Dr Jo Hawkins Law 2270 and 3270

Land Law 2018-2019

Land Law: Topic 8

Adverse Possession

1
 1. Possession, Title and Limitation
1.1 Introduction

Adverse possession
occurs when someone
takes possession of
land without the
consent of the person
who is entitled to
possession of it.
 1. Possession, Title
and Limitation
1.1 Introduction

The precise consequences of

adverse possession are greatly
complicated by the sheer variety
of persons who may be the
adverse possessor… and the
numerous ways in which the land
being adversely possessed may
be held.
1. Possession, Title and Limitation
1.1.1 AP as a ‘root of title’

Adverse possession is
a ‘root of title’. Anyone
who takes adverse
possession of land will
thereby acquire a new
legal fee simple in it.
Leach v Jay 1878
If the land is unregistered, there will be the
(unregistered) legal fee simple of the dispossessed
owner, and the newly created (also unregistered)
fee simple of the adverse possessor.

If the land is registered, there will be the registered

legal fee simple of the registered proprietor, and
the newly arisen (and unregistered) legal fee
simple of the adverse possessor.
 1. Possession, Title and Limitation
1.1.2 Relativity of title

In principle, any fee simple

holder who is dispossessed by
a squatter can bring an action
to recover possession from
them. Even though both
parties have a fee simple, the
general rule is that the fee
simple which existed first is
the better one.
 1. Possession, Title
and Limitation
1.1.2 Relativity of
title

This idea that there can

be multiple fee simple
estates in the same
land, each one ranking
as better or worse than
the other one(s), is
referred to as ‘relativity
of title’.
 1. Possession, Title and
Limitation
1.1.3 Adverse possession
and limitation

In some cases the

dispossessed party may, for a
variety of possible reasons,
fail to bring any action
against the adverse
possessor. This may be, for
example, because they are
unaware of adverse
possession having taken
place.
 1. Possession, Title and
Limitation
1.1.3 Adverse possession
and limitation

When the dispossessed

party holds an unregistered
legal estate, the
consequences of a failure to
bring a claim are potentially
stark.
 1. Possession, Title and
Limitation
1.1.3 Adverse possession
and limitation

S15 Limitation Act 1980: if no

recovery within 12 years the
right to recover the land and
their title to it is extinguished!

The AP is the new ‘owner’ of

the land
 1. Possession, Title and Limitation
1.1.3 Adverse possession and limitation

If the dispossessed party’s

estate was registered, the
same ultimate result also
used to prevail under the
Land Registration Act 1925,
albeit by a slightly different
mechanism.
 JA Pye (Oxford) Ltd

In 1982 The Grahams purchased the farmhouse and in

1983 entered an annual grazing agreement in

The following year, Pye refused to renew the agreement

as he wished to apply for planning permission and
thought it would be easier if the land was not in use.

The LPA The Grahams were asked to vacate the land but
continued to occupy the land which was fully enclosed
1925 and and the gate padlocked with a key being held by the
Grahams.

Human In 1999 Pye issued proceedings  to gain possession of

Rights the land (estimated to be worth several million pounds!)

 The LPA 1925 and Human Rights

JA Pye (Oxford) Ltd

Pye’s claim was defeated by adverse possession

of the Grahams.
 The LPA 1925 and Human Rights

Article 1 of Protocol No 1 to the Convention:

‘Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one
shall be deprived of his possessions except in
the public interest and subject to the conditions
provided for by law and by the general principles
of international law.’
 The LPA 1925 and Human Rights

Article 1 was not infringed.

The law on limitation of actions affecting land was in the

general interest.

It amounted to a control of use of land rather than a deprivation

of possessions.

There was a fair balance between the policy being pursued and
the potential for loss to landowners.
 LRA 2002

The position of a dispossessed propieter is now

very different under the LRA 2002 (section 3.2)
2. Meaning of Adverse Possession
2.1 Introduction

There is a lot of legislation and case law on the

meaning of ‘adverse possession’. Detailed
knowledge of it is not necessary for present
purposes.
2. Meaning of Adverse Possession
-

As a starting point, the paper title holder is deemed to

be in possession of land, even if they are not actually
using it.

In order to override this default position and show

adverse possession, a person must show, firstly, that
they are in possession; and, second, that their
possession is ‘adverse’.
2. Meaning of Adverse Possession
2.1 Showing possession
Proof of possession by an
alleged
adverse possessor requires
them
to show:

1) a sufficient degree of
physical custody and
control (‘factual
possession’); and
2) an intention to
exercise such custody
and control on one's
own behalf and for
one's own benefit.
2. Meaning of Adverse Possession
2.1 Showing possession
‘Factual possession’
means that the
claimant must have
been “dealing with the
land in question as an
occupying owner might
have been expected to
have dealt with it and…
no-one else has done
so”: Powell v
McFarlane (1979).
2. Meaning of Adverse Possession
2.1 Showing possession
Factual possession will vary depending on the type/state of land
e.g.:

• woodland simply cutting timber may suffice (Wilson v Martin’s Executors

1993).
• shooting game on land that is virtually useless for anything else (Red
House Farms (Thorndon) Ltd v Catchpole 1977).

Fencing off the relevant land is often very cogent evidence of factual
possession (Seddon v Smith (1877) as is installing locks (Lambeth LBC v
Blackburn 2001).

Because possession must be exclusive, any significant user by the paper

title owner or third parties will prevent a finding of factual possession:
(Bligh v Martin 1986).  
 2. Meaning of Adverse
Possession
2.1 Showing possession
There is a welter of case law on the
animus possidendi criterion.
You need to show:
• intention to possess and not to
own
• to possess only for the time being,
as opposed to for a longer period
• it does not matter if the claimant
mistakenly believes that they are
the owner (Prudential Assurance Co
Ltd v Waterloo Real Estate 1999)
• It does not matter if the adverse
possessor would have been willing
to pay for their occupation if asked:
J A Pye (Oxford) Ltd v Graham 2003)
 2. Meaning of Adverse
Possession
2.1 Showing possession

Animus possidendi cannot be disproved

by showing the claimant knew of some
special purpose that the owner
used/intends to use the land for and
the claimants conduct is not
inconsistent with this

Buckinghamshire CC v Moran (1989)

 2. Meaning of Adverse Possession
2.1 Showing possession
Proof of the intention to possess is usually
inferred from actions.

But….a person who fenced off property did not

have animus possidendi because they did so only
to keep in their sheep: Inglewood Investment Co
Ltd v Baker 2002) (but contrast Chambers v
Havering LBC 2011 and emphasis on considering
context as a whole)
 2. Meaning of Adverse Possession
2.1 Showing possession

If the ‘owner’
loses possession,
they can in turn
regain it by re-
establishing
factual control
and showing
animus
possidendi.
2. Meaning of Adverse Possession
2.1 Showing possession

Zarb v Parry (2012)

The Zarbs and the Parrys were

neighbours. The Parry lived to the north of the Zarbs.
The ‘correct’ boundary between their properties ran
from west to east, several feet to the north of a hedge.

The Parrys, however, had mistakenly treated the land

up to the hedge as theirs. They had clearly been in
adverse possession of it.
2. Meaning of Adverse Possession
2.1 Showing possession

The Zarbs argued that they had

interrupted this period of adverse
possession in 2007.

They had entered onto the strip between the hedge

and the ‘true’ boundary. They uprooted a tree and
some fencing. They then began putting up fence
posts along the ‘true’ boundary, having marked it out
with a surveyor’s tape.
 2. Meaning of Adverse
Possession
2.1 Showing possession

When challenged by the Parrys, Mr

Zarb said that he was taking the
land by force because it was his.
The Zarbs left 20 minutes later
when the Parrys threatened to call
the
police. They had spent in
total less than an hour on
the strip of land.
 2. Meaning of Adverse
Possession
2.1 Showing possession

The CA accepted that a re-

taking of possession could be
achieved in a very short
period.

It was held, however, that

possession had not been
resumed by the Zarbs. They
had taken preparatory steps,
but had not effectively
excluded the Parrys.
 2. Meaning of Adverse
Possession
2.1 Showing possession

Lord Neuberger MR added that: “it

may have been a pretty close run
thing”, as “if [the Parrys] had stayed
out shopping for another hour, the
Zarbs may have completed the
execution of their plan.”
 2. Meaning of Adverse
Possession
2.1 Possession must be
‘adverse’

Possession will be not be

‘adverse’ if it is enjoyed
with the consent of the
paper title holder, for
example as a tenant or a
licensee.
2. Meaning of Adverse Possession
2.1 Showing possession

BP Properties Ltd v Buckler (1988)

The owner wrote to the squatter,

stating that they were willing to
allow them to remain. It was held
that this act created a licence, even though the squatter
never actually communicated their consent.
 2. Meaning of
Adverse Possession
2.1 Showing
possession

It was added, however,

that the outcome could
have differed had the
squatter plainly told the
owner that she did not
accept the letter.

Smith & Ors v

Molyneux [2016] UKPC
35
 3. AP under the LRA 2002
3.1 Policy approach

As part of its proposed reforms of registered land, the

Law Commission sought to change the way in which
adverse possession is dealt with.
 3. AP under the LRA 2002
3.1.1 Policy and unregistered land

Four reasons are commonly adduced for the law as it

applies to adverse possession of unregistered land. To
an extent they are overlapping. Some of them are also
stronger or weaker from case to case.
 3. AP under the LRA 2002
3.1.1 Policy and unregistered land

(a) To protect
defendants
from stale
claims and to
encourage
claimants not
to sleep on
their rights.
 3. AP under the LRA 2002
3.1.1 Policy and
unregistered land

(b) To prevent hardship in a

case where a person takes
possession of land in the
reasonable but mistaken
belief that he or she is the
owner of the land.
 3. AP under the LRA 2002
3.1.1 Policy and unregistered land

(c) To facilitate
unregistered
conveyancing.
3. AP under the LRA 2002
3.1.2 Policy and
registered land

The conveyancing
justification that is so
important to unregistered
land is considerably less
relevant in the context of
registered land.
 3. AP under the LRA 2002
3.2.1 Right to apply for registration

Part 9 of the 2002 Act marks a significant change to the

law of adverse possession. The operation of the
Limitation Act 1980 is disapplied: s 96 LRA 2002.

Instead, an adverse possessor can apply to be

registered as the proprietor of land if they have been in
adverse possession for ten years up to the date of the
application.
 3. AP under the LRA 2002
3.2.1 Right to apply for registration

On receiving an
application, the Land
Registrar must then
notify the registered
proprietor (amongst
others) of it: Sch 6, para
2(1).

These persons then have

65 business days to lodge
a counter-notice.
 3. AP under the LRA 2002
3.2.1 Right to apply for registration

A party who serves a counter-notice can state that they

dispute the entitlement to apply for registration. But
whether or not they do that, they may also require the
application to be dealt with as set out in Sch 6(5).
 3. AP under the LRA 2002
3.2.1 Right to apply for registration

Under Sch 6(5) the

application must be
rejected unless any
of three exceptions
applies.
 3. AP under the LRA 2002
3.2.2 The exceptions

(1) Where it would be

unconscionable because
of estoppel for the
registered proprietor to
dispossess the applicant
and the applicant should
in all the circumstances
be registered (Sch 6, para
5(2)).
3. AP under the LRA
2002
3.2.2 The exceptions

Proprietary estoppel was

considered in topic 2 (see
topic 2 handout, section 4,
pp. 20–21).
 3. AP under the LRA 2002
3.2.2 The exceptions

Any cases of proprietary estoppel that come within this

exception are likely to be rare.

This is because the large majority of cases involving

proprietary estoppel will be ones in which there is
sufficient ‘consent’ on the part of the proprietor to
mean that the possession is not ‘adverse’ to begin with
 3. AP under the LRA 2002
3.2.2 The exceptions

In addition, remember that a party

who can show a claim of proprietary
estoppel has an ‘equity of estoppel’
over the affected land.

If that land is sold on by its owner, the claim will not be

enforceable against the new owner unless the equity of
estoppel binds them.
3. AP under the LRA
2002
3.2.2 The exceptions

(2) Where the applicant is

for some other reason
entitled to be registered as
proprietor (Sch 6, para
5(3)).
 3. AP under the LRA 2002
3.2.2 The exceptions

This would, for instance, extend to

a situation in which a purchaser of
land went into possession having
paid the agreed price, but in which
the legal title was never validly
conveyed to them.
 3. AP under the LRA 2002
3.2.2 The exceptions

(3) Where there is a boundary dispute concerning

adjoining land, the applicant reasonably believing for at
least 10 years that the relevant land was his, the exact
boundary has not been determined under s 60 LRA
2002, and the estate to which the application relates
has been registered for at least one year (Sch 6, para
5(4)).
 3. AP under the LRA
2002
3.2.2 The exceptions

Some context about

boundaries is necessary to
understand this exception.
The default position is that
the Land Registry entry for
any registered estate shows
only its ‘general boundaries’.
 3. AP under
the LRA 2002
3.2.2 The
exceptions

In cases in which there

is only a ‘general
boundary’, evidence
may be adduced to
determine precisely
where it lies in the
event of any dispute.
 3. AP under the LRA 2002
3.2.2 The exceptions

But whatever the boundary is worked out to be as a

result of this process, it may be that one of the
neighbouring parties has been in possession of some
land on the other neighbour’s side of the boundary.

This neighbour will therefore be an ‘adverse possessor’

of this land. It is potentially the case that they could
claim it under this third exception under the 2002 Act.
 3. AP under the LRA
2002
3.2.2 The exceptions

Zarb v Parry (2012)

Arden L.J. seemed to suggest

that the belief cannot end
any more than a short time
before an application is
brought under Pt 9 to the LRA
2002.
 3. AP under the LRA 2002
3.2.2 The exceptions

“The moral is that, as soon as the adverse possessor

learns facts which might make his belief in his own
ownership unreasonable, he should take steps to
secure registration as
proprietor.”

Zarb (2012), per Arden L.J

 3. AP under the LRA
2002
3.2.2 The exceptions

IAM Group Ltd v Chowdrey (2012)

C was the owner of No 26A, which

he
used as a shop. Since 1993 he had
used the first and second floors of
No. 26 for storing stock.

C honestly believed that they

formed part of his land, his
solicitors having told him this.
 3. AP under the LRA 2002
3.2.2 The exceptions

The solicitors’ belief was unreasonable.

The court rejected an argument that this should affect

the reasonableness of C’s belief.

Matters would differ if C ought reasonably to have

made further inquiries and these would have revealed
the mistake.
3. AP under the LRA 2002
3.2.2 The exceptions

The CA also seemed to

dismiss the view that the ten
year period of ‘reasonable
belief’ is simply any ten year
period.

This continues to be
contentious.
 3. AP under the LRA 2002
3.2.2 The exceptions

McLeod v Brown and Jones (2013)

 
“Although the belief must have been had
during the period of adverse possession,
and must have been held for at least 10
years, it does not have to be established as
continuing up to the date of the
application.”
• Updating the Land Registration Act 2002 (LC 227 2016)

• The Law Commission has recently recognised a number of

these issues and is consulting on the following questions
relating to adverse possession.

• Are the first two sch 6 exceptions actually used or should they
be removed?
• Should clarification be given so that reasonable belief (in
relation to the third exception) must not end more than 6
months before date of application
 3. AP under the LRA 2002
3.2.3 The blameless landowner and the blameworthy squatter…

Were the new controls really necessary?

Factual possession of the property: the courts are

generally reluctant to deprive the true owner of
possession if there is any kind of evidence that they still
had control of the land.

Similarly, the possession must be adverse meaning the

landowner can easily stop the ‘adverse’ nature of the
possessions by providing a licence.
 3. AP under the LRA 2002
3.2.3 The blameless landowner and the blameworthy squatter…

Cobb and Fox (Taxonomies of Squatting: Unlawful Occupation in a

New Legal Order’ 2008 MLR):
 
- 78,000 families are in temporary accommodation in England and
Wales

- 3.8 million new households are estimated to be in need of

accommodation by 2016

- Properties currently lying empty could potentially provide

around 600,000 new homes. Almost 100,000 of these in London
• New Labour proposal of the English Sovereign Land
Trust – force sale of land to the state at knockdown
price (sale price as if there is no planning permission)

• Why? The need to build/housing shortage and the

rising cost

• How does this idea fit with AP and the rationale of

productive use of land?
 3. AP under the LRA 2002
3.2.3 The blameless landowner and the
blameworthy squatter…

‘it is, of course, remarkable that the law is prepared to legitimise

such ‘‘possession of wrong’’ which, at least in some cases, is
tantamount to sanctioning a theft of land. ’Law Commission ,Land
Registration for the 21st Century: A Consultative Document
(LawComNo254) (London: HMSO,1998)
 3. AP under the
LRA 2002
3.2.4 Applications
and the criminal
law

From the evidence

included by a squatter
in their application, it
may be the case that
they have committed a
criminal offence under s
144 of LASPOA 2012.
 3. AP under the LRA 2002
3.2.4 Applications and the criminal law

a) the person is in a residential building as a trespasser

having entered it as a trespasser;

b) the person knows or ought to know that he or she is

a trespasser; and

c) the person is living in the building or intends to live

there for any period.
3. AP under the LRA 2002
3.2.4 Applications and
the criminal law

R (Best) v Chief Land Registrar (2015)

B discovered what he thought

was an abandoned house (though
title to it was registered; on the death of
its owner it had passed to her son).

B took possession of the house for ten

years, and applied to be registered as the
new owner.
 3. AP under the LRA 2002
3.2.4 Applications and the criminal law

For the final three months

of his ten years of
possession, squatting in a
residential building had
been a criminal offence
under s 144 LASPOA.

The Land Registry guidance suggested that the

application should fail in such circumstances.
3. AP under the LRA 2002
3.2.4 Applications and
the criminal law

The CA held that there was no bar to B

applying to be become the registered
proprietor.

Sales L.J. balanced the policy

considerations of the LRA 2002
provisions on AP with those behind s 144
LASPOA. Having done so, he concluded
that Parliament could not have intended
to affect the LRA 2002 regime.
 3. AP under the LRA 2002
3.2.4 Applications and the criminal law

His reasons for thinking this included:

- the implausibility of s 144 being

silent on the point if so significant
a change was intended;
- that the contrary view would
destabilise titles; and
- the contrary view would create
arbitrary distinctions.
 3. AP under the LRA 2002
3.2.4 Applications and the criminal law

Arden L.J. agreed that Parliament

had not intended to affect the
operation of the LRA 2002 regime.

She gave some further reasons for

this.

These included that the penalty

for breach of s 144 is laid down in
that section.
 3. AP under the LRA 2002
3.2.4 Applications and the criminal law

The merits of
the new
criminal offence
have been
much
discussed.
 3. AP under the LRA 2002
3.2.4 Applications and the criminal law

SQUASH (May 2016)

• There were at least 148 arrests  under s144 LASPOA in 2015.
This brings the total confirmed arrests to date to 736 people
since 2012 .

• Those arrested were predominantly male (83%), young

(average age of 30) and homeless.
 
• S144 is unnecessary since displaced residents were already
protected under the Criminal Law Act 1977; when asked, no
police force was able to cite a single case of a displaced
residential occupier for a squatting arrest.
 
 3. AP under the LRA 2002
3.2.4 Applications and the criminal law

SQUASH (May 2016)

• In 2015 35 people were fined upon conviction. It is estimated

that this number is near to 131 people between 2012-2016.

“offender being found guilty of squatting in a residential

building and given a £75 fine and ordered to pay £85 costs”
Cumbria

• S144 is unaffordable , because it transferred the social and

financial costs of eviction from private owners to the public
purse.
 Topic 8 Essay Area
Some things to think about!

The effect of LRA 2002 on adverse possession

claims
What was the law pre 2002?

Were there any problems with it?

Did the old law encourage the productive use of land?

Did the old law legitimise theft?

 Topic 8 Essay Area
Some things to think about!

How does the LRA 2002 affect adverse possession

claims?

Why was such a change considered necessary?

What does this suggest about land law and society’s

attitude towards adverse possession?

Is such a change justifiable?

 Topic 8 Essay Area
Some things to think about!

Are there any exceptions under schedule 6 and why?

How valuable are these exceptions in reality? E.g. What

the chances are that no one would object to Sch 6
application (or that the owner would not deal with a
squatter within two years if the application failed).

How wide is the boundaries exception?

 Topic 8 Essay Area
Some things to think about!

Effect of s 144 LASPOA

How common are ‘bad faith’ squatters are in practice?
Will the act deter squatting?

What does the new offence mean for squatters/how

long are they likely to be able to stay in properties now?

The new offence does not prevent one from applying

under Sch 6 (Best v Chief Land Registrar (2015)). But
what effect has it had on a vulnerable group in society?