Adverse Possession - Lecture notes 2 PDF

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Land Law Adverse possession lecture notes...

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Adverse Possession Summary Adverse possession is the informal acquisition of land – from squatter to land owner There is a different process and consequences in regard to:  

Unregistered land; Registered Land

Necessarily it involves a civil (might be trespass), sometimes a criminal wrong. We need to consider if it is Human Rights-compliant.

Property is Socially-ordered Since land provides the physical substratum for all social and economic interaction … land law impinges upon a vast area of social orderings and expectations, exerting a fundamental influence on the lifestyles of ordinary people. Kevin Gray, Elements of Land Law (Butterworths 1988) 6:

The Basics McPhail v Persons (Names Unknown) [1973] Ch 447 (CA) 456 (Lord Denning): What is a squatter? He is one who, without any colour of right, enters an unoccupied house or land intending to stay there as long as he can. N.B. ‘Squatter’ is wider than ‘adverse possessor’.

Adverse Possession: The popular view   

Some people view it as Seizure of another’s property without consent Nevertheless some justify it by the social deprivations and the lack of housing ‘Land Theft’

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Recent changes in the Law on squatting s. 144 (1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012) Squatting in residential buildings (like a house or flat) is illegal. It can lead to 6 months in prison, a £5,000 fine or both. But note, anyone who originally enters a property with the permission of the landlord is not a squatter. For example, if you are renting a property and fall behind with rent payments you are not squatting if you continue to live there.

Squatting and the law: Non-residential buildings Although squatting in a non-residential (might be commercial premises) building or land is not in itself a crime, it is a crime to damage the property. It is usually a crime to not leave the land or property when you are instructed to do so by:    

The owner The police The council A repossession order from a court

Legal Justification for Adverse Possession •

Settling disputes; (settling disputes through the law of adverse possession)

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Certainty in the law; (the law is certain)

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Marketability of land;

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Conveyancing practice.

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See (very important): •

Martin Dockray, ‘Why do we need Adverse Possession?’ [1985] Conv 272.

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Law Commission Land Registration for the 21st Century LC254 paras 10.6 – 10.19. http://www.lawcom.gov.uk/app/uploads/2015/04/lc254.pdf

More reading suggestions on Handout: this is a very controversial topic that is often raised as an essay question

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Adverse Possession and Land Registration LC 254 para 10.3: [W]e consider that the policy considerations which justify the present system of adverse possession in relation to unregistered land have far less weight in relation to registered title. This is because unregistered title is possession-based whereas the basis of registered title is the fact of registration.

Land registration is ‘not a system of registration of title but a system of title by registration’. LC 254 para 10.43: In making our proposals for reform we have two objectives. The first is to accept that the system of land registration is “not a system of registration of title but a system of title by registration” (Breskvar v Wall (1971) 126 CLR 376, 385, per Barwick CJ) The basis of title should therefore be the register.

Adverse Possession: Legal Rules Based on Possessory Rights    

Immediately upon occupation the trespasser acquires possessory rights. They are good against anyone except one with better rights. Relativity of Title Importance of Possession-Seisin More required for effective adverse possession

Perry v Clissold [1907] AC 73 at 79 per Lord Macnaghten “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title.”

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There are 5 (4 + Time) Requirements for Adverse Possession 1. Adverse possession: • •

Limitation Act 1980, sch 1(8)(1): ‘the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.’

Applied: •

Buckinghamshire County Council v Moran [1989] 1 Ch 623 (CA);

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Pye v Graham [2002] UKHL 30, [2003] 1 AC 419.

Adverse possession means that the occupations must be unfavorable, against something and open. No License: If occupation is by License Possession cannot then be ‘adverse’ to paper owner (title holder). Possession must be ‘open, notorious and unconcealed’ • •

Lord Advocate v Lord Lovat (1880) 5 App Cas 273 (HL Sc) 291, 296.

Defence if Paper Owner would not reasonably have noticed Squatter’s actions: •

Roberts v Swangrove Estates Ltd [2007] EWHC 513 (Ch), [2007] 2 P&CR 17 [43].

2. Dispossession or discontinuance: •

Limitation Act 1980, sch 1(1): ‘the right of action shall be treated as having accrued on the date of the dispossession or discontinuance’.

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Palfrey v Palfrey (1974) 229 EG 1593 CA

There has to be an act of dispossession or discontinuance for an adverse possession to accrue. Dispossession (lack of consent) arises by ‘a person coming in and putting another out of possession’: NOT Ouster – there was no fight over, it simply means that the squatter has gone into ordinary possession of the land for the requisite (necessary) period without the consent of the owner.

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‘The question is simply whether 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’: Pye v Graham [2002] UKHL 30, [2003] 1 AC 419 [46] (Lord Browne-Wilkinson).

Discontinuance Discontinuance is where ‘the person in possession abandons possession and another then takes it’ See e.g. Palfrey v Palfrey (1973) as regards an odd example of discontinuance, Merely very slight acts by an owner in relation in land are sufficient to negative discontinuance’: Powell v McFarlane (1979)

3. Factual possession (an individual treats land as their own by exercising appropriate degree of physical control); and 4. Intention to Possess (animus possidendi) 

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The person claiming adverse possession of land must have manifested intention ‘to exclude the world at large, including the owner … made clear to the world’ – Powell v MacFarlane (1979) Not intention to own the land but intention to possess the land.

Key cases: Powell v McFarlane (1979) 38 P&CR 452 (Ch) approved in: Bucks CC v Moran [1989] 1 Ch 623 (CA); and Pye v Graham [2002] UKHL 30, [2003] 1 AC 419.

Remember:  

Possession must be adverse; Possession must be open;

To sum up:

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Adverse Possession (AP) 1. Establish that the possession is adverse – without the permission of the paper owner Also OPEN not used in secrecy 2. Establish an act of dispossession or discontinuance 3. Establish factual possession (acts in relation to the land itself e.g. fences or locks) 4. Establish Intention to possess 5. Establish Time that the Adverse Possession commenced (we do that by reference to the act of dispossession or discontinuance)

The idea of TIME Requirement 5: Effluxion of time (The amount of time that is required to establish adverse possession). What is limitation? A statutory provision that provides for a time-limit within which legal action may be taken. Unregistered Land: 12 years from commencement Registered Land: if completed before 13 October 2003 also 12 years Registered Land (Land Registration Act 2002 came into force in October 2003) post 13 October 2003: A minimum of 10 continuous years – then apply provisions of the Land registration Act 2002, sch 6(1)

Simply put, if an adverse possessor stays in the land for longer than the abovesaid time limit, that protects the right to take legal action then the right of the landowner will expire.

Adding Time Periods Together

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Unregistered land (and registered land before 13.10.2003):

Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078 (CA); Facts: MCI owned garage and flat. 1970 R forced entry and took up possession of both 1974 R allowed Peter Thurlow to enter possession. R abandoned possession 1981 MCI wrote telling PT to leave the property 1983 MCI issued a writ 1988 PT entitled to possession 1970 – 1983 = 13 years possession

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Registered land (LRA 2002) After 13.10.2003: Adding time periods together is not possible according sch 6(1) Unless a successor in title Schedule 6 (11) (2)

Termination of Adverse Possession If factual possession or intention to possess is interrupted, ‘the clock is restarted’. Generay v The Containerised Storage Co Ltd [2005] EWCA Civ 478, [2005] 2 EGLR 7; Orange plastic tape fence=self-exclusion

BP Properties v Buckler (1988) 55 P & CR 337 (CA); (unilateral licence) “We are prepared to allow you to remain in occupation of the house and garden rent free for as long as you may wish and for the rest of your life” In this case, the Land owner offered a licence to the squatter, therefore they could not claim adverse possession.

Zarb v Parry [2011] EWCA Civ 1306, [2012] 1 WLR 1240.

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In this case, the paper owner attempted to retake the land by cutting down a tree and trying to put up a fence. But actually, on the fact that they were interrupted, in doing so unsuccessful. The adverse possession continued, and the clock did not stop, thus entitling to the adverse possessors the land.

Another way that adverse possession can stop is if the adverse possessor acknowledges the title of the paper owner Requires:    

Written and signed acknowledgement (not oral) Effect: Stops the clock (Limitation Act 1980, ss 29(2), 30(1)) Limitation Act s.30 Formal provisions as to acknowledgments and part payments. (1) To be effective for the purposes of section 29 of this Act, an acknowledgment must be in writing and signed by the person making it.

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Case law: •

Edginton v Clark [1964] 1 QB 367; ‘offer subject to contract’ = acknowledgment

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Lambeth LBC v Bigden (2001) 33 HLR 43 (CA); letters to council ‘Lambeth’s property’ = acknowledgment

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Rehman v Benfield [2006] EWCA Civ 1392, [2007] 2 P&CR 16; fraudulent documents = acknowledgment

Ofulue v Bossert [2009] UKHL 16, [2009] 1 AC 990. ‘without prejudice = no acknowledgment •

Mr and Mrs Ofulue were registered proprietors of a property which they had let to tenants when they went to live abroad;

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Since 1981 or 1982 the property had been occupied by Ms Bossert;

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Possession proceedings had initially been commenced against Ms Bossert in 1987, but these had been struck out in 2002;

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Current proceedings launched in 2003.

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[…] the principal issue on this appeal concerns the extent to which it is permissible for one party to rely on a statement made by another party in 'without prejudice' correspondence written with a view to settling earlier proceedings between the same parties. The particular statement in this case is said to constitute an acknowledgment of title which stopped time running against the claimant under the provisions of the Limitation Act 1980. (per Neuberger LJ 60, 116) Note Lord Scott’s dissenting judgment The majority of the Lords agreed that the Public Policy purpose of without prejudice negotiations should be allowed to prevail and thus Ms. Bossert’s adverse possession would not be interrupted by the letter she sent to the Ofulue. per Hope LJ 12, 102: “I think that the public policy basis for not allowing anything said in the letter to be used later to her prejudice provides Ms Bossert with all she needs to defeat the argument that the implied admission that it contains can be used as an acknowledgment against her in these proceedings. The essence of it lies in the nature of the protection that is given to parties when they are attempting to negotiate a compromise. It is the ability to speak freely that indicates where the limits of the rule should lie. Far from being mechanistic, the rule is generous in its application. It recognises that unseen dangers may lurk behind things said or written during this period, and it removes the inhibiting effect that this may have in the interests of promoting attempts to achieve a settlement. It is not to be defeated by other considerations of public policy which may emerge later, such as those suggested in this case, that would deny them that protection.”

The effect of Limitation in Unregistered Land Limitation Act 1980 ss.15 (1) and 17; Bucks CC v Moran [1989] 1 Ch 623 (CA): ‘Limitation ... extinguishes the right of the true owner to recover the land, so that the squatter’s possession becomes impregnable, giving him a title superior to all others.’ Re Jolly [1900] 2 Ch 616 (CA). Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078 (CA).

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What happens on transfer to the Adverse Possessor? There is no transfer of title. Relative title becomes indefeasible (cannot be overturned) Acknowledgement of title after the 12 year has expired will no longer be effective to help the landowner. See for example, Nicholson v England [1926] 2 KB 93 (KB); Colchester BC v Smith [1991] Ch 448 (Ch). Nevertheless, there are some exceptions: Mental incapacity, fraud, acts between parties to a trust, Crown lands and foreshore: listed in Limitation Act 1980, sch 1.

Adverse Possession Lecture 4 Key cases: Powell v McFarlane (1979) 38 P&CR 452 (Ch) Mr P (plaintiff) lived on a farm with his grandparents; McFarlane (defendant) (PO) working overseas. Factual possession? Before 1962 •

14-year-old boy started using neighbouring land for purposes connected with the farm;

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Cut hay, made ‘rough and ready’ repairs to boundary fence so land could be used to graze cow;

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Post 1962

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He got older and had established his own business

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Mr. Powell’s intentions had hardened,

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just as his activities (for example his parking of vehicles and lorries and the erecting of a sign board) (per Slade J 480)

Basic Principles of Adverse Possession “It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law:

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(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.

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(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (“animus possidendi”).

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(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly 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 enjoyed.” (per Slade J 471-472)

What is Factual possession? “It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession. […] Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and no-one else has done so’. (per Slade J 471)”

Lord Advocate v Lord Lovat (1880) 5 App.Cas 273 Salmon Fishing and fishing rights “As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests – all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.” (per O’Hagan LJ 288)

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Animus Possidendi—Intention to Possess “An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.” (per Slade J 473)

Intention to Possess: in Powell v McFarlane •

‘[H]e entered it simply with the idea of taking what he needed from it by way of grazing, etc. until he was stopped, and with no real thought at that time of establishing a permanent dominion over it.’

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‘These acts do not in my judgment go far enough to prove the requisite animus possidendi, particularly on the part of a 14-or 15-year-old boy.’ (per Slade J 479480)

Outcome: “In relation to Mr. McFarlane it is accepted that the plaintiff's claim must be in the light of my judgment dismissed with costs, and so I dismiss it.” (487)

Bucks CC v Moran [1989] 1 Ch 623 (CA) Facts Council acquired the disputed land for future use as part of a road; •

Land adjoined C’s garden – used the land as an extension of garden;

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Factual Possession: Only access to land was through C’s garden or a gate which he had locked;

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C conceded that he would have been obliged to leave the land if required for road.

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Intention: Intention to own defeated. BUT…

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Intention to possess the land to the exclusion of all others not defeated.

Factual Possession “[…] complete enclosure of the plot and its annexatio...