ADVERSE POSSESSION (A.

P)
 The law of AP allows a mere squatter to have a better claim to the
title of land. If squatter completed the certain period time then law
will allow his/her title.
 Against AP:
o It must not be much relevance when we are moving towards
system of e-conveyancing.
o A registered owner should be protected in law and land
should not be given to squatter because of mere possession.
o Public perspective is ruined and the idea of not fair squatter
are considered as land thief.
o It will give rise to new criminal offence and promote bad
practice.
 In Favor:
o Denial of legal assistance who should sleep over their rights
and law should not intervene.
o To bring an end to dispute concerning ownership.
o AP ensure full economic and social utilization of land.
 Important Statutes: LPA 1925, LPA 1925, LRA 1925 AND LRA
2002.
 AP common rules for registered and unregistered:
o Physical possession is an essential ingredients of adverse
possession.
o Pye v Graham: A liscence was granted to neighbor to use
land as a pasture. After 5 years lisencee applied for renewal
the license and no reply was given. Squatter continued to use
property for 12 years and later claimed for AP. During that
12 years period owner sold the land to another person. This
new owner sent warning letters to vacate the land but he did
not give response to it. So the owner thought that he will take
action when he will need the land. However this led to
 completion of limitation period against the owner
(Unregistered 10 years and Registered 12 years).
 AP was allowed. Lord Brown Wilkinson the question to
be asked is the claimant in possession of the land
without the permission of land owner. He further said
the nature and manner in which land used will help
determine whether physical possession exists or not.
o Powell v McFarlane: 14 year old boy riped down a flounces
fence, entered with his cow for grazing. He used it for
number of years and cow died. He started to shouting on
flounce. Later started shooting business over there. The boy
could not become adverse possessor due to three reasons:
 He was allowed use the farm for grazing his cattle by
the owner (license).
 He was 14 year old and not capable of forming any
competent intention of adverse possession.
 He had no other interest in the area. There was no
neighboring land which he would occupy.
o Court said that Factual possession means a sufficient degree
of physical custody and control for once own use.
 Buckingham CC v Moran: BCC bought an open land with the
highway with the intention of any further extensions of Highway
and this land was vacant and less traffic but extension was not
needed. M knowing that council does not intend to use the land he
extended fence of the property and made a garden there with the
gate and locked. Council does not say anything for 12 years. Later
the council wanted to make lease on that party for X.
o Court said that council was not allow to do that and AP was
successfully done. Fencing and putting lock are enough to
prove factual possession.
 Lamberth v Archangeil: The act of putting the lock was
considered as to be an act of factual possession. Court said that
 factual possession may include any extensions made to the
property. Such as installing cameras, name board, electricity meter,
changing furniture etc.
 Port of London v Ashmore: A moored his vessel on port for 26
Years continuously without paying any tax or rent. He would clean
the bank and occupied river bank and certain thing were also
installed for other people to visit. Council sent notice to remove
vessel or pay tax. A ignored notice and council sued him and claim
AP.
o High court stated that Ashmore has successfully run the
limitation period against council. Took into the account that
property was public property and also took account the fact
that since the river is titled river the vessel kept moving
continuously with tides. Despite this they allowed adverse
possession. Mooring your vessel amounts to factual
possession.
o Court of appeal decision is still pending.
 R on the application of Smith v Land Registary (Peters
Borough Council): The squatter parked his caravan on the side of
highway and lived over there for 12 years. Thus enjoying the
property to adversity of owner (govt).
o Highway is public right of way which is incapable of being
adversely possessed.
 Baxter v Mannion: B’s father used neighboring land for grazing
his horses over period of 12 years. The use however varied. Some
horses died but B continued to use land for grazing other animals
and after completion of 12 years claimed AP. Notice was sent to M
but he does not response timely because of his illness and M could
not sent an agent to take any action. M could however successfully
claim that B possession of property was incapable of forming
factual possession because his possession varied every day.
Additionally there was no other action taken B which indicated
 that he was the owner of property. He maintained the property only
for his own animals whereas owner has taken actions beyond this.
o Courts said that this does not mount to factual possession
because his purpose varied. Does not take any other action
which could satify that he is the owner of the property.

 Overruled case- Leigh v Jack: Court said that similar use was
consistent with owner use of property and does not amount to AP
as the squatter use did not interfere with the real owners plan. In
order for the squatter action to amount to AP the use of property
has to be adverse or inconsistent with the owners use.
 The above argument was rejected and fell in doubt in the case of
Moran and was finally overruled in Pye v Graham in which Lord
Brown Wilkinson asserted that it is immaterial whether squatter is
aware that land owner had an intention to use land in future that
was consistent with the actual present use by squatter so even if
squatter is using a land in a manner in which paper owner had used
it it will not deny a claim of AP.
 Treloar v Nute: It is not essential for paper owner to be
inconvenienced by the act of possession.
 Techbild v Chamberlain: Court said possession will not be
presumed by any temporary acts such as clearing the land to allow
children to play.
 Dyer v Terry: Basic cultivation was enough to prove physical
possession.
 Minchinton: Court said that it is effect of action of AP’s which is
important not the motive with which they are done. Motive is
irrelevant and if you are adverse possessing without motive then it
does not matter.
 Second requirement is Intention: Powell v Mcfarlane: Court
said that adverse possessor must intend to possess land to the
exclusion of all others.
 Lambeth v Arcangel: Court said that while the squatter has put
locked on the property which was an act of possession however the
property was referred to as Lambeth property as squatter did not
treat himself as the owner.
o The moment where there is acknowledgment squatter claim
would not be satisfied because he is not treating the property
as its own.
 Battersbean v Wandsworth: The occupier allowed others to use
bombed pub site and given keys to use the property to his
neighbours. This was contrary to any intention of adverse
possession as allowing the neighbor to come to property at any
time without notifying him did not amount to exclusive possession.
o People who are allowed to use property without disturbing
the exclusive possession will include family members, people
you have loved relationship, cohabiting couples and close
friends.
 Lambeth LBC v Blackburn: Intention to possess still exist even
if squatter would have been prepared to accept permission if one
had been offered.
 J Alston & Sons Ltd v BOCM Paul’s Ltd: Intention still exists if
claimant would have been prepared to quit possession if required.
 Any acceptance of permission will destroy the intention to possess.
 Awareness that land belongs to someone else does not kill an
intention to possess but acknowledgement does.
 Clowes Development v Walters: Squatter feels that he is living
on property on permission but he has mistaken belief. It was held
that belief land is possessed with the permission of paper owner is
fatal to claim of AP even if the belief is mistaken one.
 Graham & Mitchell: If the property was once occupied with
permission any continued possession after permission has ended
may be sufficient to support the claim of AP.
 The courts said it is wrong to regard the questions of intention and
physical possession as being entirely disconnected because
sometimes an act of possession will be an evidence of intention
itself. Examples:
 Moran: enclosing land by your fence is an act of
possession and also indicates an intention to possess.
 Blackburn: Changing locks to a flat.
 Graham: Grazing animals on enclosed field.
 Adverse possession rules on Unregistered Land:
 The specific time period for which the adverse possessor has to
hold property is called limitation period. If the paper owner does
not bring a claim before the end of this period he will be statued
barred and will have no means of recovering the land resulting in
the adverse possessor having a better claim to the title.
 Sec.15 Limitation Act 1980 (LA): Limitation period is 12 years
for unregistered land.
 Schedule 1 Para 10 of LA: Charitable Corporation is 30 years.
 Schedule 1 Para 11 LA: If property is of crown then limitation
period is 30 years.
 Sec.15 LA: If property is owned by A for life and remainder for B
12 years against A and after A has been dismissed then another 6
years against B.
 Sec.15 Schedule 1 Para 4: If paper owner has let the property
under a lease 12 years have to complete against the tenant and
when the lease has finished another 12 years of landlord.
 Chu Pin Quan v Lam Island Development: The case gives an
exception to the rules set out in Schedule 1 Para 4. If the landlord
could not have evicted the original tenant because of the option to
renew the lease, the landlord cannot evict the adverse possessor
who has displaced him.
o Those rights which the tenant had, the same rights will be
available with the squatter.
 Smith v Lawson: The adverse possessor had an occupational
license to stay on the property on the basis that you are working on
the property. E.g allow a servant to stay in the quarter. After 12
years he says I have a right? No right will be granted.
 Hanslow v Minchinton: It is not essential to establish that the
adverse possessor is in possession at the moment the action for
recovery is commenced provided that the limitation period is
completed.
 If the adverse possessor completes the limitation period of
unregistered land and then the land is registered by the owner, who
had no notice of the adverse possession and the adverse possessor
goes out of possession, he would have no right against the first
registered proprietor.
 If the limitation period is disrupted it will start all over again.
There are three ways of disrupting a limitation period:
 A successful action for possession before the end of
limitation period
 Pursuant to Sec.29 and 30 of LA if the squatter
acknowledges the title of paper owner before the end of
limitation period the clock of limitation period will stop
e.g through paying rents.
o Offlue v Bossert: A statement in court proceeding
amounted to acknowledgement, Lambeth.
 If the paper owner retakes physical possession before the
expiry of limitation period.
 Smith v Waterman and Zarb v Passy:
 Recovery of possession by the paper owner to
stop the clock should be such that to demonstrate
the retaking of custody and control of the land.
This would be through self help. The claimant
paper owner does not require continuous physical
occupation.
  Sec.17 LA sates that after the completion of
limitation period the paper owner looses his right
to sue.
 Nicholson v England: Any acknowledgement
after the end of limitation period cannot receive
the paper owner title.
 Colchester v Smith: A written acknowledgement
after the completion of the limitation period was
enough to defect adverse possession.
 Colchester was followed in Trustees in
XCharity for Sir John v Mayride. The court
held that a bona fide agreement between the
squatter and paper owner which amounted to
acknowledgement was upheld on public policy
grounds even after the completion of the
limitation period . Court highlighted that a man
used to be bound by his contract.
 Completion of AP of Unregistered Freehold Estate:
 Does not transfer any title from the paper owner to the
AP but rather prevents the paper owner from suing the
AP. As the AP is not the purchaser he gets the land
subject to all preexisting proprietary
obligations/interests and adverse possessor cannot be an
equity’s darling. After adverse possession the paper
owner has just the document. Adverse possessor has no
proof of title.
 If the adverse possessor has proof of adverse possession, he
can find a purchaser and convey the land to him through a
deed. This deed will be an evidence of his title and also the
first evidence of the title of the new purchaser.
 AP Unregistered Leasehold:
 Twelve years against the tenant and another 12 years
after the end of lease against the paper owner.
 Tickner v Buzzacott: If the landlord brings forfeiture
proceedings against AP who is now the tenant example
for non-payment of rent the landlord can terminate the
lease kicking the squatter out who has now replaced the
tenant.
 Fairweather v Saint Marylebone Property ltd: The
tenant successfully surrendered the lease to the landlord
after the completion of AP following which the AP had
no right to live on the land and landlord right of
possession was now active.
 It is criticized authority because original tenant
surrender after the completion of time period.
Why should original tenant has right to surrender.
 Criticism: Why can an ejected tenant exercise the
power to surrender the lease when he actually has
lease that is an empty shell. He did not have the
right to surrender the lease after the completion of
limitation period.
 Commercial Estate Ltd v Kato Ltd: The court
highlighted that the effect of sec.75 LRA 1925 was to
ensure that the tenant interest was held on trust for AP
and tenant could not surrender the lease after period of
limitation had run. Tenant interest in the lease had now
passed to AP who could remain on land for the
remainder of the term.
 Turner v Chief Land Registrar: Court said that AP
who’s limitation period is not yet completed could not
register a caution against the first registration coz law
encourages first registration. However such an AP will
 be consider to have proprietary right even before the
completion of limitation period e.g it is transferable.
 Asaher v Whitlock: During the limitation period the
AP has a valuable proprietary interest which can be
transferred to another person through will or inter
vivos.
 Effect of AP on Registered Land:
 Schedule 12 Para 18 LRA 2002 states that if 12 years of
adverse possession are completed before 13th October
2003 (the date when LRA 2002 came into force) then
AP is entitled to be registered as the owner of land.
 Sec.75 LRA 1925: If this registration is pending then
registered proprietor holds it on trust for AP.
 After LRA 2002 (AP): Sec.96 LRA 2002 says that there is
no period of limitation that can threaten the registered
proprietor’s title just coz someone has taken possession of his
property for specific time period. Even after proving factual
possession and intention to possess the registered proprietor
does not loose hios title.
 LRA 2002 establishes an application procedure instead of
limitation principle. Through this the burden of making claim
to the registered title rest on AP and paper owner would not
have to do anything to maintain his title except for taking an
action when the adverse possessor applies for registration.
After being in possession for atleast 10 years the AP will be
eligible for making an application to get himself registered as
the proprietor.
 The moment he will apply the notice is sent to paper owner.
There are three responses on the receipt of notice:
 Consent on the application by the paper owner and if
accepted then AP will be owner.
  Objection: Paper owner conveys that factual basis of
the claim of AP is false. This simple objection by PO is
likely to occur only if he can defeat the factual claim
for possession.
 Serving the counter notice with or without objection
irrespective of whether factual basis for AP exist. The
AP cannot be entered as new registered proprietor
unless three exceptions exist. Two year period of grace
after counter notice to recover possession by the courts.
 Three Exceptions Schedule 6 gives these exceptions:
 Where it would be unconscionable for the current
proprietor to disposes the AP coz of an estoppel and
circumstances are such that the adverse possessor ought
to be registered. Example: Where AP has made the
building on the proprietor’s land in mistaken belief that
he was the owner and proprietor has knowingly not
notified the AP of his mistaken belief.
 Where the adverse possessor is for some other reason
entitled to be registered as proprietor e.g where AP is
entitled to the land under will or where he has
contracted to buy the land and paid for purchase price
but the legal title has not yet been transferred to him.
 Boundary Exception: Applies where there is boundary
dispute concerning adjoining land for atleast 10 years. 4
conditions need to be fulfilled to apply:
 The land of applicant is adjacent to the land to
which claim relates.
 Exact boundary has not been determined.
 Land to which application relates has been
registered for more than one year.
  Applicant reasonably believed that land to which
application relates belong to him, the believe
should for atleast 10 years (Zarb v Parry).
 Offlue v Bossert 2008: Court held that acquisition of title
by the adverse possession does not violate the rights of
paper owner.
 Pye v UK 2007: It was held that the law of adverse
possession under 1925 act and LRA 2002 is compatible
with ECHR given that it is less generous to the squatter.