Adverse possession (2018-19) handout only (final) PDF

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Michaelmas Term 2018 Amy Goymour

LAND LAW Adverse Possession

A.

INTRODUCTION

Essence of adverse possession: someone who takes over another person’s property without the true owner’s permission – rules allow that person to become the owner of that property after a certain amount of time has elapsed (10/12 years, depending on whether registered/unregistered land)  Call the person a squatter  No compensation available to owner who has lost land to squatter – so looks to naked eye that it looks like rules allow someone to steal someone else’s land 1.

Examples: the potential breadth of adverse possession

Note the film ‘Hampstead’ (2017), directed by Joel Hopkins, based on the story of Harry Hallowes.  Evicted from housing council flat, so lives in shack built in Hampstead Heath. Due to ruels of adverse possession, allowed to keep land on which his shack was built (1/2 acre). Story made national headlines.  Heirs are technical owner of piece of land – now worth 4 million pounds.  Has acquired something enormously valuable without paying for it – all he’s done is live there. Can we really justify giving somebody something for nothing?  Should law be kind to these people or not? If the identity of squatter was corporation, does this make a difference? Ellis v Lambeth LBC (1999): concerns Victorian housing prop in Brixton, South London. Owned by London Borough Council. They had forgotten they owned this property.  House taken over by group of squatters – organized squat. Lead squatter (Mr. Ellis) – in charge of the house and decided who could join, could evict people, etc.  After a while, local authority realized their property was inhabited by squatters and tried to evict Mr. Ellis and friends.  Argued: been here more than 12 years so have acquired title to land by adverse possession  Held: won. He was owner of property at the expense of the public (local authority). o Is this an acceptable result? Boundary disputes: imagine you own the land on one side of the fence and neighbour owns land other side of fence.  Technically, the boundary is closer than the fence. By mistake, you and your neighbour put up fence by mistake long time ago. So you have been using strip of land that technically belongs to your neighbour.  If you do this for requisite period of time, you too can acquire land by adverse possession – possessing someone else’s land without their permission for requisite time  Common example – people not sure of boundaries and overstep, even innocently – rules of adverse possession can allow them to physically acquire land  Is this an acceptable result? In these varying scenarios, think about what factors law should be taking into account: - Identity of squatter? - Intentions? - Good faith/bad faith relevant? - Whose land are they taking – public or private? - Should it depend on the amount of land/value of land? At this stage, English law of adverse possession = very broad. In 2003, when land law registration Act came into force, was contracted for registered land. So for unregistered land, very broad. Apply without any great nuance.

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2.

Policy rationales and tensions (not exhaustive) Law Com No 254, Land Registration for the Twenty-First Century: A Conveyancing Revolution’ (1998), paras 10.5-10.19 M Dockray ‘Why do we need Adverse Possession?’ [1985] Conv 272 L Fox O’Mahony and N Cobb ‘Taxonomies of Squatting: Unlawful Occupation in a New Legal Order’ (2008) 71 MLR 878 G Alexander and E Peñalver, An Introduction to Property Theory (2012), 110-13 (and more generally) Argument against adverse possession: looks like we are sanctioning the theft of land. Rationales for adverse possession: (1)

Helps us in establishing who owns the land, thereby facilitating conveyancing

Sometimes have difficulty ascertaining who is owne rof particular piece of land. That is particularly the case where land is unregistered – if can’t look at land register to see who owner is, have to do detective work. Need to look at deeds of conveyance going back years/decades to make sure person who says they just bought the land has a valid traceable title that has an origin. Sometimes deeds are lost/misplaced/lost in fire so can be hard to know who owner is. Society needs to know who owns plot of land – not that much of land to go around. Small country with dense population, so land valuable. People onlymake use of land when they are sure they are teh owners o fit. So in society’s interest that we know who owns a piece of land so it can be traded and used. Gap in evidence re ownership: adverse possessio can fill that gap. If we can show that someone has been adversely possessing piece of land for time, rules of adverse possession say for sure they are the owner – settles unertainty we otherwise have. Because we now know who owner is, land can be traded with because purchaser will be willing to buy it (person buying from is actually owner) – so key to market that land be known who the owner. So adverse possession important in facilitating conveyance: as below: JA Pye (Oxford) v Graham [2003] 1 AC 419 “[I]n the days before registration became the norm [the law of adverse possession] could no doubt be justified as avoiding protracted uncertainty where the title to land lay.” (Lord Bingham, at [2]) (2)

Ensuring legal entitlement is in line with factual reality Law of adverse possession brings law into line with facts. Any legal system out of line with reality does not really work. If A is the true owner, but B and his family have been on land for years and look like owner/everyone thinks they are the owner, some merit with law catching up with reality and making person who looks like owner the actual owner. Not a reason on its own to have adverse possession, but combined with other factors, potentially a rationale. Law Comm: identified this as benefit: “[I]f land ownership and the reality of possession are out of kilter, the land in question is rendered unmarketable.” (Law Com 254 (1998), para 10.8) R v Oxfordshire CC, ex p Sunningwell Parish Council [2000] 1 AC 335 “Any legal system must have rules ... which prevent the disturbance of long-established de facto enjoyment.” (Lord Hoffmann, p 349)

(3)

Encouraging more effective land use (preventing sitting on rights) – sort of use it or lose it policy

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If we give ownership of land to ppl who actually use it, and take ownership away from those who don’t use it, law is encouraging people to use land rather than allowing people to buy up land and sit on it w/o making use of it. Important principle because land is finite resource – make use of it as well as we can. Lots of empty properties – arguably they should be put to use and adverse possession can be used to encourage people to use them. “Land is an important national resource. Limiting the time for the true owner to recover possession encourages owners to make use of their land. If they do not, the limitation rules encourage others to do so, knowing that if they make uninterrupted use of the land for a substantial period, they will acquire title to it.” (M Jourdan and O Radley-Gardner, Adverse Possession (2nd ed, 2011), p 49) (4)

Labour-desert theory

John Locke: if you work with property (land, clay) and model something out of it/make use of land you are working wth, your labour mixes with propery and as a result you deserve some sort of entitlement to it. If made land your home and developed it/made something of it, you should have rights to it. (5)

Respecting psychological connection with land (Margaret Radin’s theory)

Law of adverse possession serves the purpose in respecting someone’s psych attachment with land. If, like Hallowes, you make home on piece of land, not juts somewhere where you live – you build up memories and if been there for 10-12 years, have memories. Arguably, the law should protect that. Margaret Radin, ‘Property and Personhood’ 34 Stan L Rev 957 (1981-82)

Do these 5 rationales add up to argument that favours adverse possession? Have to consider whether those arguments outweigh obvious counter-arguments. B.

STRUCTURE OF THE ANALYSIS

S goes into adverse possession

Immediate legal consequences

Legal effect of the running of time:  Unregistered land  Registered land

Possible impact of criminal law

Possible impact of Human Rights law legislation

Rightful owner of land = O (sometimes labelled paper owner in textbook) Squatter = X 5 boxes = 5 stages of analysis i)

ii)

iii)

iv) v)

Invites us to consider whether squatter has actually gone into adverse possession – depends if he has done enough, on facts, that he is in possession and that it is adverse (difficult legal test to apply to tests) If squatter has gone into adverse possession, immediate legal consequences. First day he goes into adverse possession: immediate consequences that need to be identified. These call into question some very fundamental issues of possession in property law. Legal effect of running of time – where rules diverge between registered and unregistered land. Unreg: rely on squatter being there for 12 years – after 12 years, squatter automatically becomes owner. Reg land: 10 years – after 10 years, squatter may apply to become owner but may not succeed. Offence of squatting in criminal law and effect on rules of adverse possession Impact of HR – cases challenging law on adverse possession on HR grounds (owners saying not proportionate that their prop rights taken away from them by rules on adverse possession)

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C.

IMMEDIATE LEGAL CONSEQUENCES: POSSESSION AND RELATIVITY OF TITLE

On day 1 of going into adverse possession, important legal consequences: 1.

Adverse possession generates a common law freehold

If you have an estae in land, either a fee simple or a leasehold estate, that give you a right to possess the land. If have fee simple, have right to use land unless you give it up to someone else (use it, occupy it, etc). You can possess that land exclusively. So title to land gives you exclusive right to possess the land. Converse is also true – if you go into adverse possession of someone’s land, that can give you a title – can give you a fee simple absolute in possesson (fee simple estate). Idea that you can acquire title by going into adverse possession: Cook and Turner. From the outset, a legal right is generated immediately and it is a fee simple. To acquire a title, two ways: - Acquire from previous title-holder (via a transfer/purchase): derive title from previous owner so derivative acquisition - Acquire new fee simple in land/set up own title by going into adverse possession: you acquire original title. You set up your own title by virtue of your own possession, so original acquisition Rosenberg v Cook (1881) 8 QBD 162 Turner v Chief Land Registrar [2013] EWHC 1382 (Ch), [13]-[15] What does this title mean? Fee simple gives him strong property rights - allows him to: (1) Ability to exclude strangers: title is exclusive right so can sue trespassers if they come into the land. If someone else tries to take away land from squatter (another squatter), first squatter can evict them and bring claim in courts. They have got a fee simple title and therefore can assert that title against trespassers. Armory v Delamirie (1722) 5 Str 505 (applying personal property law) - Facts: chimney sweep boy/apprentice. As he was sweeping, found a jewel. Belonged to someone else and took it into his possession. Took it to jeweller’s shop to be valued. Left it there, went back to collect it, and jeweller refused to give it back to him. Boy said you have to give it back to me because I have a title to it – I took possession of it so I have title I can assert against you. - Held: boy won. By taking possession, even though it wasn’t his, he acquired title to it that he could assert against third parties. Same is true of land – squatter’s rights in land can be asserted against third parties. (2) Transferability: because have a fee simple, can sell/transfer/lease out (trade with it). They could even raise money on it by mortgaging the land. So far, have seen in relation to house, when we have squatter going into adverse possession, owner himself has fee simple esttae in the land (legal fee simple). Squatter comes along and we have said, by going into advere possession, he too acquires a fee simple. This is a new fee simple generated originally by the squatter going into adverse possession. Idea of fee simple is exclusive rights to possess the land – logical impossibility bc looks like law is recognizing two people has having exclusive right top ossess the land. Can’t have this right as against each other… so problem… - Answer: doctrine of relativity of title (3)

Vulnerability to owner’s rights: relativity of title

Law accepts that we have two fee simples, but law orders one to have priority over the other. Owner’s fee simple has priority over the squatter’s fee simple. - Both have property rights in land, but owner’s is relatively superior to squatter’s

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Fee simple is basically the right to the land extending into the future for an indefinite amount of time – so owner’s fee simple began at a certain point of time and extends indefinitely. Squatter’s started later (when he went into possession) and extends indefinitely. Both extend indefinitely

Owner’s fee simple is better because it came first. Simple ordering rule – which came first has priority. Means owner is entitled to evict the squatter – owner’s righst are better than squatter’s, so can evict. Idea of relative titles doesn’t just work with 2 people – could, in theory, have up to 5. Have house owned by owner. Squatter 1 comes along, and then Squatter 2. In this situation, end up with 3 fee simples. Owner’s ranked first, second is S1, third is S2 because they came in that order of time. Basically what we have: when squatter acquires fee simple, acquire rights good against the whole world EXCEPT someone with a better title than they have. - S1’s title is an exclusive right to the land against the rest of the world (any trespasser, squatter, etc) – only fragility is to people with a superior title (owner) - The owner has rights good against everyone in the world beause no one has a right better than they have Asher v Whitlock (1865) 1 LR QB 1: “Possession is good title against all but the true owner.” (Cockburn CJ, p 6) As soon as S1 goes into adverse possession, at that moment that the owner acquires a right to evict S1. Fox ‘Relativity of Title at Law and in Equity’ [2006] CLJ 330, 330-340 (4)

When the squatter is a tenant What if squatter is renting property as a tenant? Ex: imagine have Plot A, owned by landlord and leased to tenant T by landlord. That plot is next to Plot B, owned by someone else. Imagine the tenant of Plot A starts adversely possessing part of Plot B. Q: who is the tenant adversely possessing for? Himself or his landlord? Who acquires the fee simple by virtue of possession – tenant or landlord? A: legal presumption that the tenant adversely possesses on behalf of his landlord AS LONG AS the squatted-on land is near to the original leasehold property. Therefore landlord acquires fee simple – position of S1 in earlier. Tower Hamlets Presupmtion is rebutted if tenant really and truly can be proved to have possessed for himself rather than benefit of landlord’s land (difficult to rebut, but ex: Tickle v Admiral TavernsI). Tower Hamlets LBC v Barrett [2006] P&CR 132 (noted Fox [2007] CLJ 16) Tickle v Admiral Taverns Ltd [2013] EWLandRA 2012_0122 (available on Bailii) - Facts: landlord leased pub to the tenant. At back was field owned by someone else (X). Field was directly accessible through the pub grounds, but was owned by a third party. Tenant started adversely possessing that field – used it to set up small caravan camping site. - Q: did the tenant adversely possess for himself (so tenant gets fee simple) or did his landlord get it by virtue of presumption). Tenant argued he was possessing for own benefit, not on behalf of pub landlord - Held: tenant won and acquired fee simple for himself. Adjudicator said: I) Tenant used own funds to improve field ot make caravan site, put in washrooms, etc. II) Also said the rent for the pub was calculated purely by reference to the pub income, not by reference to caravan sit eincome (looked like very separate entity). III) Caravan site genuinely independent of pub – very little crossover trade. Different clientele.

2.

The relationship between ownership and possession (1)

At common law

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When we call someone the owner, loosely referring to person with best title (best fee simple to the land). BUT, at least in unregisterd land, always risk that someone better can prove they have better title. For unregistered land: can only be sure you are person with absolute best title if we can show you have killed off superior owners’ rights. That is what happens: if you have been in adverse possession, that kills off superior rights.

Re Atkinson and Horsell’s Contract [1912] 2 Ch 1 “[W]henever you find a person in possession of property that possession is prima facie evidence of ownership in fee, and that prima facie evidence becomes absolute once you have extinguished the right of every other person to challenge it.” (Cozens-Hardy MR, p 9) (2)

Under the Land Registration Act 2002

Position different for registered land: registration itself is a source of title. You don’t have to prove you own something by means of possession, prove you are owner by being on rgister. Confirmed by s58: says if you are on register, you are conclusively the owner. Therefore relativity of land less important for title – what Gray argued (land registration moving us way from possession being an important factor in knowing who owns the land) Land Registration Act 2002, s 58 (the “conclusiveness” of registration in vesting a title in the registered proprietor) Gray and Gray, Elements of Land Law (5th ed, 2009) “[T]he notion of title in English law is currently undergoing an important transformation. The changing nature of modern title marks the transition from a world in which title to an estate in land originates in physical possession towards a rather different world in which the constitutive source of title is an administrative act of registration. […] In effect, the modern prevalence of registered estates in realty has caused the fundamental paradigm of English land law to shift from possession towards a new philosophy of ownership. […] Title as self-authenticating social reality has given way to title as state-regulated bureaucratic fact.” (para 2.2.1) BUT Goymour: argues relativity of land still important but registered land can have relatively inferior other titles. Goymour and Hickey, ‘The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002’, ch 6 in Goymour, Watterson and Dixon (eds), New Perspectives on Land Registration (2018) “There is a strong case for the persistence of title relativity [in the context of a squatter adversely possessing against a registered estate] – for three key reasons. First, it is doctrinally possible for an adverse possessor to acquire an unregistered relative fee simple, upon going into possession against a registered estate. Nothing in the LRA 2002 ousts this possibility; and certain provisions go further, and even assume the existence of a squatter’s relative title. Secondly, not only is the recognition of a relative title possible within the terms of the LRA 2002; it is also desirable for a mere possessor to acquire a title enforceable against third-party strangers. Thirdly, and importantly, the squatter’s title, being inferior, in no way threatens the integrity of the registered proprietor’s superior title – nor the reliability of the Register more generally.” (pp 77-78)

D.

ESTABLI...