Adverse Possession

 Adverse possession is obtaining ownership rights informally - 'squatting'

 Based upon the notion that title/ownership to land may follow from being in possession of land
(for a long period of time)
 Since LRA 2002 it has been much more difficult for a claim to ownership by adverse possession
to succeed in respect of land the title to which is registered - objective is to make the land register
a reliable record of ownership/title to land
 .
 If Ian has bought the land since 1990 when he bought the land we would have had to register his
title (if you acquire land you must register the ownership (1990).
 Bought land entered contract originally exchanged the contract and the seller would have
executed the deed in Ian's favour - if he bought this prior to 1990 in order to prove the seller has
title lawyer would have looked at the deed that transferred title to the seller - you can go back in
time and trace ownership of land - that is why that people refer to deeds of their house which
proofs you have title to land
 To first register the land - those deeds would have been presented to the register to prove the land
was transferred by deed and previous owner had legal title.
 OTHER WAY - Ian could have done this by taking possession of land for a period of time
 If someone wishes to occupy land or obtain land we have to show three specific requirements in
order to prove adverse possession
o Only if you can prove adverse possession then you can claim the land
 Can you get land without deed - yes through adverse possession
 Rule - show adverse possession - factual possession of the land, intention to
possess it and the possession must be adverse
 TIP - you have to do IRAC on each factual possession, intention to possess it and
possession must be adverse. You have to show factual possession, you have to
show intention to possess it (animus possidendi), and then you have to prove
possession must be adverse
 When you have all three you have a claim then to adverse possession

Factual possession (FIRST ELEMENT)

 Legal owner is disposed of the land - you have dispossessed and you have taken the land
 A legal owner could abandon the land - they discontinue or dispossession of the land
 Factual possession starts when - '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'; (Lord Browne-Wilkinson in Pye at [36]
o Starting point dispossession or discontinuation : LA 1980, Sched 1, paras 1 & 8
 Rains v Buxton Fry LJ: Bucks CC v Moran (1990), Nourse LJ - a fine
distinction: Pye v Graham [2002] UKHL 30
o Moving in followed by continuous exclusive possession - successive squatters?
 If Ian died he could pass on such time he has been in adverse possession of café
by will: Asher v Whitlock (1865)
 Ian and Jane may jointly have exclusive possession
o For requisite limitation period - (normally) 12 Years: LA 1980, s.15
What counts as doing things an owner might do:
 SLADE J Powell v Macfarlane (1979) - 'factual possession signifies an appropriate degree of
physical control' - "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 controlled… 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"
  It is a degree of physical control - someone is using the land as you would expect a owner of that
sort of land to possess it - and no one else has done so

Pye and Graham (2002) - What happened here - Pye is a company and it bought some land in
Oxfordshire and it had the intention of keeping the land and eventually developing it and selling it off.
They got planning consent on it etc. the land when it was purchased rented by a farmer family named the
Grahams. Land was purchased by Pye and Graham had a lease. Lease came to an end - when it came to
an end graham went to the company can we please renew the lease - answer to that was No - Pye said
because we have the intention of developing the land. Graham continued to use the land as he had been
before. No one had thrown him off. Graham maintained the fence around the field, there was a gate and
he locked it so people didn’t steal the cows. Graham is using the farmland the way you would expect a
farmer to use it. He could show that he was using the land in a way that a owner of that specific land
would use it

Garden/House - Moran (1990), Hounslow v Minchinton (1997)

Inaccessible marshland - Red House Farms v Catchpole (1977)
Wall - Prudential Assurance v Waterloo (1999) - who was maintaining the wall
Riverbed - Port of London Authority v Ashmore (2009)
Grass Verge: Heany v Kirkby [2015]

Claimant's use of the land may be too insubstantial or equivocal or too trivial
 Powell v Macfarlane (1979)
 Boosey v Davis (1987)
 Techbild v Chamberlain (1969)
 Central Midland Estates v Leicester Dyers (2003)
But enough is more than enough
 Purbrick v Hackney BC (2003), Neuberger J STATED that you have to show you are using land
that you would expect an owner of that land to use it

First thing what type of land are we using it, would the person of the land use it like this then yes they
would or if what are you doing is so trivial

Intention (SECOND ELEMENT)

 Intention to exclude world at large including owner of legal title so far as the requirements of law
allow or permit
 How would you exclude people of land - build a fence around land - would that fence indicate
factual possession and intention to possess land - yes it would because you are showing intention
to protect land - it shows you are excluding everyone from the land
 Ian's factual possession needs to coexist with an intention to possess
 Intention to exclude 'world at large… so far as is reasonably practicable and so far as the
processes of law will allow' per Slade J, Powell (1979) ; approved in Pye v Graham [2002]
UKHL 30 [46]
 Intention to possess for the present does not need to be intention to acquire permanent ownership:
Bucks cc v Moran (1990); Pye v Graham
AGAIN TIP you have to deal with the separate requirements using IRAC - sometimes one piece of
information can satisfy two of the three requirements (factual possession and intention to possess) but you
need to deal with them separately

Boosey v Davis (1987)

 Put a fence around land to keep geese in
 There was a question over factual possession but also intention
 It also came up intention to possess
 Did you put the fence up - to do so is to exclude the world at large - and the court in that case said
it doesn’t help with intention because you put the fence up to keep the geese in not to keep
everyone else out
 The intention was to keep your geese in
 FENCING while it may show intention to possess it might also show the opposite - because you
are not showing an intention to keep people out
 Hounslow v Minchinton (1997) - if you put a fence up it is to keep people out
o You have to see what is going on - even if you put a fence up to keep your sheep out the
effect is to keep everyone out
o We have to show we are keeping people out and even the owner of the legal title

Proving intention (SECOND ELEMENT)

 Evidence of making use of it for oneself
 Knowing there is a 'true owner' is irrelevant
 It may be proved by inference from the acts of factual possession: Neuberger J in Purbrick v
Hackney
o Fencing/locking gates: Seddon v Smith (1877); Moran (1990)
o Relevance of motive for fencing: Batt v Adams (2001)
 Hounslow v Minchinton (1997); Inglewood v Baker (2002)
 Objective (with subjective component) Bolton MBC v Qasmi 1990
 Has to be exclusive
o If you take possession of land - and people come on - then the people can only come on if
I want them to - or if I open it up and I am growing a garden then I have not taken
exclusive possession

Is Possession adverse? (THIRD ELEMENT)

 Possession must also be adverse
 It is that you are not on the land with permission of the legal title holder
 In the case of buckler - Moment land owner said no to the lease - then there was no permission
and the possession became adverse
 Its not that someone doesn’t mind you being there it is that you do not have written permission to
be there
 Even if the landowner writes to you and says this is my land get off my land provided that you rip
that piece of paper or you do not acknowledge that the land belongs to a third party your
possession remains adverse
 Ian cannot make good a claim where he is on the land with permission
o Licenses/leases
o Even a unilateral license granted by the owner may mean possession is no longer adverse:
BP properties v Buckler (1987)
o Is that right? Would it be different if the offer of a license is rejected?
o And consider Colchester BC v Smith (1992)
  Problems with implied license - there was a time when the courts would look at the land owner
not minding at you being on their land - (dealt with Pye v Graham we are looking at the mind of
the possessor/the claimant - squatter) - from that point of view we are looking at what the squatter
would do
 Lord Browne-Wilkinson in Pye (2002) saw this as 'heretical and wrong' [45]
o So Lord Browne-Wilkinson point of view he said that what the legal title owner thinks
and what they intend is irrelevant and the fact they intend to do something at a later stage
- doesn’t effect anything it is heretical and wrong we are only looking at the mind of the
possessor the squatter
o Looking at adverse possession for the required period of time

If I have adverse possession for a long time and then I have a lease which is a right to be on the land is
that adverse possession
 Yes it ends it
 Because the possession of your land is not adverse

Recap
 Ian needs to show for a claim for adverse possession
 Ian needs to show that he has the basis of a claim to be in adverse possession has he
 Taken sufficient factual possession of the café
 With the required degree of intention to possess it
 His possession is adverse
 Uninterrupted adverse possession throughout entire limitation period - usually 12 years
 Finding a starting point for the clock to run is important and adverse possession must
continue throughout: Powell v Macfarlane (1977)
 The effect of satisfying these requirements is different depending upon when the 12 years
has elapsed and whether title to café is
 Unregistered
 Registered - and the LRA 1925 applies
 Registered - and the LRA 2002 applies

If you have been on the period of land for a requisite period of time the landlord may be stopped for an
eviction order - in which case they cant get you off the land
 Three different regimes

Each scenario has a different regime

 Unregistered land - Land in which it is not registered

o Provided that you are in adverse possession of unregistered land at anytime from 1926 to
including to today for a minimum period continuedly of 12 years than your claim comes
under the purposes of the limitation act 1980 (section 15 of the limitation act 1980 says
that after a period of 12 years the legal title holder is prohibited of bringing an action to
evict you from the land, section 17 says that of that point legal title is extinguished land
becomes title less, the person with the greater claim to the land is the one who is going to
get it, and if you are in possession of the land the squatter than you will get it.
o If you were the squatter you could apply for land to be registered for the first time - and
you would be the legal owner (if you are in possession for 12 years)
o Once ian can show 12 years of adverse possession Mick would not be able to recover title
to unregistered land: La 1980 section 15 (crown land 30 years; foreshore 60 years)
  Micks title to Ian's place is extinguished: LA 1980 section 17
 Should it matter if Ian then acknowledges marks title
 Colchester BC v Smith (1992)
 Ian's title arises from his possession. He does not get a statutory conveyance of
Micks pre-existing title (so unregister land recognised that at any one time more
than one person may claim an restate in respect of the café)
 But as ian is not a 'purchaser/transferee' his title to the café is subject to pre-
existing property rights (e.g. easement) Re Nisbet Potts Contract 1905
 Ian can then apply for registration of title (Under LRA 2002)
 Registered land - and the LRA 1925 applies since 1926 we have had a big book of land - it hasn’t
been compulsory to register land since 1926 until 1990 if you acquired land after 1990 you were
required than to register the land before that It was purely voluntary so in 1950 it may be that if
you bought a house it was not registered land you purchased the land and you get a deed you still
have unregistered land at the point you could have registered the land but if you didn’t want to go
through the hassle than you didn’t have to -
o Section 15 LA 1980 applies (12 years)
o If you are in possession for registered land you have to show 12 years of adverse
possession so the owner of the legal title was time barred from bring an action to having
you evicted
o HOWEVER section 17 of LA was disapplied so it was not that legal title is extinguished
o Section 75 at that point registered title continues but at that point registered title owner
held the land on trust for you. They have the legal title but in good consicne the land was
yours. All you have to do is transfer the registered title to you.
o Unregistered land 12 years unregistered land provided you got 12 years they couldn't
bring an action to get you off but land was continue to be registered they held Land on
trust for you by virtue of section 17
 Registered land - LRA 2002 applies - when LRA 2002 came into affect it changed things - 2002
act you cannot obtain legal title to land without registering it - you can have as many deeds as you
like but you only get legal title when its registered.
o LRA 2002 effects only registered land
o This piece of legislation came effect 13 of October 2003 - effect - is to say if you are in
adverse possession of land and you haven't completed 12 years of adverse possession of
registered land the old law is knackered and gone
o Dealing with registered land you are squatter you took adverse possession of registered
land on 11 October 1991 - do you get the land or not - YES - because old legislation is
enforced. If your adverse possession started on 14 October 1991 your 12 years has not
been completed by 13 October 2003 - because of that the old regime does not apply we
have to apply the new one. Likelihood is you probably wont get the land
o You have been in adverse possession for registered land and you had completed 12 years
prior to October 13 2003 the land at point was held on trust for you section 96 of the new
act disapplies the land registration act 1925 so the land is no longer held on trust for you
HOWEVER schedule 12 paragraph 18 of the new act says that if you are in that situation
automatically you are now entitled to be registered
o September 1991 - 12 years has been completed prior to October 2003 - as of that point
land was held on trust of you by virtue section 75 of LRA 1925 - month later new
legislation comes into effect section 76 disapplies that arrangement but schedule 12
paragraph 18 says you're still entitled to be registered. What if it is 2023 can you still
apply to be registered - YES you will still be registered as the legal title holder
 The 12 year limitation period in LA 1980 'disapplied; where the land is registered: LRA 2002, s
96 - so technically limitation of actions no longer applicable
 o So even if Ian is in adverse possession for say 40 years he cannot acquire ownership
rights by that alone
 After 10 years of being in adverse possession of the café, Ian can apply to the land registry to
become registered as owner: Sched 6. para 1
 SO LRA replaces claim to acquire ownership through 12 years of adverse possession with a right
for a person to apply to become new registered owner of café after 10 years of adverse possession

SKETCH OF PROCESS UNDER LRA 2002
Ian applies with proof of at least 10 years of adverse possession of café

Land registry gives notice to Mark (registered owner) who has right to object in
three months (65 business days): Sched 6, paras 3 and 5

What if Mick fails to object in time - Sched 6, para 4

What if Mick objects but fails to evict Ian in the next two years - Sched, 6 paras 6
and 7

If Ian seeks in becoming registered this amounts to a statutory conveyance

LRA 2002: adverse possessor succeeds even where owner objects

 Even if the registered title owner objects sometimes it will be ignored
Even if Mick Objects Ian may still 'win' if and of the three conditions (situations) contained in sched 6
para 5 apply:
 Ian can claim the land by proprietary estoppel (prof said he does not know how this will work -
because when you get proprietary estoppel the third requirement is that you have NOT had
permission to be on the land at one point however proprietary estoppel is almost an assurance you
are going to get something)
 Ian is otherwise entitled to the land -claimant is for some reason entitled to be registered -
because you were in adverse possession of registered land for 12 years completed before October
13 2003, so therefore schedule 12 paragraph 18 says that I am entitled to be registered - and you
will be registered
 Ian claims land at the boundary and reasonably believes he owns it - the one that nowadays
makes sense this has to do with a boundary dispute. You have a nice house your neighbour has a
nice house you put a fence up to stop dog crapping on the grass - you put up this fence and it
turns out you put the fence half a meter too far into your neighbours garden - boundary wasn’t
absolute to sure and you put it in the wrong place. You have factual possession in land you
intended to posses and you clearly od not have permission to be there - you have three elements
of adverse possession and therefore you apply under LRA 2002 schedule 6 paragraph 5 section 4
you say this is merely a boundary dispute this is land which I appear to be mine the boundary
itself was not obvious there was a plan but the plan was too vague and I reasonably believe this to
belong to me and in that case the register will register the land with you - you can get adverse
possession of land

LRA 2002 Adverse Possessor succeeds even where objection: situation 3

 Ian's claiming land belonging to Mick which is at boundary of Ian's own land: Sched 6, para 5(4):
 (a) land claimed adjacent to applicants own land and
 (b) boundary is undetermined and
 ( c ) land claimed registered for one year or more; and
  (d) for 10 years 'ending on the date of the application' applicant/predecessor reasonably believed
land was his
 Ian needs to have reasonable belief the land belongs to him
 WHEN is belief reasonable? Reasonably believed has been adjudicated - IAM Group plc v
Chowdrey [2012] - belief land owner counts - does the land owner reasonably believe the land
claim belons to them and if answer. However when the land owner is informed about it then The
act says effectively reasonably belief has to exist before the claim -Zarb v Parry (2011)
reasonable - it depends on circumstances but absolute maximum we would expect you to apply
within 6 months of being told about this.
 If they don’t do it without time its barred from making claim
 Rationale allows for the land register to be updated where dividing walls/fences were erected in
the wrong place. See land Registry, Practice Guide 4, para 8.3; and Law Com 271 para 14.46
 Ian (or previous owner) rebuilt wall on land forming part of Micks Land
 Legitimate justification for adverse possession claim where title is registered because register is
not conclude as though boundaries LA section 60

PROBLEM QUESITON
The facts that we give you may start late 80s
 You could fall into 12 years of AP prior to October 2003
 Brings in all three regimes
 Argue when factual possession started, intention to possess, then adverse to possession started
 Land discussing could be discussed as a boundary dispute
 FP - FACTUAL POSSESSION
 IP - INTENTION TO POSSESS
 AP - ADVERSE POSSESSION
 ^ THAT TELLS ME WHEN ADVERSE POSSESSION STARTS IF IT STARTED THAT
TELLS ME WHICH REGIME I MIGHT BE DEALING WITH
 IF ITS UNREGISTERED LAND YOU ARE GOING TO GET THE LAND
 IF ITS REGISTERED LAND YOU MIGHT OR MIGHT NOT GET THE LAND BUT YOU
ARE MORE LIKELY TO IF IT IS A BOUNDARY DISPUTE

Rupert went into adverse possession of this registered land in December 2003 - he has been there for 20
years - does that mean he gets the land - his been there for a minimum of 10 years -- he is entitled to
apply - but the register office is going to tell the registered title holder they have 65 business days to
object if they fail to object then Rupert becomes the legal title holder
However if they do object then Rupert has a total 2 years to bring an action to bring you evicted .
Provided adverse possession has not completed 12 years before this act came in -

Whether the claimant had factual possession and when that started
Demonstrate from the facts and intention to possess and when that started
Then you have to show possession is adverse and when that started

Has the claimant demonstrated factual possession given the facts that are demonstrated to me
 When in time did the factual possession start in time
 Second problem is to work out and demonstrate when intention to posses the land has started
 It might be the case that the claimant intended ages ago to possess the land
 What you need to establish when in time did intention start - it may be that therefore you have
factual possession and intention to possess - however it could be there was a permission - a right
to be on the land and that only ended later on - therefore it is at that time that adverse possession
starts because then you have all three elements for adverse possession
  If going on in time if one of those elements ceases then adverse possession ceases - you have to
have all three - it only begins when all three are in place
 Pye v Graham - they had intention to possess for land for ages, intention to possess to use land
was ages ago, they put their cows on the land they maintained fences etc, later on in time so then
that is when their factual possession starts - but du ring that time they had a lease over the land
and therefore they did not have the third element. It was only told when they were not going to
renew the lease that the claim of adverse possession started

Pye v Graham, Graham made claim for adverse possession

Owner of land should have looked after the land and evict the graham family but they didn’t. grahams
looked after it and had adverse possession