Adverse possession Flashcards
- Understanding of adverse possession, the statutes surrounding it as well as case law (18 cards)
What does adverse possession entail, and where does it stem from?
Adverse possession is the idea that all are entitled to possess, even a thief who has stolen. Established in Castello v Chief Constable of Derbyshire
What is relativity of title? And where was this established
Relativity of title is defined as who has a better right to possess/the land. It isn’t about who has a better title as there isn’t a need to one. Title is relative, and not absolute. Its contingent on a better claim.
-Also law supports possession without asking. Whether it is fair doesnt matter to keep the law clear.
- Established in Ocean estates LTD v Pinder
What is adverse possession contingent on?
Adverse possession is contingent on time. The original owner loses the ability to take back their possession/land after a period of time.
Established in the Land registration Act 1980 AND 2002.
-2002 gave land owners more right as it changed the period of time from 12 years to 10 AND required that the adverse possessor went through the land registry after 10 years. (Limitations act 1980)
What is an inherent vulnerability to title possession?
- You can lose your right to your possession from later possessors.
- Even person with official title (could be a deed) could lose their right to the land if enough time passes.
Explain the details of the case of Asher v Whithole.
- Williamson (Mr Ashers ancestor) had squatted in a house for over 12 years (squat requirement extended to 20 because title owner was disabled, requirement under s.15 of Limitations Act 1980).
- Title passed down to Asher
- Court decided in favour of Asher because adverse possession had clearly applied.
- Two people were arguing as to who got the rights to the house. (One not in Williamsons family)
What case was Williamson the ancestor involved in?
Asher v Whithole
What establishes factual possession, what is factual possession?
Factual possession & Intention to possess
Factual Possession - Being an adverse possessor which requires that you don’t have permission to stay, only begins when permission expires. 10 years under the limitations act 1980. (Changed to 10 Years in the land registration act 2002).
- Must have complete and exclusive control over the land, e.g,. building a fence (Asher v Whitlock). Evidence needs to be shown too. intention to possess and not to own established in Powell v Macfarlane.
- True owner doesnt have to be made aware of possession.
What case talks about intention to possess and not to own.
Powell v Macfarlane.
What does Lord Bingham say about the morality of adverse possession?
It is unjust, nothing fair comes from a result that produces an inherently unjust result.
What Lord said adverse possession is unjust.
Lord Bingham.
Key differences between Land registration Act 2002 v Limitations act 1980
- Adverse possessor must apply to be registered after 10 year period (Section 97).
This gives more rights to land owner with title. Instead of automatically receiving possession, they have to apply for it.
13 weeks to counter, 2 years to commence possession proceedings.
What section of the land registration act 2002 deducts AP to 10 years while needing the AP to register land.
Section 97.
What is schedule 6, paragraph 5 of the land registration act 2002.
Schedule 6, para 5 sets out limitations that protect an adverse possessor.
- If owner receives warning from land registry and doesnt reply, AP can make claim.
- Possession was uninterrupted for 10 years
What part of the land registration act 2002 gives rights to the adverse possessor in which they can make a claim.
Schedule 6, para 5.
What Act criminalised squatting? Shifting it from a civil offence to a criminal offence.
Legal aid, sentencing and punishment of offenders act 2012, s.144
What does the legal aid, sentencing and punishment of offenders act 2012 pose squatting as?
As imposing harm, positioning them as taking propery without consent.
Does squatting remove someones claim for adverse possession?
no, the case of Best chief v Land register established that
- Squatting might be a criminal offence but it doesnt negate ones claim to adverse possession.
-Mr best satisfied necessary conditions (possession + applying at the land register). therefore squatting served no relevance.
What case established the fact that squatting does not negate someones right to adverse possession.
Mr best v Land register.
