Topic 5

Question 1

What are the reasons for recognised rights of squatters?

Answer 1

• Defendants should have an ending in litigation.
• Paper owners should not sleep on their rights.
• Land is a precious resource and should be kept in use.
• Makes conveyancing workable.

Question 2

How do you establish adverse possession?

Answer 2

The paper owner must either have been dispossessed or have discontinued the possession of the land.

Question 3

How do you establish factual possession?

Answer 3

An appropriate degree of physical control over the land to be regarded as being in possession of it.

Question 4

What is considered as an appropriate degree of physical control?

Answer 4

• Fencing around the land.
• Building a house on the land.
• Leasing to a 3rd party.
• Maintaining walls between neighbouring land.

Question 5

What doesn’t constitute ‘a degree of physical control’?

Answer 5

• Children playing on land as and when they please.
• Grazing goats and the erection of a fence.

Question 6

What is the rule about possession?

Answer 6

• It must be ‘open, not secret and not taken by force’.
• Mulcahy v Curramore Ltd [1974]

Question 7

How do you acquire an intention to possess?

Answer 7

• The belief that they are entitled to the property as a tenant/ freehold owner.
• the significance of the Squatters motives.

Question 8

Is there any significance of the intentions of a PO?

Answer 8

• despite having plans for the disputed land, adverse possession can be possible.
• Future plans of a PO are irrelevant.

Question 9

What are the limitations to adverse possession?

Answer 9

• 1980- no action can be brought against any person to recover any land after 12 years from when the action is brought against them.

Question 10

What happens to the title of the property during adverse possession?

Answer 10

it remains with the PO.

Question 11

What is the ‘old law’?

Answer 11

• The limitations acts are related to the both registered and unregistered land.
• the registered owner holds the title on trust for the squatter.
• the land registrar can rectify the register to give effect to adverse possession.

Question 12

What are the ‘new’ laws?

Answer 12

• The LRA 2002 introduced a new scheme for adverse possession, in S6.
• the squatter is registered as the new proprietor
• the registrar must give notice to the registered proprietor of any changes to the register.

Question 13

if the proprietor rejects a notice, what will cause it to be rejected?

Answer 13

• it is unconscionable for the proprietor to reject the application.
• the squatter is otherwise entitles to the land.
• if the squatter is the owner of the adjacent property.

Question 14

what is the new law of leases?

Answer 14

• when adverse possession is against a tenant, they will be registered proprietor.
• they now require 10 years adverse possession against the landlord for them to claim it back.