Topic 2 Adverse Possession Handout and seminar 2019-2020 PDF

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Adverse Possession LAW1122 2019-2020

NEWCASTLE LAW SCHOOL

LAW1122: LAND LAW ADVERSE POSSESSION 2019-2020 BRONWEN JONES 1

Introduction

1.1

Aims and Purposes

Regarding this topic, the material aims to: 1.

Identify the features that distinguish a deeds-based and a register-based system of title and their relevance;

2.

Identify the social and legal justifications for adverse possession of land;

3.

Explain the conceptual basis of relativity of title;

4.

Identify the rules for establishing adverse possession of land;

5.

Contrast the rules for registered and unregistered land;

6.

Explore the relationship between the rules;

1.2

Essential Reading

Martin Dixon, Modern Land Law chapter 12. Alternatively, McFArlane, Hopkins and Nield Land Law chapter 9 Chris Bevan Land Law chapter 4 Law Commission, Land Registration for the Twenty-first Century (Law Com No 254, 1998) part X, paras 10.1 – 10.78 only. Martin Dockray, ‘Why do we need Adverse Possession?’ [1985] Conv 272. This document has been digitised and uploaded to the VLE due to projected demand. Look under ‘Lecture Slides and Additional Materials’. Roger Kerridge & A H R Brierley, ‘Adverse Possession, human rights and land registration: and they all lived happily ever after?’ [2007] Conv 552.

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Adverse Possession LAW1122 2019-2020

1.3

Further Reading

Louise Tee, ‘Adverse Possession and the Intention to Possess’ [2000] Conv 113. M P Thompson, ‘Adverse Possession: The Abolition of Heresies’ [2002] Conv 480. Daniel Davison-Vecchione, ‘To Make a House a Home: Best v Chief Land Registrar’ [2014] Conv 351. Amy Goymour, ‘Squatters and the Criminal Law: Can Two Wrongs Make a Right?’ (2014) 73 CLJ 484. Martin Dixon, ‘What Sort of Land Registration System?’ [2012] Conv 349. Martin Dixon, ‘The Reform of Property Law and the Land Registration Act 2002: A Risk Assessment’ [2003] Conv 136.

1.4

Notes for Readers

While the online resources, such as Westlaw, are generally excellent, not every article is available digitally. The Conveyancer and Property Lawyer is only syndicated from 1986 onwards. Nonetheless, the library still has paper copies. Search the library catalogue for the name of the journal and you will find it.

2

Overview and Context

2.1

Philosophical Views of Land

Land law is often viewed two-dimensionally, as a simple relationship between persons and a physical piece of land. However, the evolution of land law principles owes much to broader social, political and economic principles such as social utility, power, status and a hierarchy of rights. One area of land law in particular, that of adverse possession, is a prime example of social, political and economic interests intersecting with legal principles. Before we look at the general rules, consider these statements and think about the purpose of land law. Kevin Gray, Elements of Land Law (Butterworths 1988) 6: Since land provides the physical substratum for all social and economic interaction, the law of land is inevitably an expression of social status and an instrument of social engineering. All of us – even the truly homeless – live somewhere, and each therefore stands in some relation to land as owner-occupier, tenant, licensee or squatter. In this way land law impinges upon a vast area of social orderings and expectations, exerting a fundamental influence on the lifestyles of ordinary people.

Alice Tay, ‘Property and Law in the Society of Mass Production’ (1977) 10 ARSP (NS) 87, 97: [T]he concept of property, the way in which it is legally defined and the extent to which it is legally, socially and politically protected raise immediately the most fundamental problems of political philosophy and social life – the relationship between the individual and his social environment, between the citizen and the State and – in modern society – between the personal and commercial.

The above statements highlight the integral link between land, social order and a definition of personal status within a social hierarchy. Land (and property law more generally) can provide society with a code of values. We see this particularly when we examine adverse possession. 2

Adverse Possession LAW1122 2019-2020

2.2

Adverse Possession: 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.

Squatting – as adverse possession is commonly called – involves a civil wrong. The squatter is necessarily a trespasser. A successful application of adverse possession turns this wrong into a right – the right to the land and good title. If the squatter is not evicted within a sufficient time, the title of original owner (the ‘paper owner’) will be lost. N.B. ‘Squatter’ is wider than ‘adverse possessor’. The ‘occupy’ protestors who pitched up next to St Paul’s Cathedral in 2011 did not intend to possess the land but could plausibly be called squatters.

2.3

Popular Views of Adverse Possession

Squatting: A Home Office Consultation Paper (October 1991): There are no valid arguments in defence of squatting. It represents the seizure of another’s property without consent.

Ministry of Justice ‘Options for dealing with squatting’ Consultation Paper CP12/2011 (July 2011) 3: The Government does not accept the claim that is sometimes made that squatting is a reasonable recourse of the homeless resulting from social deprivation. There are avenues open to those who are genuinely destitute and who need shelter, which do not involve occupying somebody else’s property without authority. No matter how compelling or difficult the squatter’s own circumstances, it is wrong that legitimate occupants should be deprived of the use of their property.

Ron Bailey, The Squatters (Penguin Special 1973) 34: Squatting should be the movement of ordinary people to challenge the authorities on the whole [housing] issue.

A M Prichard, ‘Squatters – The Law & The Mythology’ (1976) 40 Conv 255, 276: [The] essential problems are social and political. Decades of failure to provide homes for decent citizens have driven some of them to solve if only temporarily, their problem by occupying empty premises which could easily appear an affront to their homelessness, The facts that less genuine and less deserving squatters may have climbed on the bandwagon and that those who squat may be seen to be attempting, and even succeeding, in queue jumping over their more law-abiding fellows on housing lists are scarcely convincing reasons for extending the use of criminal law against the victims of the inadequacies of a long series of so-called housing policies. Building and renovating more houses is the real solution, not providing an over-technical framework of law.

3

Historic Origins of Title to Land

English land law has a strong undercurrent of empiricism. This informs the pre-2002 relationship between title and possession. Ownership or dominion over land was a Roman law concept, one the common law did not receive. ‘Seisin’ of land was considered by the early common law to be the consequence of physical possession of the land. It originated in the feudal tenures of land that date from the Norman Conquest. ‘Possession is nine-tenths of the law’ goes the lay phrase. The legal principle is that possession generates a common law freehold, presumed to be a ‘full’ freehold title unless the contrary is shown. 3

Adverse Possession LAW1122 2019-2020 Indeed, transfers of land once took place not by deed of grant, but by the ceremony of feoffment by livery of seisin. E.g. Rudyard Kipling, Puck of Pook’s Hill (Macmillan 1906) 12: “What’s taking seizin?” said Dan, cautiously. “It’s an old custom the people had when they bought and sold land. They used to cut out a clod and hand it over to the buyer, and you weren’t lawfully seized of your land – it didn’t really belong to you – till the other fellow had actually given you a piece of it – like this.” He held out the turves.

As you will recall from the lectures on leases and licences, possession is more than mere occupation. A possessor seeks to exclude the world at large and control her land. The one-tenth of the law expressed in the words ‘unless the contrary is shown’ is the most part of this topic. A logical consequence of this arrangement is that possession of land generates a title good against everything but a better claim for that title. This is the common law principle of ‘relativity of title’. There is not outright ownership but instead a contest between possessors for the legally ‘best’ period of possession. This is reflected in LC254 para 1.09 on relativity of title: ‘The person best entitled to land is the person with the best right to possession of it.’ Adverse possession is one such way of winning that contest. Upon completing adverse possession for the requisite period of time, all claims to title based on prior entitlements are ‘statute-barred’, meaning the time-bar expressed in the relevant statutory provision (currently Limitation Act 1980, s 15) applies to prevent all other claims, no matter how good their prior titles were. Consequently the adverse possessor takes, for all intents and purposes, an absolute title to the estate in land.

4 4.1

Justifications for Adverse Possession Legal Justifications Certainty in the law Settling disputes Marketability of land Conveyancing practice

Martin Dockray, ‘Why do we need Adverse Possession?’ [1985] Conv 272 Law Commission, Land Registration for the Twenty-first Century (Law Com No 254, 1998) paras 10.6 – 10.19

4.2

Social Justifications for Adverse Possession Boundary disputes Utilisation of land Martin Dockray, ‘Why do we need Adverse Possession?’ [1985] Conv 272 Law Commission, Land Registration for the Twenty-first Century (Law Com No 254, 1998) paras 10.6 – 10.19

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Land Registration

Land registration is ‘not a system of registration of title but a system of title by registration’.

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Adverse Possession LAW1122 2019-2020 Law Commission, Land Registration for the Twenty-First Century: A Consultative Document (Law Com No 254, 1998) paras 10.3, 10.43 (bold emphasis added): [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. 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.

6

Legal Rules

We consider the adverse possession of freehold land in this topic. See Dixon for the complications arising in the cases of leasehold.

6.1

Possessory Rights

As soon as a trespasser enters into occupation, she acquires possessory rights. Perry v Clissold [1907] AC 73 (HL).

6.2

Adverse Possession

The Limitation Act 1980 sets out two cumulative requirements. 1. Dispossession or discontinuance: Limitation Act 1980, sch 1(1); 2. Adverse possession: Limitation Act 1980, sch 1(8)(1); Powell v McFarlane (1979) 38 P&CR 452 (Ch) 468; Buckinghamshire County Council v Moran [1989] 1 Ch 623 (CA); Pye v Graham [2002] UKHL 30, [2003] 1 AC 419; Palfrey v Palfrey (1973) 229 EG 1593 (CA). 6.2.1

Factual Possession Powell v McFarlane (1979) 38 P&CR 452 (Ch) 470: ‘an appropriate degree of physical control’; Pye v Graham [2002] UKHL 30, [2003] 1 AC 419 [32]–[38]: Ouster not required.

6.2.2 Possession must be Adverse The possession must be adverse. If the squatter is in occupation with the permission, licence of or lease by the paper owner that possession is not adverse. See, e.g., Pye [37]. 6.2.3

Possession must be Open Lord Advocate v Lord Lovat (1880) 5 App Cas 273 (HL Sc) 291, 296: Possession must be ‘open, notorious and unconcealed’; Roberts v Swangrove Estates Ltd [2007] EWHC 513 (Ch), [2007] 2 P&CR 17 [43].

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Adverse Possession LAW1122 2019-2020 6.2.4

Intention to Possess Powell v McFarlane (1979) 38 P&CR 452 (Ch) 471: An intention to possession is an intention ‘to exclude the world at large, including the owner … made clear to the world’. NOT an intention to own Limitation Act 1980, sch 1(8)(4)

6.2.5 Example Scenarios The case law is rich in example scenarios. Seddon v Smith (1877) 36 LT 168 (CA) (Cockburn CJ): ‘Enclosure is the strongest possible evidence of adverse possession’; Purbrick v Hackney LBC [2003] EWHC 1871 (Ch), [2004] 1 P&CR 34. De minimis acts will not be sufficient: Powell v McFarlane (1979) 38 P&CR 452 (Ch); Boosey v Davis (1988) 55 P&CR 83 (CA). Consider the nature of the land: Red House Farms (Thorndon) Ltd v Catchpole (1977) 244 EG 295 (CA); Pavledes v Ryesbridge Properties Ltd (1989) 58 P&CR 459 (CA). Young children: Powell v McFarlane (1979) 38 P&CR 452 (Ch); Tecbild v Chamberlain (1969) 20 P&CR 633 (CA).

6.3

Effluxion of Time

Adverse possession requires a certain amount of time to have passed before any legal effect takes place. Before considering what happens upon time running, consider first complications that may occur before that: interruptions in possession. 6.3.1 Commencement and Completion The key date is of course the date adverse possession begins. From this date ‘time begins to run’. Unregistered land: Limitation Act 1980, s 15(1), sch 1(1); Registered land: Land Registration Act 2002, sch 6(1). For unregistered land, time finishes running 12 years from commencement: Limitation Act 1980. For registered land under the rules of the Land Registration Act 1925, the same applies. The period must have been completed before 13 October 2003. See Land Registration Act 2002, sch 12(18). For registered land under the current rules – the Land Registration Act 2002, the time period is 10 years: LRA 2002, sch 6(1). 6.3.2 Adding Time Periods Together N.B. This only applies to the adverse possession of unregistered land. Registered land requires continuous adverse possession by the applicant: LRA 2002, sch 6 (1). 6

Adverse Possession LAW1122 2019-2020 Mount Carmel Investments Ltd v Peter Thurlow Ltd [1998] 1 WLR 1078 (CA); Markfield Investments Ltd v Evans [2001] 1 WLR 1321 (CA); Site Developments (Ferndown) Ltd v Cuthbury [2010] EWHC 10 (Ch), [2011] Ch 226. 6.3.3 Termination of Adverse Possession When the land ceases to be in adverse possession: Limitation Act 1980, sch 1(8)(2): Where a right of action to recover land has accrued and after its accrual, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be treated as having accrued and no fresh right of action shall be treated as accruing unless and until land is again taken into adverse possession.

Adverse possession can of course be restarted. As a consequence, a temporary interruption of adverse possession by the paper owner will restart the clock, but the paper owner would be well-advised to take more permanent action. Generay v The Containerised Storage Co Ltd [2005] EWCA Civ 478, [2005] 2 EGLR 7; BP Properties v Buckler (1988) 55 P & CR 337 (CA); Zarb v Parry [2011] EWCA Civ 1306, [2012] 1 WLR 1240. 6.3.4 Acknowledgement of Title Effect of written acknowledgement: See Limitation Act 1980, ss 29(2), 30(1). Note that the rules of acknowledgement of title adhere strictly to the statutory provisions and they are different to the rules governing intention to possess. If the strict requirements of the statute are not met, take extra care in determining whether the ‘acknowledgement’ amounts to negativing intention to possess. Edginton v Clark [1964] 1 QB 367 (CA); Lambeth LBC v Bigden (2001) 33 HLR 43 (CA); Rehman v Benfield [2006] EWCA Civ 1392, [2007] 2 P&CR 16; Ofulue v Bossert [2009] UKHL 16, [2009] 1 AC 990.

6.4

Consequences of Effective Period of Adverse Possession

6.4.1 Unregistered Land Limitation Act 1980, ss 15(1), 17. Buckinghamshire County Council v Moran [1989] 1 Ch 623 (CA) 644 approving Perry v Clissold [1907] AC 73 (PC) 79: 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). Hence there is no transfer of title, no conveyance. In accordance with the principle of relativity of title it is simply the case that the adverse possessor’s title becomes indefeasible. As a consequence of the immediate effect of the effluxion of sufficient time, a subsequent acknowledgement of paper owner is ineffective: Nicholson v England [1926] 2 KB 93 (KB); 7

Adverse Possession LAW1122 2019-2020 Colchester BC v Smith [1991] Ch 448 (Ch). N.B. There are exceptions. Time does not run when the paper owner lacks mental capacity, where there is fraud or the parties are in a trust relationship. Different rules apply to Crown lands and foreshore. See Limitation Act 1980, sch 1. 6.4.2

Registered Land: LRA 1925 Period of adverse possession completed on or before 12 October 2003; Land Registration Act 1925, ss 75, 70(1)(f); Law Commission, Land Registration for the Twenty-first Century (Law Com No 254, 1998) para 10.28ff; Land Registration Act 2002, sch 12(18).

6.4.3

Registered Land: LRA 2002 Land Registration Act 2002 ss 96–98, sch 6/

For complications and examples, see: Iam Group Ltd v Chowdrey [2012] EWCA Civ 505, [2012] 2 P&CR 13; Zarb v Parry [2011] EWCA Civ 1306, [2012] 1 WLR 1240; Baxter v Mannion [2011] EWCA Civ 120, [2011] 1 WLR 1594. 6.4.4 Minor Interests A successful case of adverse possession does not affect the rights of holders of minor interests over the land. Unregistered land: The adverse possessor is neither ‘equity’s darling’ (a bona fide purchaser of the legal estate for value without notice of the rights) because no value is given, not is the adverse possessor is a purchaser pursuant to the Land Charges Act 1972, s 4. See Re Nisbet & Potts’ Contract [1906] 1 Ch 386 (CA). Registered land: LRA 2002, sch 6(9).

6.5

Civil Wrongs, Human Rights? Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR); Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Right to the Peaceful Enjoyment of one’s Possessions (A1FP). Pye v Graham [2002] UKHL 30, [2003] 1 AC 419; Beaulane Properties Ltd v Palmer [2005] EWHC 817 (Ch), [2006] Ch 79; J A Pye (Oxford) Ltd v UK [2007] ECHR 44302/02, (2008) 46 EHRR 45; Ofulue v Bossert [2008] EWCA Civ 7, [2009] Ch 1 affd [2009] UKHL 16, [2009] 1 AC 990 (HR point not appealed to HL).

6.6

Criminalisation Criminal Law Act 1977, s 6: If coupled with violent entry, trespass will also be a criminal wrong;

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Adverse Possession LAW1122 2019-2020 Criminal Justice and Public Order Act 1994, s 68 as regards aggravated trespass; Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), s 144: squatting a residential building is always a criminal offence. Cf Criminal Law Act 1977, s 7. Ministry of Justice ‘Opti...