POSSESSORY TITLE Flashcards
What is advserse possession?
Long term possession can be the basis to title to land at common law. Possession of land, if exclusive of other claimants and not otherwise explained, is evidence of a fee simple. This is the doctrine of adverse possession.
What is possession?
Possession gives good title against all the world, except someone having better or superior legal right to possession.
Asher v Whitlock
What needs to be shown for adverse possession?
- There actual physical control over the property, adverse to the true owner.
- There has been such possession for the necessary period of time
- An intention to possess the land to exclude all others.
What is the authority for that there has to be actual physical control of the land, not mere occupation, for adverse possession?
Buckinghamshire Country Council v Moran
There were roadworks, but council put up a fence on roadside boundary f land, but not adjoining owner side. The only access to land was through adjoining owner’s property.
The owner built and maintained a garden etc.
The owner of the adjacent land also put a new lock and chain on the council’s gate.
The land was sold and subsequent owners continued to maintain the land.
Courts held: THe squatter had not only maintained factual possession of land, but also excluded all others include the true owner (council) and they demonstrated an intention to exclude the world at large.
The enclosure of the land indicated the necessary intention to exclude others.
Therefore, the council no longer owned the land via adverse possession.
What authority is there for an intention to possess the land to the exclusion of all others?
BuckinghamShire v Moran.
The person would need to deal with the land as the owner would. There also needs to be an intention not only to exclude the world, but ALSO the true owner.
What are the two preconditions that there has to be possession for the requisite time?
- The titile holder has lost or discontinued possession; and
- Another must have taken adverse possession of that lands.
What is the requisite time period for adverse possession and according to what authority?
s13 of Limitations of Actions Act - recovery of land by the true owner must be brought within 12 years.
By implication, this means that the person must be in uninterrupted possession for 12 years to have adverse possession.
What is the relevance of Pye v Graham?
This is to do with the time period.
Pye and Graham are both licensed to graze on Pye’s land. Pye was not using the land and he let Graham’s use it. The license expired and Graham’s asked for another one but Pye refused as he wanted to develop the land.
The graham’s do not leave the land and instead continue grazing on the land for 14 years. They go to titles office and claim that they are entitled to the property through adverse possession.
Pye seeks to reclaim possession.
First instance, Pye is dispossessed, so he can’t recover. Graham was acting as true owner, he had live stock on there and he intended to exclude all others including Pye.
HOL holds that Graham displayed factual possession for the requisite time.
Pye goes to European Court and argues Doctrine of Adverse possession is contrary to Art 1 of the Protocol that is a right to enjoy interest in the land.
At first, they upheld Pye’s argument.
Matter went to Grand Chamber.
Final decision: it was no breach of the protocol under Art 1. The law of adverse possession has a legitimate aim.
Can you get adverse possession against the Commonwealth?
No. Under s6(4) Limitations of Actions Act, the Crown cannot be expected to monitor all of the land it uses.
What is the relevance of Eckford v Stanbroke?
You can claim adverse possession where a pastoral lease is involved.
