent in relation to period of adverse possession (Mount Carmel Investments)

No transfer of title from the true owner to the adverse possessor is necessary

Adverse possessor will be subject to any 3rd party rights which run with the land eg. pre-existing mortgage

Question 12

When was an owner HISTORICALLY time barred from claiming back his land if it is registered?

Answer 12

Under the Land Registration Act 1925 the position was same as with unregistered land.

However, paper owner’s title was not extinguished, instead registered proprietor held the land in trust for the squatter under s75 LRA 1925 until the title was transferred to the squatter.

Question 13

When was an owner NOW time barred from claiming back his land if it is registered?

Answer 13

Under the s.96 Land Registration Act 2002 there is no limitation period as such.

A squatter who has been in possession for 10 years can apply to be registered as the registered proprietor of the land in question

Question 14

How does a squatter make an application to be the registered owner?

Answer 14

1. The application is made to Land Registry.
2. The registrar notifies registered proprietor and owner of any registered charge (mortgage).
3. They have right to serve a counter-notice within 65 working days
4. If no counter-notice is served, squatter becomes new registered proprietor
5. If a counter-notice is served, squatter’s application is automatically rejected unless squatter can satisfy one of three conditions under LRA 2002 para 5 Sch 6
6. If application is refused squatter can make a further application if he remains in adverse possession for two years after his first application was refused
7. Registered proprietor has no defence to a second application

Question 15

If a counter-notice is served what conditions must a squatter satisfy in order for their application to not be automatically rejected?

Answer 15

1. It would be unconscionable for the registered proprietor to dispossess the squatter and the circumstances are such that the squatter ought to be registered OR
   2) The squatter is entitled to be registered as proprietor for some other reason (eg he has contracted to buy land and has paid price but legal estate was not transferred to him) OR
   3) The land to which the application relates is adjacent to land belonging to the squatter and:

a. The exact boundary lines have not been determined and
b. The applicant reasonably believed for at least 10 years that the land belonged to him and

c. The land itself was registered at least one year before the application

Question 16

What are the effects of the squatter not bringing an application to claim title of the registered land?

Answer 16

Until an application is made the squatter remains a trespasser.

The registered proprietor’s title is not extinguished.

Question 17

How does adverse possession work in unregistered land when there is a lease in place?

Answer 17

For a squatter to take full possessory title he must prove adverse possession against both landlord and tenant.

A tenant cannot reclaim their lease if the adverse possession has continued for 12 years or more.

For the landlord, adverse possession begins to run after the lease has expired. The landlord must take actions within 6 months of the end of the lease or 12 months from when the squatter dispossessed the tenant whichever is longer.

If there is adverse possession against the tenant, they can surrender the lease to the landlord who will be able to re-take possession.

Question 18

How does adverse possession work in registered land when there is a lease in place?

Answer 18

if the squatter has met all the conditions for adverse possession he will be the registered owner of the lease. At the end of the lease the land returns to the landlord.