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Lecture 16 – Adverse Possession 1

Land Law (University of Exeter)

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Lecture 16 – Adverse Possession 1

What is adverse possession?

 In common law there is no right for absolute possession

- Looking at whether you possess the land is v important to figure out if you own the
land
- Possible for the people in possession and the people who own the title deed to be
different people – if the people possessing it go to sell it, might cause confusion
between who actually owns it
- At some point title ownership has to stop to make ownership of land much more
easy to figure out
- If you sleep on your rights you will loose your right to that property

 The right to acquire title of land through long possession

 Why do we allow it?

- To give security of title
- To maintain the utility of land

 Adverse possession if v emotive – based on fairness

- Squatting is about an individuals needs – homelessness – not law

Adverse Possession: Land Theft?

 Best v Chief Land Registrar

- Facts: B discovered a rundown house. He was told the owner had died and the son
hadn’t been seen for a long time. B worked on the property for a number of years,
repairing the roof, windows, ceiling etc. with a view to making this house a
permanent home
- Contrast with Ja Pye v Graham
- Is it fair for Best to get the property – YES
- Held: Best got the land he had worked on

 Ja Pye v Graham
- G bought Manor Farm from P, who give G a licence to use neighbouring farm land
for grazing. P intended to develop the property at a later date and it had a
development potential of £10 million. When the licence came to an end G requested
a new licence but continued to use the land when P failed to respond.
- Is it fair to get the property? – does value have an impact – yes – less fair
- Held: Graham got the land he had been working on – decision was criticised – Ja Pye
lost land through no fault of their own

 Zarb v Parry
- Neighbouring properties. In the past there had been a sale of the garden from one to
the other and the boundary had moved. A dispute between the current neighbours
arose about the boundary. Thinking the Parrys were away on holiday the Zarbs
entered their garden and started banging in new fence posts.
- Is it fair? NO

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Lecture 16 – Adverse Possession 1

- Held: Zarbs did not get the property. Parry’s had legitimatately came to the property

The good it can do?

 Housing crisis
- More than 11,000 homes in UK that have been empty for 10 years
- 10 empty homes for every homeless family in England

 Could use AP as a way of redistributing homes – fix the homelessness issue

 Protest squatting – belief that property shouldn’t be owned

The bad?

 Can damage the property – cost money to redo it

 People who legally own the property are locked out of their own homes
- Forced to go to court – costly

Squatting: The Law

 Land Law
- s15(1) Limitation Act 1980
 “No action shall be brought by any person to recover any land after the
expiration of twelve years from the date on which the right of action accrued to
him or, if it first accrued to some person through whom he claims, to that
person.”

- Land Registration Act 2002

 Applicable on 13th October 2003
 s96 and Schedule 6

 Criminal Law
- s114 Legal Aid, Sentencing and Punishment of Offenders act 2012
 Criminal act to enter a residential building as a trespasser, and ought to know
they are a trespasser, with the intention to live there for any period.
 Criminalized squatting in residential areas
 During the MoJ consultation – survey – 96% did not want a change in the law
 Was introduced late into the bill so had less scrutiny – random act for it to be
included in
 Doesn’t change the land law structure – it just effects the most vulnerable
squatters (homeless) – most likely to recive criminal sentences – people who do
it politically are more likely to know their rights so will be OK

Adverse Possession: The Components

1. Dispossession/discontinuance AND

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Lecture 16 – Adverse Possession 1

2. Factual possession AND

3. Intention to possess AND
4. The possession is adverse

Must be proved by the whole of the 12 years – the squatters can change

Dispossession/Discontinuance

 Discontinuance is when the owners gives up possession

 Dispossession is where one person comes in and puts another person out of possession

 Need to look at the start of the adverse possession claim

 Do not need to be forceful or have to find one or another – just need to be able to say
broadly whether there has been some kind of dispossession or discontinuance

 Buckinghamshire CC v Moran [1990] Ch 623 à Nourse L: distinction between the two is

“a very fine one”.

 Broad test – not difficult to find –

- Ja Pye – squatter is in possession when the legal owner cant be

Factual Possession

 Appropriate degree of physical, exclusive control over the squatted property

- Exclusive control – cant have lots of different squatters making separate claims
about the same bit of land. Can be in possession at the same time as the owner.
- Complete control – problematic – squatters not there all the time – come and go –
just means the occupier would be expected to deal with the land as the owner would
have
- Factual possession – depends on context

 Dependant on the context

- Lord Advocate v Lord Lovat (1880) 5 Ap Cas 273
- Some examples:
- Red House Farms v Catchpole [1997] 2 EGLR 125 – Shooting – land was only fit for
shooting – was enough for the squatter to just prove they have shot on the land

- Powell v McFarlane (1977) 38 P&CR 452– Slade LJ touchstone question – claim didn’t
succeed – the complainant was a child – have to be an adult to claim AP – cutting
hay, grazing animals, shooting = possession – deal with the land as an owner would
be expected to do

- No notion of physical enclosure of land in Redhouse Farms and Powell – but the
activities being done on the land were enough for factual possession. Physical
enclosure (fence, lock) is the most obvious way to show possession

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Lecture 16 – Adverse Possession 1

- Buckinghamshire CC v Moran [1990] Ch 623 - Physical enclosure – possession

comprises of complete and exclusive physical control – Land at the back of Morans
house was owned by the council who were going to build a road on it in the future –
over the years Moran encliosed the land into his garden by putting a fence around it
– new lock on and flowers – could have done nothing more to prove factual
possession

 Possession must be enjoyed openly - Purbrick v London Borough of Hackney [2004] 1

P&CR 553
- Facts: property was a burnt out shell – derelict for a number of years – squatters
increased their use over a number of years – squatters wanted maintain a low profile
as he didn’t want the owners to find him
- Held: Was not fraud or concealment – appeared to have been in possession –
doesn’t matter if they sneak in or maintain a low profile – question is if on the facts
have they had factual possession and enjoyed that possession openly

Intention to possess

 Animus possidendi

 Difficult to define - debate about whether the intention is to exclude the world at large
or intention to possess

- Powell v Macfarlane (1977) 38 P&CR 633 – held that an intention to possess included
an intention to exlude the word at large – problematic – squatter cannot prove they
want it to exclude the world at large

- Buckinghamshire County Council v Moran [1990] Ch 623 – held that the requisite
intention was merely an intention to possession – don’t need an intention to
exclude the world at large or own the land

- J.A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 – upheld Buckinghamshire

 Intention to possess need only be for the time being but must be manifested clearly
- Must be easy for the squatter to prove they had an intention to possess – prove that
in reference to their factual possession

Possession must be adverse

 Squatter and the owner must be adversaries (opponents in conflict or dispute)

 Remnarace v Lutchman [2001] Lord Millet: adverse possession “is possession which is
inconsistent with and in denial of the true owner. Possession is not normally adverse if it
is enjoyed with the consent of the owner”

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Lecture 16 – Adverse Possession 1

- Tenants cannot claim AP as they have permission to be on the land

 Lack of permission is key:

- BP Properties Ltd v Buckler (1988) 55 P&CR 337 – B was in possession of a licence to
be in possession of the land so her claim failed
- JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 – G bought Manor farm and had an
express license to graze animals on an adjorning piece of land which was owned by
JA Pye – when the land ran out the Grahams tried to renew their license but JA Pye
did not reply – G could be successful in their claim – just because they started out
with possession, when the permission expired they met the 4 conditions and had to
wait 12 years

 Can permission be implied?

- Limitation Act 1970 Sch 1 para 8(4) – cannot imply permission
- JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 – tried to argue there was implied
permission to be on the land as they had given it before

Interruption of time

 The twelve years must operate continuously. Any interruption restarts the clock.
- In JA Pye – if they had sent a letter 11 years and 11 months in granting a license to
use the land then they do not have the twelve years

 What is interruption?
- Zarb v Parry [2011] EWCA Civ 1306 – 29th July 2007 – boundary had shifted –
neighbour claimed that even if the boundary had gone up in the wrong place they
owned it now through AP. Zarbs argued that their invasion into the Parrys garden to
put up new fence posts interrupted the time – no longer had factual possession –
was not an interruption. Putting up a flag, putting a fence there or an oral
declaration was not enough to interrupt the clock (symbolic steps)

- Acknowledgement of title – s29 & 30 Limitation Act 1980 – Acknowdegment has to

be formal, in writing and signed for the clock to stop

- Allen v Matthews [2007] 2 P&CR 21 – acknowledgement counts on the true

construction of the document and the circumstances

- Ofulue v Bossert [2008] EWCA Civ 7 – letter made by the Bosserts detailing
permission – letter was headed without prejudice (you cannot use this against me in
law) – courts held that as a matter of public policy this notion did not constitue an
acknowledgemen of title – want it to be formal – not hidden

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