Page 1 of 14

2020 Zone B Question 1 (AP)

In 1987 Felpersham Council decided to make use of a vacant plot of rough ground it owned on the edge of
town. It drew up plans for the conversion of the land into a car park for tourists and shoppers but put the
project on hold because it lacked sufficient funding to proceed with it.

In 1988, when Oliver, a local farmer, noticed that the ground was empty, he decided to make use of that part
of the plot closest to his farmland. In the spring of 1989 he began to cut back overgrown bushes before
tethering four goats on the plot during the summer months. Early in 1990 he spread fertiliser over the whole
plot and then planted carrots and potatoes in the corner with the most fertile soil. By the middle of 1995
Oliver had planted the entire plot with vegetables and fruit trees, installed an irrigation system and laid an
area of hard standing for his tractor. He then built a small storage unit for his other equipment. In early 1998
Oliver built a mesh fence around the entire plot to protect the crops from being eaten by rabbits and deer.
Some years later Oliver met Tom, his local councillor, in the pub. During their conversation Oliver explained
that he would ‘willingly pay a token sum’ for the use of the land.

Last month Felpersham Council was successful in obtaining funding to allow it to carry out its development
plans to create a car park. Its solicitors have now written to Oliver asking him to leave the land immediately.

Advise Oliver.

1. Requirements of adverse possession

- Powell v McFarlane (1977): “It will be convenient to begin by restating a few basic principles relating to
the concept of possession under English law:
(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in
possession of the land, as being the person with the prima facie right to possession. The law will thus,
without reluctance, ascribe possession either to the paper owner or to persons who can establish a
title as claiming through the paper owner.
(2) 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 ”).”
- Pye v Graham (2002): “To be pedantic the problem could be avoided by saying 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"). What is crucial is to understand that, without the requisite intention, in law there
can be no possession.”

2. Factual Possession

- Treloar v Nute (1976): “the person claiming by possession must show either (1) discontinuance by the
paper owner followed by possession or (2) dispossession (or as it is sometimes called “ouster”) of the paper
owner.“
- Powell v McFarlane (1977): “Factual possession signifies an appropriate degree of physical control. It must
be a single and conclusive possession, though there can be a single possession exercised by or on behalf of
several persons jointly”
- Pye v Graham (2002): “The question is simply whether the defendant squatter has dispossessed the paper
owner by going into ordinary possession of the land for the requisite period without the consent of the
owner”
- Putting the project on hold can amount to Felpersham Council abandoning the land, as they did not secure
it from entry of intruders

3. Intention to Possess
 Page 2 of 14

- Powell v McFarlane (1977): “the animus possidendi involves the intention … to exclude the world at large,
including the owner with the paper title if he be not himself the possessor, so far as is reasonably
practicable and so far as the processes of the law will allow.”
- Pye v Graham (2002): “the necessary intent is an intent to possess not to own and an intention to exclude
the paper owner only so far as is reasonably possible …”
- All 3 of them were living on the property as their residence – they would have intended to possess it

4. When does the clock begin

a) 1988: make use of the part of the plot closest to his farmland

- Wallis’ Cayton Bay Holiday Camp v Shell-Mex (1974):

- “There must be something in the nature of an ouster of the true owner by the wrongful
possessor”
- “When the true owner of land intends to use it for a particular purpose in the future, but
meanwhile has no immediate use for it, and so leaves it unoccupied, he does not lose his title
to it simply because some other person enters on it and uses it for some temporary purpose,
like stacking materials; or for some seasonal purpose, like growing vegetables. Not even if this
temporary or seasonal purpose continues year after year for 12 years, or more”
- “The reason is not because the user does not amount to actual possession. The line between
acts of user and acts of possession is too fine for words.”
- “By using the land, knowing that it does not belong to him, he impliedly assumes that the
owner will permit it: and the owner, by not turning him off, impliedly gives permission”
- It appears that Oliver is merely using the land, and not actually possessing it
- The clock does not begin

b) 1989: cut back overgrown bushes, tethering 4 goats on the plot during summer months

- Pye v Graham (2002): grazing of animals amounts - factual possession

- Dyer v Terry (2013):
- Mowing the grass – not factual possession
- Cultivating a flower bed – factual possession
- Oliver would have cut back the overgrown bushes so that he could more easily gain access to the
plot
- if so, this can amount to factual possession – Dyer v Terry distinguished
- use of the land by tethering the goats is similar to allowing sheep to graze on land – this can amount
to factual possession
- however, this was done only for a temporary period
- Wallis’ Cayton Bay Holiday Camp v Shell-Mex (1974): “When the true owner of land intends to use
it for a particular purpose in the future, but meanwhile has no immediate use for it, and so leaves it
unoccupied, he does not lose his title to it simply because some other person enters on it and uses
it for some temporary purpose, like stacking materials; or for some seasonal purpose, like growing
vegetables. Not even if this temporary or seasonal purpose continues year after year for 12 years,
or more”
- The clock does not begin

c) 1990: planted carrots and potatoes in the corner

- Dyer v Terry (2013):

- Mowing the grass – no
- Cultivating a flower bed - yes
- Ellett-Brown v Tallishire (1990):
- Planting flowers – no
- “I decline to regard the planting of daffodils in the circumstances of the present case as an act
of possession. The common sense of the matter is that the daffodils were planted to adorn
and beautify the entrance ... The planting of daffodils on a vacant strip of land beside a drive
 Page 3 of 14

cannot be regarded as an unequivocal act of possession, however many daffodils there may
have been”
- The carrots and potatoes planted is presumably for Oliver’s own consumption
- This can amount to factual possession
- An intent to possess is also demonstrated if Oliver would have intended to prevent others from
using the land
- If so, the clock does begin, but only for the part of the land that is used for planting the carrots and
potatoes

d) 1995: planted the entire plot with vegetables and fruit trees, installed an irrigation system, laid an area
of hardstanding, built a storage unit

- Heaney v Kirkby (2015): gardening, hardstanding for parking – yes

- Thorpe v Frank (2019):
- repaving a small area of land – yes
- the lack of a fence did not negate factual possession as the land formed part of an open plan
estate restricting fencing
- Purbrick v Hackney LBC (2004): storage
- All of these acts are substantial, and so amounts to factual possession
- An intent to exclude others from entering the land can clearly be seen at this time
- The clock begins to run for the other parts of the land

e) 1998: built a mesh fence to protect crops from being eaten by rabbits and deer

- Buckinghamshire CC v Moran (1989): locking a gate to exclude everyone, including the paper owner
is an unequivocal act of factual possession and intent to possess
- Basildon DC v Charge (1996): Whilst in some cases the act of deliberate enclosure of land was
unequivocal, here it was not, since the fencing was a short term practicality to contain the geese,
such fencing being abandoned once the geese were removed
- Hounslow LBC v Minchinton (1997):
- hedges and bushes - to contain dogs – sufficient factual possession
- “But their motive is irrelevant. The important thing is that they were intending to allow their
dogs to make full use of what they plainly regarded as their land. They wanted to keep their
dogs within the boundaries of their own land. That was a perfectly understandable usage …
The defendant and his predecessors in title had to keep the council out if they were to keep
their dogs in.”
- Inglewood Investment v Baker (2003): “In this particular case, the purpose of the fence appeared
to be, and Mr Baker said it was, to keep sheep in. It does not seem that he would have put that
fence up if he had been grazing cattle rather than sheep. In those circumstances it was open to the
judge to conclude that there was no intention of Mr Baker to possess the land.”
- The fence must have the effect of being able to keep people out, and Oliver must have intended to
keep people out of the land
- It is questionable whether the mesh fence erected for the purpose of keeping rabbits and deer out
also was intended to keep people out - there may not have been an intent to possess

f) Oliver told Tom he was willing to pay a token sum

- s29(2) Limitation Act 1980: If the person in possession of the land acknowledges the title of the
person to whom the right of action has accrued, the right shall be treated as having accrued on and
not before the date of the acknowledgment
- s30(1) Limitation Act 1980: To be effective for the purposes of section 29 of this Act, an
acknowledgment must be in writing and signed by the person making it
- Lambeth London Borough Council v Bigden (2000): an offer to rent the property
- Oliver did not acknowledge Felpersham Council’s title as he did not put his admission in writing

5. Procedure for registration

 Page 4 of 14

- If factual possession began on/before 12 October 1991, 12 years of factual possession will have ended on
12 October 2003/earlier à LRA 1925 13
- If factual possession began on/after 13 October 1991, 12 years of factual possession will have ended on 12 -

October 2003/later à LRA 2002

a) LRA 1925

- This will apply to the part of the land used for planting carrots and potatoes in 1990
- s15(1) Limitation Act 1980: No action shall be brought by any person to recover any land after the
expiration of twelve years
- s75(1) LRA 1925: The estate shall be deemed to be held by the proprietor on trust for the person
interested in the land (squatter)
- s75(2) LRA 1925: any person claiming to have acquired title under the Limitation Acts to a registered
estate in the land may apply to be registered as proprietor
- Sch 12 Para 18(1) LRA 2002: A person is entitled to be registered as proprietor if he was entitled under
LRA 1925
- Sch 12 Para 18(2) LRA 2002: A person has a defence to any action for the possession of land if he is
entitled to be registered as the proprietor
- EN 322: The Act adopts a double strategy. It preserves the rights of those who are entitled to be
registered under LRA 1925, but it also abolishes the trust in their favour
- EN323: The entitlement under LRA 1925 will be a proprietary right. As such, as long as the squatter is
in actual occupation the priority of his right will be protected
- Williams & Glyns Bank v Boland: actual occupation requires physical presence
- Oliver has been in factual possession since 1990
- His entitlement under LRA 1925 will be preserved – he can be successfully registered as the proprietor

b) LRA 2002

- This will apply to the rest of the land

- s96 LRA 2002: s15 Limitation Act 1980 does not apply
- refer to Schedule 6 LRA 2002:

i. the squatter makes an application

- Para 1(1): the squatter can apply to be registered as proprietor, after having been in adverse
possession for 10 years
- 1995 - 2020: 25 years
- Oliver can submit an application to be registered as proprietor

ii notification of that application is given to the paper owner

- Para 2: the Registrar must give notice of the application to the paper owner
- Land Registry Practice Guide 4: the paper owner has 65 business days to respond to the notice
- The Registrar will notify Felpersham Council Oliver’s application
- They will have 65 business days to respond to the notice

iii. response by the paper owner

a. take no action
b. consent

- His application will be successful – he will be entitled to be registered as the new proprietor
without having to wait a further 2 years
- This is unlikely to happen

iii. serve a counter notice

 Page 5 of 14

- Para 3: the paper owner can require that the application be dealt with under Para 5
- Para 5(1): the applicant is entitled to be registered if any of the following conditions is met:
- Para 5(2): it would be unconscionable because of an equity by estoppel for the registered
proprietor to seek to dispossess the applicant and the circumstances are such that the
applicant ought to be registered as the proprietor
- EN 255: e.g. - Where the applicant/squatter has built on the registered proprietor’s
land in the mistaken belief that he or she was the owner of it and the proprietor has
knowingly acquiesced in his or her mistake. The squatter eventually discovers the true
facts and applies to be registered after ten years
- Para 5(3): the applicant is for some other reason entitled to be registered as the proprietor
- EN 253: e.g. - the full purchase price of the land was paid but the title was never
transferred to the purchaser
- Para 5(4): boundary disputes
(a): the land to which the application relates is adjacent to land belonging to the applicant
(c): for at least ten years of the period of adverse possession ending on the date of the
application, the applicant (or any predecessor in title) reasonably believed that the land to
which the application relates belonged to him
(d): the estate to which the application relates was registered more than one year prior to
the date of the application
- None of the conditions apply
- Oliver’s application will be rejected

d) Oliver may make a second application

- Para 6(1): where a person’s application under Para 1 is rejected, he may make a further application
if he remained in factual possession from the date of the application until the end of 2 years from
the date of the rejection, unless:
- Para 6(2)(a),(b),(c): he is a defendant in proceedings which involve asserting a right to possession
of the land, judgment for possession of the land has been given against him in the last two years, or
he has been evicted from the land pursuant to a judgment for possession
- Para 7: a person who makes an application under Para 6 is entitled to be registered as proprietor
- If Oliver remains in factual possession for 2 years from the date of rejection, he can submit a second
application and be successfully registered as the proprietor
- This is provided Felpersham Council did not take legal proceedings against Oliver to evict him
 Page 6 of 14

2017 Zone A Question 1 (AP)

Fiona owned the freehold title to business premises from which she operated the offices of a small charity
providing counselling for homeless people. The premises are registered land. At the rear of the property there
was an outbuilding. The outbuilding was on the opposite side of the long yard hidden behind a row of tall
trees. The outbuilding was on two storeys. The yard was only used occasionally, mainly by employees of the
charity who wanted to smoke during working hours. Otherwise it was neglected.

Fiona decided to use the outbuilding to provide emergency care for homeless people during the Christmas
period in 2003. Fiona opened a soup kitchen on the ground floor of the outbuilding. On the upper storey, she
provided temporary accommodation for two homeless people. These arrangements were only supposed to
last for one month until 31st January 2004. The homeless occupants were Alan and Colleen. Each of them was
provided with a new bed which was advertised by the manufacturer as being “a temporary bed designed only
to be used for one or two nights at a time”.

On 1st February 2004, Fiona gave permission for Alan to continue to occupy the outbuilding rent-free until the
local authority provided him with permanent accommodation. Fiona expected that this would only take one
or two months. She assumed, mistakenly, that Colleen had left the property because Colleen had been absent
from the premises for two months. Colleen went travelling on occasion for about two months at a time. Alan
spent £100 on fixing an electrical problem on the upper floor of the premises which he occupied and spent
small amounts of money throughout his occupancy maintaining the property in a habitable condition.

On 1st March 2004, Ed broke the padlock on the door to the outbuilding and began to occupy the empty rooms
on the ground floor of the building. Fiona met Ed by accident in the yard on 1st April 2007 and told him that
he would have to leave the premises. Ed refused to leave on the basis that he was homeless. Fiona said that
Ed could remain in the property rent-free for one month if he painted the ground floor of the outbuilding. Ed
agreed. He bought some paint and brushes but never finished painting the property.

All three occupants have remained in occupation, having nowhere else to go.

Advise Fiona (a) as to the claims of Alan, Colleen and Ed to adverse possession, and (b) how your advice would
differ if the land was unregistered.

(a) the claims by Alan, Colleen and Ed

1. Requirements of adverse possession

- Powell v McFarlane (1977): “It will be convenient to begin by restating a few basic principles relating to
the concept of possession under English law:
(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in
possession of the land, as being the person with the prima facie right to possession. The law will thus,
without reluctance, ascribe possession either to the paper owner or to persons who can establish a
title as claiming through the paper owner.
(2) 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 ”).”
- Pye v Graham (2002): “To be pedantic the problem could be avoided by saying 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"). What is crucial is to understand that, without the requisite intention, in law there
can be no possession.”

2. Factual Possession
 Page 7 of 14

- Treloar v Nute (1976): “the person claiming by possession must show either (1) discontinuance by the
paper owner followed by possession or (2) dispossession (or as it is sometimes called “ouster”) of the paper
owner.“
- Powell v McFarlane (1977): “Factual possession signifies an appropriate degree of physical control. It must
be a single and conclusive possession, though there can be a single possession exercised by or on behalf of
several persons jointly”
- Pye v Graham (2002): “The question is simply whether the defendant squatter has dispossessed the paper
owner by going into ordinary possession of the land for the requisite period without the consent of the
owner”
- Fiona did not abandon possession of the outbuilding as she was using it for her charity
- It must be determined whether Alan, Colleen and Ed had dispossessed Fiona from the parts of the
outbuilding they each occupied

a) 1 January 2004: Fiona allowed Alan and Colleen to occupy

- Powell v McFarlane (1977): “time can never run in favour of a person who occupies or uses land by
licence of the owner with the paper title and whose licence has not been duly determined, because
no right of action to recover the land has ever accrued against the owner”
- the clock does not start running for Alan or Colleen as they are occupying the building with
permission

b) 1 February 2004: Fiona gave permission to Alan to continue to occupy rent free

- the clock does not start running in favour of Alan yet due to the permission of Fiona

c) February 2004: Colleen went traveling for 2 months

- Colleen had abandoned the property

- Being a homeless person, it is quite unlikely that she would have left behind any belongings to
establish her possession after Fiona’s permission for her occupation had come to an end
- Time does not start running in favour of Colleen

d) February 2004: Alan spent money to maintain the property

- This expenditure was done while Alan was a licensee – Fiona had given Alan permission to occupy
in February and March 2004
- Therefore, factual possession does not begin with these acts

e) 1 March 2004: Ed broke the padlock

- this is a substantial act of possession, if coupled with his occupation of the property

f) 1 April 2007: Fiona told Ed he must leave

- Mount Carmel Investments v Peter Thurlow (1988): a mere letter demanding that the squatter
vacate the premises will not stop time running
- Markfield Investments v Evans (2001):
- if proceedings were commenced within the 12 year period, any subsequent order in the
owners favour granted after the expiration of the 12 year period was not time barred
- if, however, those proceedings were never progressed to a conclusion, the very fact that a writ
had been issued was irrelevant to any subsequent proceedings and did not stop the clock
- Fiona’s mere demand for Ed to leave does not amount to effective eviction
- It is necessary for Fiona to initiate legal proceedings against Ed
- The clock is not interrupted

g) 1 April 2007: Fiona allowed Ed to stay if he painted the building

 Page 8 of 14

- Fiona’s permission to Ed was a conditional one – as he did not finish painting the property, the
permission is invalid – Ed continues to be a trespasser
- The clock is not interrupted

h) When does time start running in favour of Alan and Colleen?

- The clock starts running in their favour as soon as Fiona’s permission for their occupation expired
- Alan: the clock begins in April 2004
- Colleen: when she returned from traveling, presumably in April 2004
- It is unlikely that they have established joint possession, as there is no indication of a relationship
between them
- The part of the building they occupy are presumably separate

3. Intention to Possess

- Powell v McFarlane (1977): “the animus possidendi involves the intention … to exclude the world at large,
including the owner with the paper title if he be not himself the possessor, so far as is reasonably
practicable and so far as the processes of the law will allow.”
- Pye v Graham (2002): “the necessary intent is an intent to possess not to own and an intention to exclude
the paper owner only so far as is reasonably possible …”
- All 3 of them were living on the property as their residence – they would have intended to possess it

4. Procedure for registration

- 12 years of possession for all 3 of them would end in 2016 – therefore, LRA 2002 will apply
- s96 LRA 2002: s15 Limitation Act 1980 does not apply

a) the squatter makes an application

- Para 1(1): the squatter can apply to be registered as proprietor, after having been in adverse
possession for 10 years
- They may apply to be registered as proprietor of the outbuilding as they have been in factual
possession for more than 10 years (2004 – 2017)

b) notification of that application is given to the paper owner

- Para 2: the Registrar must give notice of the application to the paper owner
- Land Registry Practice Guide 4: the paper owner has 65 business days to respond to the notice
- The Registrar will notify Fiona of the applications – she has 65 business days to respond

c) response by the paper owner

i. take no action
ii. consent

- The squatter’s application will be successful – he will be entitled to be registered as the new
proprietor (without having to wait a further 2 years)
- This is unlikely to happen

iii. serve a counter notice

- Para 3: the paper owner can require that the application be dealt with under Para 5
- Para 5(1): the applicant is entitled to be registered if any of the following conditions is met:
- Para 5(2): it would be unconscionable because of an equity by estoppel for the registered
proprietor to seek to dispossess the applicant and the circumstances are such that the
applicant ought to be registered as the proprietor
 Page 9 of 14

- EN 255: e.g. - Where the applicant/squatter has built on the registered proprietor’s
land in the mistaken belief that he or she was the owner of it and the proprietor has
knowingly acquiesced in his or her mistake. The squatter eventually discovers the true
facts and applies to be registered after ten years
- Para 5(3): the applicant is for some other reason entitled to be registered as the proprietor
- EN 253: e.g. - the full purchase price of the land was paid but the title was never
transferred to the purchaser
- Para 5(4): boundary disputes
(a): the land to which the application relates is adjacent to land belonging to the applicant
(c): for at least ten years of the period of adverse possession ending on the date of the
application, the applicant (or any predecessor in title) reasonably believed that the land to
which the application relates belonged to him
(d): the estate to which the application relates was registered more than one year prior to
the date of the application
- None of the conditions apply
- Alan, Colleen and Ed’s applications will be rejected

d) Alan, Colleen and Ed may make a second application

- Para 6(1): where a person’s application under Para 1 is rejected, he may make a further application
if he remained in factual possession from the date of the application until the end of 2 years from
the date of the rejection, unless:
- Para 6(2)(a),(b),(c): he is a defendant in proceedings which involve asserting a right to possession
of the land, judgment for possession of the land has been given against him in the last two years, or
he has been evicted from the land pursuant to a judgment for possession
- Para 7: a person who makes an application under Para 6 is entitled to be registered as proprietor
- They may make a second application in 2019 (2 years after the rejection, provided they remain in
factual possession)
- If Fiona does not take formal steps to evict them within 2 years of the date of rejection of their initial
application, their second applications will be successful

(b) unregistered land

- 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.
- s17 Limitation Act 1980: at the expiration of the limitation period, the title of that person to the land shall
be extinguished
- Fairweather v St Marylebone Property (1963): “It is necessary to start … by recalling the principle that
defines a squatter’s rights. He is not at any stage of his possession a successor in title of the man he has
dispossessed. He comes in always by right of possession, which in due course becomes incapable of
disturbances as time exhausts the one or more periods allowed by statute for successful intervention. His
title, therefore, is never derived through but arises always in spite of the dispossessed owner”
- All 3 them will have successfully acquired the land by adverse possession as they have been in possession
for more than 12 years
- Fiona is now time barred from recovering the land
- Fiona’s title is extinguished
 Page 10 of 14

2018 Zone A Question 8 (adverse possession)

‘The law on adverse possession was supposedly limited by the Land Registration Act 2002. The current
situation, however, allows a person in occupation of another’s land without permission to acquire greater
rights than was permitted before 2002. This is undesirable and adverse possession should be entirely removed
from English land law.’

Discuss.

1. INTRODUCTION

- The statement in the question makes 3 suggestions:

- that adverse possession is supposed to have been limited by the LRA 2002
- however, the LRA 2002 has given even greater rights to squatters
- adverse possession should be abolished entirely
- This essay will:
- compare the provisions of the LRA 1925 and LRA 2002 to demonstrate that it is correct that the
number of successful adverse possession cases has been limited by the LRA 2002
- submit that squatters are not given greater rights under LRA 2002
- although adverse possession is not entirely without merit, it should have been abolished entirely

2. LRA 1925

- this applies where 12 years of factual possession ends before 13 October 2003
- 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.
- s75(1) LRA 1925: The estate shall be deemed to be held by the proprietor on trust for the person interested
in the land (squatter)
- s75(2) LRA 1925: any person claiming to have acquired title under the Limitation Acts to a registered estate
in the land may apply to be registered as proprietor
- Sch 12 Para 18(1) LRA 2002: Where a registered estate in land is held in trust for a person by virtue of
section 75(1) of the Land Registration Act 1925 immediately before the coming into force of section 97, he
is entitled to be registered as the proprietor of the estate.
- Sch 12 Para 18(2) LRA 2002: A person has a defence to any action for the possession of land if he is entitled
to be registered as the proprietor
- EN 322: The Act adopts a double strategy. It preserves the rights of those who are entitled to be registered
under LRA 1925, but it also abolishes the trust in their favour
- EN323: The entitlement under LRA 1925 will be a proprietary right. As such, as long as the squatter is in
actual occupation the priority of his right will be protected
- Prior to 13 October 2003 (the coming into effect of LRA 2002), a squatter who successfully clocks 12 years
of factual possession will always be successful
- This is so even if the squatter has abandoned possession of the land, as the paper owner holds the land on
trust for the squatter
- If the squatter applies to be the registered proprietor on / after 13 October 2003, he will still be successful,
provided he remains in actual occupation until the date of application
- This means that there is an opportunity for the paper owner to recover the land, even after being
dispossessed for 12 years, i.e. if the squatter abandons possession after having clocked 12 years

3. LRA 2002

a) the squatter makes an application

- Para 1(1): the squatter may apply to the Registrar to be registered as proprietor after 10 years
- If the squatter does not submit an application, the paper owner will never be time barred in recovering
the land
 Page 11 of 14

b) notification of that application is given to the paper owner

- Para 2: the Registrar must give notice of the application to the paper owner
- Land Registry Practice Guide 4: the paper owner has 65 business days to respond to the notice
- Given the opportunity of not losing his land, it is hard to foresee any situation where the paper owner
would not take advantage of the opportunity to respond and fail in a timely manner to the squatter’s
application
- In theory, the provision demonstrates how the LRA 2002 does effectively reduce the number of successful
cases
- However, there will be situations where the paper owners do not receive the notice sent by the registrar
under Para 2 as (i) the paper owner may not always inform the Land Office of their current address ; and
(ii) the notice may have been sent to the very address which the squatter occupies
- It is practical problems like this which causes one to think that squatter have acquired greater rights under
LRA 2002, since a squatter can be successful after squatting for only 10 years, instead of 12 years as
previously required
- It is clear that one of the aims of the LRA 2002 is to reduce the number of successful adverse possession
claims
- Therefore, if that goal has failed to be achieved, there will have been a number of reports to specify so
- The LRA 2002 has stood the test of time – if this problem occurs frequently, there will have been an
increased number of squatters being successful. There is simply no report to support this

c) response by the paper owner

i. take no action
ii. consent

- The squatter’s application will be successful – he will be entitled to be registered as the new
proprietor (without having to wait a further 2 years)
- However, this is unlikely to happen

iii. object

- S73(5)(b) LRA 2002: the application is not determined until the objection is disposed of

iv. serve a counter notice

- Para 3: the paper owner can require that the application be dealt with under Para 5
- The squatter’s application will be rejected
- Para 5(1): the applicant is entitled to be registered if any of the following conditions is met:
- Para 5(2): it would be unconscionable because of an equity by estoppel for the registered proprietor
to seek to dispossess the applicant and the circumstances are such that the applicant ought to be
registered as the proprietor
- EN 255: e.g. - Where the applicant/squatter has built on the registered proprietor’s land in the
mistaken belief that he or she was the owner of it and the proprietor has knowingly acquiesced
in his or her mistake. The squatter eventually discovers the true facts and applies to be
registered after ten years
- Para 5(3): the applicant is for some other reason entitled to be registered as the proprietor
- EN 253: e.g. - the full purchase price of the land was paid but the title was never transferred
to the purchaser
- Para 5(4): boundary disputes
(a): the land to which the application relates is adjacent to land belonging to the applicant
(c): for at least ten years of the period of adverse possession ending on the date of the application,
the applicant (or any predecessor in title) reasonably believed that the land to which the application
relates belonged to him
(d): the estate to which the application relates was registered more than one year prior to the date
of the application
 Page 12 of 14

- Zarb v Parry (2011): D (squatter) was under a reasonable belief as the dispute between their
predecessor (previous squatter) was dormant
- IAM Group v Chowdrey (2012):
- “the issue is not the knowledge of a reasonably competent solicitor acting for [D] ... We
are not here concerned with knowledge in the context, which frequently arises, of
imputing an agent's knowledge to the principal. We are here concerned with the
requirement as to the reasonable belief of a particular person. In this case, it is [D], but
generally it is the person who is seeking to apply for registration of title by virtue of
adverse possession.”
- “What is in issue therefore is not imputed knowledge but rather whether that particular
person—here [D]—was reasonable in holding the belief that he or she did in all the
circumstances. That can involve a question as to whether the respondent should have
made enquiries of his solicitors”
- “the mere fact that a paper title owner challenges the asserted ownership of land by the
adverse possessor is not in every case sufficient to render unreasonable any continuing
belief of ownership on the part of adverse possessor”
- If the squatter is successful in claiming any of the conditions: he is registered as the new proprietor
- The exceptions in Para 5 is what supports the notion that squatter have acquired greater rights
under LRA 2002, since the squatter is required to be in possession for only 10 years, instead of 12
years as previously required

d) if the squatter’s application was rejected

- Para 6(1): where a person’s application under Para 1 is rejected, he may make a further application if he
remained in factual possession from the date of the application until the end of 2 years from the date of
the rejection
- Exception à Para 6(2)(a)-(c): he is a defendant in proceedings which involve asserting a right to
possession of the land, judgment for possession of the land has been given against him in the last two
years, or he has been evicted from the land pursuant to a judgment for possession
- Para 7: the squatter will be successfully registered as the proprietor
- The LRA 2002 in theory does make a claim for adverse possession very rare
- The paper owner will always have the opportunity to evict the squatter within 2 years of being informed
of the squatter’s application to be registered as the new proprietor
- Given the opportunity of not losing his land, it is hard to foresee any situation where the paper owner
would not take advantage of the 2 year period
- Although there are exceptions in which the paper owner is not allowed the 2 year period to evict the
squatter upon the squatter’s application, it is very rare for any squatter to be able to rely on the
exceptions, as evidenced by the lack of reports to suggest so
- The rarity of Para 5 applying proves that the LRA 2002 has been successful, when it comes to adverse
possession
- It can be suggested that the LRA 2002 has been successful, since its goal was to reduce, not extinguish,
claims by squatters
- However, it is submitted that it is better if the LRA 2002 had abolished the concept of adverse possession
altogether

4. THE LRA 2002 SHOULD HAVE ABOLISHED ADVERSE POSSESSION ENTIRELY

- The UK Parliament had the opportunity to abolish adverse possession entirely under the LRA 2002, but
refrained from doing so. This, coupled with the fact that many other jurisdictions recognise squatter rights,
proves that there is some merit to adverse possession

a) merits

- The most compelling argument in support of adverse possession must be that land is a very valuable
asset, and should go to the person making good use of it.
- Martin Dockray (1985): “it is arguable that it is in the public interest to promote the full use of neglected
natural resources and that it is desirable that a fixed time limit should exist to encourage the
 Page 13 of 14

improvement and development of land which might otherwise lie abandoned or under exploited for
many years. For example, someone may have abandoned land many years ago and someone else may
have started to use the land – possibly for limited purposes at first – and eventually taken possession of
it … if the occupant is perpetually barred from dealing with the land as owner, there is a danger that
property will not be utilised to best advantage. This seems highly undesirable
- The law should protect people from defending stale claims by landowners
- It is not human rights incompatible
- Article 1 of Protocol 1 of the European Convention on Human Rights: peaceful enjoyment of land
- Pye v UK (2008):
- the Court recognises that the State enjoys a wide margin of appreciation, with regard both
to choosing the means of enforcement and to ascertaining whether the consequences of
enforcement are justified in the general interest for the purpose of achieving the object of
the law in question
- that the rules contained in both the 1925 and the 1980 Acts had been in force for many years
before - it is not open to the applicant companies to say that they were not aware of the
legislation, or that its application to the facts of the present case came as a surprise to them
- the limitation period was relatively long
- the applicant companies were not without procedural protection. While the limitation period
was running, and if they failed to agree terms with the Grahams which put an end to the
“adverse possession”, it was open to them to remedy the position by bringing a court action
for repossession
- a requirement of compensation for the situation brought about by a party failing to observe
a limitation period would sit uneasily alongside the very concept of limitation periods, whose
aim is to further legal certainty by preventing a party from pursuing an action after a certain
date

b) criticisms

- Pye v UK (2008): dissenting judgment –

- The argument was put forward that another possible legitimate aim of such an institution would
be to encourage landowners to exploit, improve, or make use of their land. This is not acceptable,
“first of all because such encouragement may be achieved by other less onerous means such as
taxation, or the creation of incentives, and secondly, that the general interest connected with that
aim can reasonably extend to depriving a registered landowner of his beneficial title to the land
except by a proper process of compulsory acquisition for fair compensation.”
- “an unsatisfactory system in certain countries does not justify retaining such a system elsewhere”
- “the majority invoked the fact that the amendments to the system of adverse possession contained
in the Land Registration Act 2002 did not abolish the relevant provisions. However no clear grounds
were given for such a decision, and more particularly for the necessity of maintaining the present
system of adverse possession.”
- “the majority argued that it must be open to the legislature to attach more weight to lengthy,
unchallenged possession than to the formal fact of registration. Again I do not understand the logic
of this approach and I certainly do not find it convincing. I do not see how illegal possession can
prevail over legitimate ownership.”
- “such a system: (a) shows disrespect for the legitimate rights and expectations of the registered
property owners which include the possibility of keeping their property unused for development
at a more appropriate time, when financially and otherwise they are ready to proceed with such
development, or to maintain their property as security for their children or grandchildren; and (b)
encourages illegal possession of property and the growth of squatting.”
- “In any event, even assuming that there was a public interest to be served by the deprivation of
ownership through adverse possession, the conditions for the implementation of such deprivation
(limitation period of only 12 years, loss of title, lack of any compensation) render the measure
completely disproportionate.”
- “this system of adverse possession looks as if it is intended to punish a registered lawful owner of
land for not showing sufficient interest in his property and for not sufficiently pursuing a squatter,
who as a result is rewarded by gaining title to the property”
 Page 14 of 14

5. CONCLUSION

it is submitted that the minority decision of the Grand Chamber in Pye v UK is far more compelling. It is reiterated
that adverse possession should have been abolished