TUTOR FEEDBACK ACTIVITY – PROPERTY LAW

ANSWER AND FEEDBACK

Indicative Mark: First

Student Answer
Bert (B) should be advised on
(1) whether he was in adverse possession of the wasteland (“the Land”); and
(2) the effects of the Land Registration Acts 1925 and 2002 (“LRA 1925 & 2002”) on his
position as an adverse possessor
For B to establish adverse possession of the Land, 2 elements must be established on his part
(Pye v Graham (HL) (2002)):-
(a) factual possession (exercising some degree of physical control over the land as an
occupying owner would have done); and
(b) an intention to possess (to the exclusion of the world)
Although the Land has been acquired/ retained by AH for a specific future purpose (building homes
once AH has obtained sufficient capital and the necessary planning permission), AH can still be
dispossessed by B whose acts may not even be considered inconsistent with that purpose:
Buckinghamshire County Council v Moran (1990).
1989 Autumn
From what B told C, B’s knowledge of AH’s title and future plans for the Land, will not prevent AH
from being dispossessed by B, because what is required of B is not an intention to own but an
intention to possess: Pye v Graham (HL) (2002).
However even if B’s declared intention to turn the Land into a garden during AH’s inaction counts
as an intention to possess, such intention must be accompanied by acts of exclusion of AH (acts/
dealings with the Land by B as an occupying owner might have been expected to deal with it and
no one else has done so, per Slade J in Powell v McFarlane (1979).
Without any accompanying acts of factual possession, B’s declaration of intention, however clear,
will not alone amount to possession: Simpson v Fergus (2000).
1990 Spring
B’s removing the stones and his ploughing and fertilizing the ground cannot found factual
possession if AH cannot clearly appreciate from these acts that B is not merely a persistent
trespasser but is actually seeking to dispossess AH: Powell v McFarlane (1979) although AH
does not need to know or even be inconvenienced by B’s acts for adverse possession to arise in
B’s favour: Treloar v Nute (1976).
The nature of the land and the manner in which land of that nature is commonly used are relevant
to proving possession.

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In Battersea Freehold & Leasehold v Wandsworth LBC (2002) also involving disused land, a
bombed out pub site was secured with keys, and it was held the occupier did not intend exclusive
possession for himself when he gave others keys to the site.
For an open piece of wasteland here, enclosure is strongest evidence of adverse possession:
Seddon v Smith (1877) although Thorpe v Frank (2019) show this not to be always necessary.
Merely laying cement on a parking ground sufficed in Thorpe.
B’s leaving the Land idle for a year to increase fertility before starting to plant vegetables and
flowers may not interrupt B’s possession IF looked at together with his subsequent timely erection
of wooden gate and fence and keeping of chickens on the Land in mid 1990s (see below) as a
whole all going towards proving factual possession with the necessary intention to possess on his
part.
Mid 1990s
B’s erecting wooden gate and fence around the plot may not found possession IF they are not
accompanied with the necessary intention to possess: Batt v Adams (2001) unless he can draw
analogy with the cow grazing and timber storing (factual possession) in Treloar v Nute (1976).
Hounslow v Minchinton (1997) says what is important is the effect of the act and not the motive
behind it, so that if people are effectively prevented from entering the Land, then this will be
enough.
2001
Matt (M)’s written authorization to B to continue with his gardening on the Land without charge
arguably turns B’s adverse possession into a ‘permissive’ one, stopping the limitation clock.
There is no presumption of a licence in B’s favour as in Leigh v Jack (1879) and Shell-Mex (1971)
where his possession may not be inconsistent with AH’s planned use of the land because
(a) BCC v Moran (1990) makes it clear there is no longer any such presumption; and
(b) there is an express licence (M’s writing being unequivocal), or an implied one (B likely
knows AH’s future plans as we are told AH is a building developer known to be regularly
acquiring land around UK) and B’s agreement, evidenced in his continually acting
consistently with the ‘licence’ terms.
However in Williams v Jones (CA) (2002) a tenant of a periodic tenancy did not have to prove an
intention to possess to claim adverse possession, only factual possession, after the tenancy had
ended and the tenant had ceased paying rent.
If B can show the same reasoning should apply in his favour as there is no real distinction between
him who (he may say) would have agreed to pay for his use of Land had he been asked to do so,
and if his continued occupation and maintenance of the Land after M’s writing are considered
sufficient acts of ‘factual possession’, then time continues to run for him.
Last month
While a mere email from the owner asking the adverse possessor to leave does not stop time from
running for the latter (BCC v Moran (1990); Mount Carmel Investments v Peter Thurlow), this is
only relevant if time has continued to run in B’s favour despite M’s letter in 2001.
12 years made before 13.10.2003
Time starts running as soon as factual possession and animus possidendi coincide, the earliest
time of which would arguably be 1990 Spring.

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If so, B will have established 12 years adverse possession before 13.10.2003, ie. successful
adverse possession under the LRA 1925. The 12 year period requirement is laid down in s15(1)
Limitation Act (“LA”) 1980.
S75 LRA 1925 creates a trust over the Land in B’s favour which must be registered under Sch 12
para.18 LRA 2002.
As B failed to do before 13.10.2006 when the transitional provisions in LRA 1925 expired, his
accrued rights become unprotected unless he is in actual occupation (likely, otherwise why would
AH send him an eviction email).
If so B has an overriding interest (under Sch 1 or 3 LRA 2002) and can enforce his accrued rights
including applying for registration as proprietor under LRA 2002.
AH’s title is not extinguished and B’s ‘actual occupation’ rights will override only to the extent that
they coincide with that occupation.
No 12 years before 13.10.2003
If B did not make 12 years before 13.10.2003, there will be no application of s75 LRA 1925 and the
new law found in s96 and Schedule 6 LRA 2002 will become applicable. The limitation period
under the LA 1980 does not apply: s96.
AH cannot lose their Land merely because B has adversely possessed it for 12 years.
Here the latest time of factual possession and animus possidendi coinciding would arguably be
mid 1990s.
If the clock stops with M’s writing in 2001, B would still have established 10 years of adverse
possession by 2000. However he failed to apply to become the registered proprietor under LRA
2002, and M’s subsequent communications interrupted B’s adverse possession. Without the
necessary 10 years of uninterrupted adverse possession, B cannot now begin proceedings.
If the clock does not stop, and B in actual occupation, he should apply forthwith to be registered as
proprietor of the Land given he has made the 10 years, and AH’s intention to evict him.
After applying, land office will send AH a notification of B’s application.
Even if B’s application is opposed and rejected, B can remain in adverse possession for a further 2
years and make a further application to be registered.
If AH fails to object and evict B within the further 2 year period under LRA 2002, ownership of the
Land will be changed in B’s favour.
In defence of AH’s eviction proceeding within the 2 year period, B can invoke the ‘catch-all’
exception (as Prof Martin Dixon puts it) in para 5(3) of Sch 6 because it allows him to be registered
as proprietor in an open-end category of situations which the courts can expand whenever they
see fit.
A para 5(2) estoppel argument may fail without clear unconscionability on AH’s part. Although AH
know B has been working the Land since 2001, from outset they have made it clear to B that his
continued occupation on the Land would only be permissive, and B agreed (by continuing to act
strictly within that permission).
If B’s application is successful, he will not get a new title (as in unregistered land) but in effect
obtains a statutory assignment of the existing registered title that is subject to all existing priorities
other than any registered charge.

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If B decides against applying, then no matter how long he stays on the Land, he cannot have any
impact on AH’s registered title, unlike with unregistered land. He will have no defence to any
separate eviction proceeding to be brought by AH.

Examiner Feedback
Student Mark: 72
Strengths
Well structured, clearly applied to the facts and good use of supporting case law.

Areas for improvement

Look at the BP v Buckler point to add to your arguments

Other comments
Good clear start with supporting case law.
You deal with each of the factual events well, with good use of cases to support your argument
In 2001 I would expect some mention of BP v Buckler on the issue of the unanswered letter but
you do make good points on this issue.
Generally a well stated and clearly argued response.

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