LJ Slade in Powell v Mc Farlane [1979] 38 P &CR 452 mentioned that if a person

doesn’t possess paper title, he should show Factual possession (appropriate degree of
occupation or physical control) and animus possidendi (requisite intention to
possess) to succeed in a claim of Adverse possession. Critically analyse this with
reference to case law and legislative provisions in UK.
https://e-lawresources.co.uk/Land/Adverse-possession.php

In order to make a successful claim for adverse possession in both registered and unregistered land,
the squatter must demonstrate that they were in factual possession for the requisite period of time
and that they had the intention to possess. This was established in Powell v McFarlane (1977) 38 P &
CR 452 (Case summary) and affirmed in Pye v Graham [2003] 1 AC 419 (Case summary).

 Explain adverse possession (AP) and 3 requirements of it.

1. Factual (true) possession of the land. - In order to have factual possession of the land, the
squatter must be dealing with the land as an owner might be expected to, and no one else must be
doing the same. There must be an appropriate degree of physical control
2. Intention to possess the land. - 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
3. Land has been possessed for the full time-period - It is not necessary for the adverse
possession to be by one person for the whole of the period: as long as the period of possession is
continuous, the periods of possession of successive squatters may be aggregated

A doctrine defined by UK law, adverse possession applies when a person trespassing on a

property - which is owned by someone else. Adverse possession is possession inconsistent
with the title of and without the permission of the true owner, and a means of acquiring title to
that land by long possession (12 years in the case of unregistered land and 10 years in the case
of registered land).By taking and maintaining possession of land without the permission of the
original owner, ownership of the land can be acquired. In unregistered land, twelve years'
adverse possession is required. In registered land, adverse possession is provided for by
Schedule 6 of the Land Registration Act 2002.

Squatter - a person who unlawfully occupies an uninhabited building or unused land

 Explain why adverse possession is allowed; logical reasons for it

There are multiple perspectives on this, and it can be divisive.. here are some of
them

Some would argue that is a squatter has occupied the land for so long, they might
have improved it/maintained it (although not necessarily)
 Some would argue that landowners should not be allowed to rely on their property
rights which they have failed to uphold for such a long time

Some would argue that land, being such a valuable asset (and so important to our
economy) should not be removed from general circulation and should be used.
(should you be able to buy a property and just leave it, if you wish. Its your
investment after all..)

Some would argue that land should be protected, and should not be allowed to sit
abandoned or unused for years. (Are we making the most out of the limited land we
have? Is context important – do we want a big building in the center of town just left
or rot? Does it matter if a field in the middle of nowhere is left unused?)

 Mention statement by LJ Slade inPowell v McFarlane(1977); “If the law is to attribute

possession of land to a person who can establish no paper title to possession, he
must be shown to have both factual possession and the requisite intention to
possess (animus possidendi)….”
In Powell v McFarlane, ((1977) 38 P & CR 452. The House of Lords approved this statement of the law in
J A Pye (Oxford) Ltd v. Graham [2002] UKHL 30.) Slade J said:

“Factual possession signifies an appropriate degree of physical control. It must be a single and
[exclusive] possession, though there can be a single possession exercised on behalf of several persons
jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in
possession of the land at the same time. The question what acts constitute a sufficient degree of
exclusive physical control must depend on the circumstances, in particular the nature of the land and
the manner in which land of that nature is commonly used or enjoyed … Everything must depend on the
particular circumstances, but broadly, I think what must be shown as constituting factual possession is
that the alleged possessor has been dealing with the land in question as an occupying owner might have
been expected to deal with it and that no one else has done so.”

 Furthermore in Pye v Graham(2002) , Lord Brown Wilkinson reaffirmed that there

are two elements necessary for legal possession:
1. a sufficient degree of physical custody and control ("factual
possession");
2. an intention to exercise such custody and control on one's own behalf
and for one's own benefit ("intention to possess")."

 Then in detail analyse the decision in Powell- Exclusive physical possession(factual

possession) and Intention to possess(animus possidendi) the land to the exclusion
of others

1. Factual possession of the land:

 The 4 features of ‘factual possession’
- The squatter must intend to exclude all others (including the true owner)
- The squatter must be in factual possession for an ‘unbroken’ period of time
- The squatter must openly carry out their possession
- The squatter’s possession must be adverse to the true owner

You can briefly mention what each of these mean and cite cases to support

 Then focus on animus possidendi as intention to possess.

- Slade J in Powell v McFarlane (1979) 38 P&CR 452 explained that the intention
must be “to exclude the world at large, including the ownerwith the paper title… so
far as is reasonably practicable, and so far as the processes of the law will allow.” ;
Mention how the intention is deduced by conduct. What kind of conduct?
Examples of conduct accepted by the courts:
- Notices: ‘keep out, private property’ signs are a good way of showing the
world that you are staking a claim to the land. However, any notices must be
enforced.
For example, its not good enough to simply stick up a sign on the strip of land
next to the road which says ‘keep out, private property’ if you continue to let
members of the public walk along it...
- Fences and gates: as we saw in Bucks CC v Moran [1990], Mr Moran
padlocked the gate around the land. And in Pye (Oxford) Ltd. V Graham
[2001] Mr Graham had a key to enter one of the field in question.
- Changing the locks: is clear evidence that the squatter intends to use the
property as their own, and to exclude all others – Lambeth LBC v Blackburn
[2001] 33 HLR 74

 What are the conducts not approved as showing intention to possess? If the
squatters conduct is deemed to be too ‘transient’ (passing, for a short time)
in nature, then it will be insufficient to show the required intention.
In Dyer v Terry [20013] UWHC 209, it was held that the squatter could not
show intentionsimply through the acts of mowing the grass and picking up
litter.
 Include examples of conduct not allowed;
- Sometimes, even fencing (which is usually a good indicator of ‘factual
possession’ and intention) might not be enough!
This has been shown in a couple of cases:
 Fruin v Fruin [1983] CA 448 – fencing was mainly put up in order to keep a
senile member of the family from wandering away...
Inglewood v Baker [2002] EWCA Civ 1733 – fencing was put up around
woodland primarily to keep sheep from wandering away ..

 Demonstrate knowledge of meaning of running with the land - 12 years for

unregistered as per Limitation Act land and 10 years for registered land Sch6
para 1(1) LRA 2002.

Briefly mention and Emphasize the difference between registered land and
unregistered land(the issue of notice) when it comes to AP and how its more
relevant to unregistered land( in registered land how AP is restricted).

Conclude that factual possession is about possession of land without the permission of
the owner and using it as would have been used by the owner, and intention is not
mens rea but can be deduced by the adverse possessor’s conduct.

This means that actual occupation with or without the knowledge of the owner(whether
he knew or not) and conduct sufficient to show possessor had intention to use the land
for their own benefit as an owner would is sufficient to amount to AP as long as the
requisite AP period is met.