Adverse Possession

Question 1

What is the law of adverse possession

Answer 1

A set of rules that offers the opportunity to a mere trespasser to acquire a better title to land than the person who legally owns it

Question 2

Why Adverse possession developed

Answer 2

The fact that the common law have developed principles that might operate to deprive a paper owner of title to land is not a surprise. Historically common law has been more concerned with the productive use of land rather than abstract rights.

Question 3

Case for AP

Answer 3

Hounslow v Minchinton - Minchinton used the land, tending to it, planting, bringing it back into use whereby it was otherwise being wasted. Successful claim of AP

Question 4

What has impacted AP

Answer 4

LRA 2002 - the new scheme led to successful new claims of AP of registered land being considerable slowed to a ‘thing trickle’ Dixon

Question 5

How is AP applied

Answer 5

In modern law, there remains once common set of rules how AP might be established but two sets of divergent rules about the effect of such a claim on the paper owner’s title. The rules common to both registered and unregistered land are the substantive principles developed through case law and are now largely set out by the house of lords in Pye v Graham

Question 6

Critic of development

Answer 6

Rules are the same irrespective of registered or unregistered land. These relevant principles have been established through case law and therefore they are flexible. This is a benefit as it has allowed rules to change as society has developed over time. However, although they are changeable and malleable, this has meant that they have not always formed a uniform approach, therefore there was a degree of uncertainty and the house of lords in pye v Graham sought to bring stability to the law by providing a framework within which cases could be considered

Question 7

Pye v Graham

Answer 7

Pye allowed his neighbours, the Grahams, to use 23 hectares of land that he owned, under a grazing agreement. The document expressly stated the agreement would end 31 December 1983 and that to continue the arrangement a new contract would need to be entered into. Pye did not enter another agreement because he wanted the land for development. The Grahams continued to occupy the land and after 12 years they sought to obtain it under the law of AP. The HoL gave the criteria necessary for an AP claim. This is set out to be:

1. Intention to possess the land
2. Physical possession

Question 8

Intention to possess

Answer 8

The 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. Thus, the claimant is not required to prove that they believed they owned the land, or wanted to acquire it, but more simply that they meant to exclude all others if possible. This is crucial, it means the focus is on the intentions of the claimant not the landowner. Consequently, it is immaterial whether the claimant was aware that the landowner had an intention to use the land in the future that was consistent with the present use by the claimant – the landowners state of mind is irrelevant.

Intention to possess can exist if the claimant would have been prepared to accept permission to use the land had it been offered, or if they would have quitted possession if required. A later admission of the landowner’s title by the claimant is not inconsistent with the claimant having an intention to possess in the mean time. That was the position in Pye itself. Graham made it clear that he would have accepted the grazing licence from Pye, but one was not offered.

Question 9

What is fatal to intention to possess

Answer 9

A belief that the land is currently possessed with permission of the paper owner is fatal. This was the case in Walters. The claimants belief, even if mistaken, that the land was held under licence meant that they simply could not have the relevant intention to possess. You cannot intend to treat the land as within your legitimate control if you believe you are permitted to be there by the owner.

Unilateral permission given by the paper owner can be fatal, even if the possessor does not acknowledge or accept the permission. This was the case in Buckler. Paper owner unilaterally and unexpectedly gave permission to a possessor. No evidence this had been accepted nor requested. Point is that the permission might be evidence that the AP no longer has intention to possess. This was confirmed in Privy Council case Smith

Question 10

Previous occupation, intention to possess

Answer 10

Demonstrated by Pye, if the alleged adverse possessor once occupied the land with permission of the paper owner but continued after permission ended ,this can be sufficient to support a claim of AP

Question 11

Physical possession

Answer 11

AP must also demonstrate the physical taking of possession.

• Whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without consent of the owner.
• Factual possession means a sufficient degree of physical custody and control for one’s own use.
• Powell, Slade J found that whether the alleged possession has been dealing with the land in question as an occupying owner might have been expected to deal with it and no-one else has done so.
• Whole activity is relevant. Individual activities may seem equivocal or trivial, but taken together paint a picture of a person in control of land that amounts to physical possession.

Question 12

Impact of Human Rights

Answer 12

Following the decision in Pye v UK, the law of AP as it applied under the 1925 Act and 2002 Act, is consistent with Human Rights law, in particular art 1 protocol 1 to the convention. The law of AP is a proportionate and legitimate response to public interest concerning the need to limit claims in relation to land and paper owners cannot please a violation of their rights if they lose their title to an Adverse Possessor.

Ofulu, Court of Appeal confirmed that the principles of adverse possession are, as a matter of principle, compliant with human rights law and thus a landowner could not seek to challenge a loss of title on grounds of human rights.

Argument proposed that the recovery of possession from an AP without title contravenes the AP’s right to a home under art 8. This theory was tested in Malik where Air Alan Ward noted that Art 8 could apply where squatters had trespassed onto private land and established a home. However found that this would be very rare that, for their removal, to be so disproportional to the rights of the landowner as to be contrart to art 8.

Question 13

AP and Unregistered Land

Answer 13

The doctrines of the effect of AP on unregistered land is based on the principle of limitation actions.

• a person must sue for an alleged wrong within a specified period of time from the moment the wrong took place.
• This means that a person may be statute barred from bringing a claim against the AP to recover possession of their land after the period of limitation has passed.
• Thus, as against the AP, the paper owner has no means of recovering the land the AP as acquired a better title.

In the majority of cases this limitation period will be 12 years from the moment of AP of the unregistered title.

s15 Limitation Act 1980

However, there are exceptions and additional rules for charities and leases.

Question 14

How limitation clock stopped to prevent AP

Answer 14

1. Successful action for possession or declaration of title by paper owner
2. s29 and 20 Limitations Act 1980 provide AP cannot succeed if they have acknowledged paper owner title before expiry of limitation period
3. Permission given by paper owner
4. Paper owner retakes physical possession

Question 15

Effect of limitation period being done

Answer 15

Once limitation period runs its course the paper owners right to sue and title are extinguished. Should be noted however, there is no conveyance of the land from the paper owner to the adverse possessor. However, with proof of adverse possession, the AP can convey the land etc, Must apply for first registration

Question 16

AP under LRA 2002

Answer 16

For registered land, no period of limitation and no sense in which a registered proprietor loses title because another person has adversely possessed their land (s96). The onus shifts from the paper owner to the AP. Where a person claims to have completed at lease 10 years of adverse possession they may apply to the registrar to be registered as a proprietor. This application will trigger notice to the current registrar proprietor. If the registered proprietor does not respond, AP’s title will be registered. However this is uncommon. Usually the registered proprietor does respond and there is three options:

1. Consent
2. Reject
3. Counter notice

In all but three circumstances, the registered proprietor will have a further two years to remove the adverse possessor simply by asserting title

Question 17

Unregistered land tenant

Answer 17

If the current paper owner is a tenant of the land under a lease, the period of limitation against the tenant is 12 years. The period for the landlord is also 12 years but does not start to run until the original term of the tenancy has ended. limitation act sch1 para 4

Question 18

Effect of successful claim on paper owner

Answer 18

Prevents the paper owner suing and effectively extinguishes title

Question 19

Effect of AP unregistered land

Answer 19

Does not transfer title to the claimant. The claimant may sell or otherwise deal with the land because the absence of title deeds is dealt with by appropriate conveyancing devices

Question 20

Effect on AP in registered land governed by LRA 1925

Answer 20

The paper owner will be the registered proprietor but the adverse possessor is entitle to be registered

Question 21

Effect AP under LRA 2002

Answer 21

If the registered proprietor does not respond, the AP is registered. Usually, the registered proprietor responds and then has three options, consent, object or ask for the application of the stat 2 year rule. The adverse possessor cannot then be entered as the new registered proprietor (assuming no consent) unless either three exceptional grounds is established (estoppel, where the AP ought to be registered, AP is ‘for some other reason’ entitled to be registered, or where there is a boundary dispute). During 2 year period, absent the exceptional circumstances, the proprietor may evict the possessor simply by proving title.

Question 22

Analysis AP

Answer 22

The reforms of the doctrine introduced by the LRA have dramatically improved the position of the owner of registered land, resulting in the emasculation of the doctrine in so far as it applies to registered land (Woods). However, with the introduction of this act it can be seen that the law on AP for registered land and for unregistered land has separated creating two different systems. Although this favours the landowner in registered land, this creates a more complex approach towards the law.

Question 23

Justifications for AP for unregistered land

Answer 23

Woods - as with all laws on the limitation of actions, it is frequently argued that the doctrine is designed to encourage plaintiffs not to sleep on their rights. As unregistered title ultimately depends or is based on possession, the Law Commission when proposing reform in this area, felt that it behoves a landowner to be vigilant to protect that possession and not to sleep on their rights. Implication is that ownership of unregistered land is precariously linked with the maintenance of possession - the owner who does out of possession does so at his peril and has only himself to blame if a squatter acquires ownership through AP. Woods argues that the need to protect possession as the basis of ownership seems an exaggeration in modern times.

It is proposed here that, this potentially harsh failure of owners of unregistered land for their right to be extinguished through AP is a reflection on the importance of registration. It is for ease and clarity for conveyance that registration makes a significant difference. Thus, this is potentially a way to push owners of unregistered land to register their land, therefore providing them significantly more protection against the adverse possessor.