LAND- Adverse Possession PDF

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EXAM QUESTIONS ESSAY...

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ADVERSE POSSESSION – EXAM ESSAY NO.8 On advising Downturn Council as to whether Bates, Thomas or Isobel might successfully apply to be registered as proprietor of the part of Upturn Manor they occupy, it involved the principle of adverse possession. To successfully raise the claim of adverse possession, there are several issues must be proven. Quoting Slade J in Powell v McFarlane (1979), the registered landowner is presumed to be the person who entitle the possession over the land, thus, if the squatter attribute the possession of land, he must prove the factual possession which means physical custody and control, and the intention to possess (‘animus possidendi’). Quoting Lord Browne, in Pye v Graham (2002), he simplified and further states the court should focus on whether the squatter is in possession of the land without the permission of the landowner. Downturn Council v Bates On the fact, Bates would unlikely be considered under adverse possession, as he was actual purchasing the house from the Downturn Council in 2008. This could be proving through the copy of the contract for sale and a receipt for the purchase price. Therefore, he is legally derived the property from Downturn. Hence, there isn’t any details on saying it involve the issue of fraud. Undoubtedly, he will successfully apply to be registered as proprietor of the part of Upturn Manor his occupied under Para5(3). Downturn v Thomas Factual Possession According to Powell v McFarlane, the factual possession will signify the appropriate degree of physical control, which must be a single and conclusive possession. This possession can either be exercised alone, or on behalf of several persons with united intentions. It is essential to note that the degree of possession will wholly rely on the land of nature which without a fixed definition (Pye v Graham (2002)). It could be tested with an objective standard. The reasonable man test will arise here to conclude whether the squatter reasonably satisfies the requirement. In West Bank Estates Ltd v Arthur, Lord Wilberforce states the squatter is reasonably and honestly treated the land as his own, although he is aware that he is a mere trespasser. On the fact, we’re told that Thomas stored his tools in the outbuilding in since 1997. At first, it was under a license granted by Downturn Council. Quoting Powell v Mcfarlane, time can never run when a permission or license from the owner was granted. Thus, the first 6 months would be under license. On the fact, Thomas hasn’t paid anything since then, thus, the clock will run, as the license is now invalid. Arguably, Downturn could argue although Thomas wasn’t paid for the license, it’s still a unilateral license, thus, the clock still remains stop (BP Properties v Buckler (1987)). However, due to the merit behind adverse possession, as the court intent the land to being good used, they would highly likely in favor the squatter. If the court in favor on Thomas, Thomas will be considered holding ‘squatter rights’, as 1997 till 2020 was over the limitation year of 12 years. It’s highly likely as Thomas was honestly treated the land belonged to him as he contributed effort on it.

The issue arise is whether this conduct could be deemed as a trivial and equivocal conducts. In general, it should be considered as to exclude anyone, including the land owner, from the land, and mostly used as a living place. On the fact, Thomas wasn’t for staying it, but mere to storage his tools. However, Thomas could argue with the case of Pubrick Hackney y London Borough Council, as although the nature of property wasn’t suitable for human to possess, used it as storage will still sufficient of factual possession. On the fact, the particular property was an outbuilding property, which is separate from the main property, and mostly a shed, barn or garage. It’s unlikely suitable for people to occupy the building, but suitable to storage. Furthermore, Hounslow LBC v Minchinton (1997) states the motive is irrelevant, but the effect on excluding anyone from the land was essential. On the fact, Thomas putting a lock at the door to the outbuilding, this could be considered as excluding anyone from the particular property and treated it as his own. Quoting S32(1) Limitation Act 1980, the period of limitation shall not begin to run, if the plaintiff is discovered fraud, concealment or hiding his possession of the land, until the occupation is open. It simply means the adverse possession must be peaceable and open, as seen in Browne v Perry (1991). On the fact, Thomas didn’t hide his occupation, and even putting the lock on the door. This does show his occupation was open. However, Downturn would argue with Rains v Buxton (1880), since they baring the onus of proving, they would take their unawareness on Thomas’ occupation as Thomas hiding his occupation, thus, the clock shouldn’t run. However, quoting J Alston & Sons v BOCM Pauls (2008), the awareness of the owner is irrelevant, as since the squatter did not hide his occupation, the clocks will run. The argument under Rains would seems unreasonable beyond this. Moreover, in Wrotham v Ross (2005), squatter minimalize but didn’t hid would still amount to adverse possession, thus, a lock will seems quite an obvious evidence of occupation. Thomas wasn’t even minimalizing his occupation, thus, Adverse possession will hold. Intention to possess: Quoting Lindsey M.R., Littledate v Liverpool College, the intention to possess was defined as “MR” of the adverse possession which intends to possess the land adversely to exclude everyone (Powell v McFarlane). Essentially, the intention to possess is sufficient, as isn’t a need for an intention to own (Williams v Jones). It’s basically means that the squatter is aware that he didn’t have the right to land, but does try as hard as possible to exclude everyone by entering the land, such as putting a lock (Pye v Graham). On the fact, Thomas had put a lock on the door, this would sufficient with regard to intent possess and exclusion. Registration: We’re told Downturn Council owns the registered title of Upturn Manor, and intended to use it once it had sufficient money. The question provides the property was left empty since the 1990s. Time requirements: Thomas will satisfy the minimum time of successful adverse possession required under LRA 1925, as he did reach the 12years of adverse possession after 12.10.2003. Thus, it seems that LRA 2003 is applicable. Referring s96 and in Schedule6 Para1 of the LRA 2002, after a minimum of 10 years of successful adverse possession, the claimant may make an application to become the register proprietor. Once this application is made, the Land Office will send out notice to all parties having interest in the property

including the actual owner (Para2). Thus, the owner would have his decision within 65 business days to response. On the fact, Thomas did spend more than 10years on the land, thus, he surely could make applications for the land that they claimed. If the owner takes no action or consent, the squatter application will be successful, without a 2 year’s waiting. if the owner opposes, the squatter’s application will be rejected. However, Thomas highly likely satisfy Para5(2) as he does occupy the land over 10 years, but to admitting his wrongdoing, further the court will grant remedies with regard to discretionary. Thomas might give compensation, but to get the land. Even though he fails under Para5. With Para6, Thomas would still able to get the property, by making further application if he remains in factual possession from the date of the application until the end of 2 years from the date of rejection, unless Para6(2) is satisfy. However, under Para7, Thomas will still succeed on register as the proprietor once the action under Para6(2) expired. Downturn v Isobel Factual possession On the fact, there is boundary fence between Upturn Manor and the neighboring factory. The issue here arise, is whether it amount to factual possession. Isobel would raise William Bros District Suppliers Ltd v Raftery (1958), as fencing is a sufficient factual possession, as it’s effect was to keep people out. Arguably, this conduct will amount to what generally expected on the owner’s act as only the owner will replace the boundary fence due to some specific reason. However, we’re told that replacing the fence wasn’t to keep people out, but merely due to replace the boundary fence that was destroyed during a fire. This can be seen in Basildon v Charge (1996), if the purpose of fencing wasn’t to exclude people, it won’t be considered as factual possession. However, in Hounslow LBC v Minchinton (1997), the motive of fencing is irrelevant, as long as it is a fence, it satisfies the requirement. As per Red House Farm v Catchpole (1977), it is based on case to case basis, as will depend on the nature and circumstances of the land itself. Therefore, if the court believed that what Isobel did was sufficient to satisfy the factual possession, Downturn will get nothing but lost his land. Otherwise, he will be able to have his land back. Intention to possess: Yet, it is highly likely Isobel has the intention to possess, as it does replace it with a new boundaries fences. This is arguably that Isobel has done the act which constituted factual possession but without the intention to possess, as it wasn’t a very act on excluding everyone. A similar case of Fruin v Fruin and Basildon v Charge, where the fences was mere to keep a senile member of the family from wandering off and keep the geese from running out respectively. The court held it couldn’t be held as a successful claim of adverse possession. However, with a later case of Hounslow v Minchinton, the court held that the intention wasn’t essential, but the effect of the act, as if the effect was to prevent from coming on to the land or to show possession, thus, it will be sufficient. Registration: Isobel should be able to claim as her possession is sufficient for 10 years under Para1. Although Downturn might oppose, Isobel could raise and satisfy Para5(4), as it’s relates to boundaries disputes,

and is has been 10years for the boundaries held. On the fact, Isobel was wrongfully believing the land was her, but it’s sufficient due to her honest belief. (1596 words)...