Marija Kutalovskaja

Anne Street
Word count is 1124

Omar may claim better title to the land than Bangers Developments by adverse possession if he
successfully meets the requirements for the claim and has completed the period of limitation of 12
years before 13th October 2003.

Adverse possession is the involuntary transfer of title from the paper owner to the adverse owner
only if the adverse possessor has demonstrated that they have met the requirements. Adverse
possession allows a mere trespasser to obtain a better claim to the land than the paper owner (a
person who legally owns the land).

The basic requirements for adverse possession have been established in Pye v Graham [2002]1,
the rules do not di er if you are dealing with registered or unregistered land. First, factual
possession must be demonstrated, as shown in Powell v MacFarlane [1979]2. This includes
activities performed by the adverse possessor which had helped establish physical control of the
land. The activities must have been performed without the consent of the paper owner. The most
successful way of showing that you have established physical control of the land is by fencing it
o . In the case of Minchinton v Hounslow [1997]3 a fence was put in place and the court found
that despite the intention was not to exclude the world from the land but to keep dogs in, it had
amounted to physical possession. Omar had also put up a mesh fence to protect his crops from
animals, even if his intention was simply to protect his crops and not exclude the world from the
land, the courts most probably will nd that this action amounts to factual possession and so
Omar had already achieved to complete the rst requirement. The second requirement is the
intention to possess (animus possidendi) without consent from the true owner. For Omar to prevail
on his adverse possession claim, Omar must show that his occupancy of the land was continuous
and had been done so with no consent from Bangers Developments. It had been established in
Pye that the true owner’s intention of using their land is irrelevant, meaning that if Omar was
aware of Bangers Development’s future skatepark plans, this knowledge would not a ect the
validity of his adverse possession. However, if Bangers Development have provided Omar with
permission to use the land and Omar was unaware of such a proposal or had not acknowledged
it, it would compromise his adverse possession and he would risk having the courts nd no
requisite intention. This has been established in BP Properties Ltd v Buckley [1987]4 and therefore,
it is crucial that if a claimant aims to claim adverse possession, they must reject the proposal and
continue using the land adversely. If the claimant is provided with an implied licence (basically an
unwritten licence) which has been agreed to orally, and agrees to it, then he or she cannot claim
adverse possession. Omar’s encounter with the CEO at the bar may put him in jeopardy and so
weaken his claim for adverse possession. Therefore, he mustn't pay the ‘token sum’. Thirdly, the
duration of the occupancy must be considered, the duration must have prolonged for the relevant
amount of time which we will discuss later. Finally, the registered land and unregistered land rules
must be considered.

Adverse Possession and Unregistered Land

If the paper owner sleeps on his or her rights to the land they own, the adverse possessor has a
right to claim a better title for themselves than the paper owner. In most cases the limitation
period is 12 years of adverse possession5, meaning the paper owner is unable to sue the adverse
possessor in an attempt to recover their rights to the land that they have previously chosen to not

1 UKHL 30 2002
2 38 P & CR452
3 74 P & CR 221
4 2 EGLR 169
5 Limitation Act 1980, s15
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invoke after the expiry of the 12 years6. However, the expiry period di ers if the paper owner is the
Crown. Assuming that Bangers Developments is not the Crown, if Omar has adversely possessed
the land for 12 years, he can claim a better title than Bangers Development. Since he had no
lease with the company, the 12-year period started when Omar made use of the land for the rst
time in 1989. In 2001 Omar can claim for adverse possession and so claim to be the proprietor.
The court may nd that the clock of limitation had been stopped if the adverse possessor
acknowledges the paper owner’s title before the expiry date of the limitation period, for example,
if they start to pay rent7. Therefore, Omar must not pay the token sum as it could jeopardize his
claim for adverse possession. The paper owner can also take back their land if they become
active on it again before the expiry period, however, as shown in Smith v Waterman [2003]8 the
retaking of control must be demonstrated successfully; for example, simply walking onto the land
would not be su cient. Alternatively, if Bangers Developments take their skatepark project o
hold and start construction sites on the land, the court may nd that that amounts to su cient
retaking of control. Omar’s claim will then be weakened, and his chances of becoming a
proprietor will fall. However, if Omar’s expiry date had been before 13th October 2003 and before
the conversation with the CEO, his claim for adverse possession is most likely to succeed, which
entitles him to become proprietor of the land9.

Land Registration Act 2002

There's no limitation against a registered title (paper owner) in this act. This act provides the paper
owner with protection and assurance against adverse possessors, as they will know they cannot
lose their title merely because another person has adversely possessed the land for a certain
period10. After 10 years of adverse possession, the adverse possessor has the right to apply for
registration11. Submission of the claim allows the adverse possessor to make a claim to be
registered as a proprietor and this triggers a process to which the paper owner is alerted too. The
paper owner can choose whether they respond to the claim within 65 days. If the registered
proprietor fails to respond or they consent to the application, the adverse possessor becomes the
registered title. However, they can choose to object triggering further steps.

Omar is advised to consider the dates of the expiry period of limitation, whether it had been
before 13th October 2003 or before the conversation was held with the CEO, as both of these
factors can negatively a ect the success of Omar's claim to the land by adverse possession.

6 Limitation Act 1980, s15

7 Limitation Act 1980, s29 and s30
8 All ER (D) 72
9 Land Registration Act 1925
10 Land Registration Act 2002, s96
11 LRA 2002, schedule 6, paragraph 2
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