Adverse Possession

Question 1

What is adverse possession?

Answer 1

Adverse possession is the name given to which allows for a trespasser to acquire rights over the land on which he or she is trespassing, if used (i.e. possessed) for a sufficiently long period of time.

However, the rationale for allowing acquisition of title through adverse possession is that if a land owner neglects his land for a long enough period of time, it would be preferable to put the land to better use.

It also places a duty onto land owners to take care of their land and know what is going on in their premises

Question 2

At common law there are three requirements to establish adverse possession:

Answer 2

• factual possession,
• the intention to possess and
• Possession must be adverse

Question 3

What does factual possession require?

Answer 3

Factual possession requires evidence that the claimant has an appropriate degree of physical control of the land and has been using it as an occupying owner would (Powell v MacFarlane).

Question 4

What does physical degree require?

Answer 4

The “degree” required will depend on the nature and quality of the land in question (West Bank Estates Ltd v Arthur (1967)).

Question 5

What is the strongest evidence of factual possession?

Answer 5

The strongest evidence of factual possession is likely to be enclosure by a fence or wall (Seddon v Smith (1887)).

Question 6

What is the intention to possess?

Answer 6

Once the squatter has established they were in factual possession, they must also demonstrate that they had intention to possess. The squatter must have the intention to exclude the world at large including the paper owner.

This does not necessarily mean an intention to own, merely to possess the land for the time being

(Pye v Graham (2001)

Question 7

Can mistaken beilefe form intention?

Answer 7

A person with a mistaken belief in permission can have the necessary intent to possess: (boundaries)

Wretham v Ross

Question 8

What would class as intention

Answer 8

Thus evidence such as changing the locks on a property (Lambeth LBC v Blackburn (2001)) would suggest this intention

Question 9

what does it mean that possession must be adverse?

Answer 9

this means that it is without the express permission of the paper title holder, or at least that the trespasser is exceeding any permission given (Allen v Matthews (2007)).

Question 10

What is the limitation act?

Answer 10

The Limitation Act 1980 sets out the applicable time limits depending on the type of claim being made.

Question 11

How long does a squatter need to be in possession of the land for unregistered land

Answer 11

12 years.

Question 12

How long does a squatter need to be in possession of the land owned by the crown

Answer 12

30 years

Question 13

How long does a squatter need to be in possession of the land for registered land

Answer 13

Land Registration Act 2002 (LRA 2002) has created a very different regime.

Under Schedule 6 of this Act, a squatter who satisfies the basic requirement of adverse possession (i.e. possession of land with the necessary intention and without consent) can apply to be registered as proprietor after ten years.

Question 14

How does a squatter apply for adverse possession?

Answer 14

An application to LR. (ADV1)

Once the application is made, the current registered proprietor (RP) is given notice of the application under Sch 6 (as are any other interested parties: mortgagees, for instance). T

The RP has 65 days within which he or she can object (perhaps on the basis that adverse possession is not made out e.g. the squatter lacks the necessary intention); consent to the squatter’s registration; or respond by counter-notice requiring the Registrar to deal with the application in accordance with Sch 6.

Question 15

How many days does the registered proprietor have to respond to a application of adverse possession?

Answer 15

The RP has 65 days within which he or she can object, consent to the squatter’s registration; or respond by counter-notice requiring the Registrar to deal with the application in accordance with Sch 6.

Question 16

If such a counter-notice is received, the squatter can only be registered as proprietor of the land if the Registrar is satisfied that he or she should be registered on one of three bases:

Answer 16

• first, entitlement by some estoppel;
• secondly, some other reason (perhaps a non-completed contract for purchase where the money was paid over: if it was a long time ago, the Limitation Act 1980 may prevent the occupier enforcing the contract itself);
• or, thirdly, where the matter amounts to a claim over the boundary between two estates (the Schedule provides that the claimant must reasonably have believed the land belonged to him; and that the boundaries have not been determined by the Land Registry).

If the RP (or other interested party) makes no response, the squatter will be registered as proprietor

Question 17

How long does a RP have to take action to repossess?

Answer 17

The RP has a further two years to take action to repossess if the application is rejected because of service of a counter-notice in response to the original application.

If the squatter is still in possession after two years, he or she is entitled to be registered as proprietor – this second application will be made without a Sch 6 notice (albeit the RP will be given general notification of the application) and so is much harder to resist.

Question 18

When can the paper own dispossess the squatter?

Answer 18

The paper owner of the land may dispossess the squatter before the expiry of the limitation period to defeat their claim. This can be done through eviction or taking back possession. It can also be done by moving a boundary fence:

Zarb v Parry

Question 19

Why is it harder to squatters to claim adverse possession in registered land?

Answer 19

The previous law applicable to registered land was seen as outdated, too far in favour of the trespasser and essentially unfair in the way it allowed land ownership to be lost without a clear opportunity to object.

Schedule 6 makes a claim for adverse possession much less likely to succeed as the RP is almost certain to serve counter-notice when the first application is made, and then has two years to evict the squatter.

However, the LRA 2002 has not changed the position in unregistered land (intentionally, as the greater protection now applicable to registered land is in itself a reason for voluntary registration).

Question 20

What will break the continuity of adverse possession?

Answer 20

Acknowledgement or payment by the squatter will break the continuity of the adverse possession. Under s.29 Limitation Act 1980 there will be a fresh accrual of a cause of action on acknowledgement or payment.

Allen v Matthews

Question 21

What does Sch 6 Land Registration Act 2002 relate to

Answer 21

A squatter must now follow the procedures set out in Sch 6 Land Registration Act 2002.

According to Sch 6, a squatter must now make an application to the registrar after 10 years of adverse possession.

Question 22

Why is the LRA 2002 so important

Answer 22

The Land Registration Act 2002 marked a significant change to adverse possession in registered land.

The registrar is then obliged to give notice to the registered proprietor and the proprietor of any registered charge on the estate. This is to alert them to the intended claim on the estate and give them the opportunity to object to the registration. Under sch 6, a person in receipt of notice of a squatter’s application may object on the following grounds:

Question 23

what extent the doctrine of adverse possession has been affected by the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012?

Answer 23

The enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and in particular s144 of that Act raised a query over the continued application of adverse possession as it related to residential property.

The effect of s144 is to make squatting in a residential building a crime, which would mean any would-be adverse possessor in such a building would, by gaining title through adverse possession, be gaining from their illegal activity.

The position was therefore tested in Best v Chief Land Registrar (2015).

The Court of Appeal held that s144 did not directly affect adverse possession,

Question 24

What was the effect of s144 Legal Aid, Sentencing and Punishment of Offenders Act 2012?

Answer 24

The point of s144 is twofold:

1. to make it easier for owners of residential property to remove squatters (as they may now involve the police)
2. and to deter such squatters by the threat of their actions being perceived as criminal.

s144 is a powerful weapon in the paper title-holder’s armoury if the trespass is to a residential property and they take action before a ten-year period of adverse possession has accrued.

Question 25

What case tested the reasoning of s144 Legal Aid, Sentencing and Punishment of Offenders Act 2012?

Answer 25

Best v Chief Land Registrar (2015).