Question 4 Adverse possession

Introduction

Ownership of land is often described as “the best right to possess” and possession of land is itself evidence of ownership.

In simple terms, adverse possession is based on the principle that if a paper title owner fails to evict a squatter or a trespasser from his land within a certain time period, the paper title owner’s title to land may be lost. What we mean here by the term, “paper title owner” is the legal owner of the property. In adverse possession, if a person has been unlawfully dispossessed of his land, he must within a given period assert his right to get back his land. If he fails to do so, he will be prevented from asserting his right to get the legal title back. The person who dispossessed him, the adverse possessor, will have a better title to the land.

The concept of adverse possession is interesting from a social point of view: should a person ever be able to dispossess the owner of land by simply squatting on it? One view is that that squatting does have a useful function. Consider the following example of Lord Pepper, who is a wealthy landowner, living in the Caribbean and having abandoned a cottage in England called “The Meadows”. Is it right that Jordan, with his homeless family, should be able to acquire title to it by moving in and fulfilling the requirements for adverse possession under the law in England and Wales?

By the end of this lesson you should be able to explain: the requirements for adverse possession
the time limits needed to establish adverse possession adverse possession in tenancies

the nature of rights in adverse possession
advantages and disadvantages of adverse possession adverse possession and human rights.

Let’s look at the lesson in detail.

Requirements for adverse possession

In order to acquire land by adverse possession, the claimant must show: factual possession (corpus possessionis)
intent to possess (animus possidendi).

The effect of claiming adverse possession is essentially negative: the adverse possessor does not thereby acquire a title, but the legal title of the paper owner is extinguished and then the adverse possessor has the right to claim the title of the previous owner.

Factual possession

Factual possession is often referred to as the “corpus possessionis”. This means that there must be actual possession of the land which excludes all others, including the paper title owner. Slade J. in Powell v McFarlane [1977] 38 P& CR 452 stated that:

“Factual possession signifies an appropriate degree of physical control… Everything must depend on the particular circumstances but broadly, I think what must be shown…. is that the alleged possessor has been dealing with the land as an occupying owner and might have been expected to deal with it and that no one else has done so.”

Thus acts, implying possession in one case, may be wholly inadequate to prove it in another. The following have been held sufficient to demonstrate factual possession:

living in a house (but not with the paper owner – Powell v McFarlane [1977] 38 P& CR 452

using a suite of offices

enclosing land, such as padlocking the access and by erecting corner posts. Fencing must include some degree of permanence. Normally, enclosing land will be enough – Seddon v Smith [1877]36 LTR 168.

In Williams v Usherwood [1983] 45P&CR 235, enclosing of land by a fence, parking three cars and paving a driveway with decorative paving stones was held to be enough evidence to establish sufficient physical control. In Tecbild v Chamberlain Ltd. [1969] 20 P&CR
633 playing on the land by children and the tethering of ponies was not enough as evidence of physical control. In Buckinghamshire County Council v Moran [1990] Ch 623, placing of a new lock and chain on an access gate was enough. Where land is suitable for only limited uses then factual possession will be easier to show. In Red House Farms v Catchpole [1977] 1 EGLR 125, adverse possession was claimed of a small island formed by the changing course of a river. As it had no agricultural use, factual possession could be shown by shooting on the island.

Locate the case of Powell v McFarlane [1977] 38 P& CR 452 on WestLaw and draft a statement analysing the ratio of the case and add a record on the ‘make a note’ function found on the module homepage on ilearn.

In the case of Powell v McFarlane [1977] 38 P& CR 452, Powell lived with his grandfather on a farm which was adjacent to the land owned by McFarlane. When McFarlane moved abroad, Powell started making use of the land by grazing a cow and goat there. He also made repairs to the fence and used the land for shooting. The court declined to find an intention to possess from just these actions. By considering his age, it was not clear whether that intention to possess the land for his own benefit for as long as he wanted could be established, as the requisite intention could not be found.

Intention to possess

You need to deal with intention to possess separately from factual possession, as it may be that although there is factual possession there is clearly no intention to possess.

In the example discussed earlier, which concerned the property called “The Meadows”, the conclusions would have been different if Jordan was in occupation of “The Meadows, a locked house which he agreed to look after for Lord Pepper whilst Lord Pepper was away on holiday. Jordan may have had factual possession, but he did not intend to actually possess “The Meadows”.

For a claim in adverse possession to be successful, the adverse possessor must intend to exclude the paper title owner and the rest of the world. An intention to own the land is not required because the claimant will usually be aware that he is not the owner. In Powell v McFarlane [1977] 38 P& CR 452, Scott J. said that where a trespasser (i.e. an adverse possessor) is claiming, the courts will require “clear and affirmative evidence” that the trespasser not only had the intention to possess, but made this clear to all the world. The direct evidence of intention is often lacking and instead it often has to be inferred from evidence of unequivocal acts such as controlling access and leaving the owner to squeeze through a hedge to get to the field Marshal v Taylor [1895] 1 Ch 641.

The significance of Pye v Graham (2002) 3 WLR 221

Both of the requirements for adverse possession are illustrated by Pye v Graham (2002) 3 WLR 221. Pye was a property development company which owned fields adjacent to the Graham’s farm. Pye intended to build on the field once planning permission was obtained but meanwhile granted the Grahams licences to graze and cut hay on the fields. The licences were granted for 1983 and 1984 only. Further licences were subsequently requested but were not granted. However, the Grahams continued to use the land and, in 1997, they claimed title by adverse possession. The House of Lords, reversing the Court of Appeal, held that the claim succeeded. The Grahams had physical control, as the only access was through gates which they controlled, and they had the intention to use the field for their own purposes, as they used it as part of their farm. Significantly, the House of Lords held that it was no bar to a claim for adverse possession that the squatter was willing to pay for the use of the land.

The Court of Appeal had held that there was no adverse possession as the Grahams had made it clear that they intended to continue using the land in the hope that a new licence would be granted.

In addition, the Court of Appeal felt that the fact that the Grahams were willing to pay for the use of the land defeated their claim. The House of Lords, however, emphasised that too much should not be made of the adverse element; the vital issue was whether there was factual possession to the exclusion of others.

Christine and Derek bought a house which bordered land owned by Lee. At the back of Christine and Derek’s house, there was no fence or hedge and they could walk straight onto the open land which belonged to Lee. Christine and Derek had a very small garden and were keen on growing their own vegetables. Gradually, they took in a further strip of Lee’s land to extend their vegetable patch. They treated the strip of land as if it were part of their own garden. Lee did not live on his land. He lived nearer to his work and returned to his land when he could. When Lee made it to his land, he mowed the grass on the rest of the land but ignored the strip cultivated by Christine and Derek.

Consider whether Christine and Derek have the required intention to acquire rights over Lee’s property.

In Pye v Graham (2002) 3 WLR 221, the House of Lords held that the Grahams had the necessary intention because they maintained the land and used it as their own along with the rest of their farm property. Similarly, Christine and Derek were using the strip of land owned by Lee as their own. They had cultivated it and treated it as part of the garden.

Establishing adverse possession of unregistered land

A claim of adverse possession of unregistered land is based upon limitation of actions. By virtue of S.15(1) Limitation Act 1980, the legal owner has 12 years in which he/she can remove the adverse possessor. S.17 Limitation Act 1980 provides that after the expiry of 12 years any action is barred and the title to the land is extinguished.

The title acquired by the adverse possessor will be subject to all proprietary rights that burden the land whether they are legal or equitable, registered in accordance with the Land Charges Act 1972 or not and irrespective of whether the successful adverse possessor had notice of those rights or not.

Establishing adverse possession of registered land

This is governed by the provisions in the Land Registration Act 2002. The Act applies to all adverse possession claims of registered land that commenced after the Act came into force in October 2003.

As per Schedule 6 paragraph 1 Land Registration Act 2002, after a minimum of 10 years of adversely possessing a piece of land, the adverse possessor can apply to the Land Registry to be registered with title to the land that he is adversely possessing.

Earmarked land

Earmarked land is land which is kept to be used for a future purpose by the legal paper title owner. There were a few cases which discussed the possibility of the paper title owner attempting to negate the rise of a claim of adverse possession, claiming that he had a future intention for the land which was the subject matter of an adverse possession claim.

In Wallis’s Cayton Bay Holiday Camp Ltd. v Shell Mex and BP Ltd. [1975] QB 94, Shell Mex and BP Ltd, the defendants, owned land in the middle of a field in which they intended to erect a garage. The rest of the field belonged to Wallis who, for over 12 years, also farmed the defendants’ land. The defendants then decided not to erect a garage because a proposed road was not going to be built. It was held that Wallis had not acquired title by adverse possession because time could only run from when the defendants abandoned their plans for the road. In effect, whether there was adverse possession was held to depend on the owner’s state of mind.

This rule, where adverse possession depended on the owner’s state of mind was rejected by the Court of Appeal in Buckinghamshire CC. v Moran [1990] Ch 623. A strip of land had been reserved by the council for a road diversion for many years, although nothing separated the strip from the adjoining house that the plaintiff, Moran, bought in 1971. He padlocked the only access to the strip and exercised complete control of it until 1985, when the council sued to recover it. It was held that he had demonstrated an intention to possess the plot that overrode the council’s future intended use of it. The Court of Appeal held that the issue was the intention of the squatter not that of the paper title owner. Here, the squatter was well aware of the future intentions of the council, but that was not the point.

An important case in this area is Pye v Graham [2002]3 WLR 221 (see above) where the House of Lords held that only very occasionally would the fact that there was an intended future use prevent adverse possession.

Adverse possession and residential buildings

Section 144(1) Legal Aid, Sentencing and Punishment of Offenders Act 2012 makes it a criminal offence to squat in a residential building. The Act came into force on 1 September 2012. In the case of Best, R (On the Application Of) v Chief Land Registrar [2015] EWCA Civ 17 the Court of Appeal confirmed the relationship between section 144(1) Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the law on adverse possession.

In the case of Best, R (On the Application Of) v Chief Land Registrar [2015] EWCA Civ 17: Mr. Best applied to the Land Registry to be registered as the owner of a residential property on the grounds of adverse possession. The Land Registry rejected Mr Best’s application on the basis it relied on periods of adverse possession involving a criminal offence under section 144(1). In rejecting the application, the Land Registry pointed to earlier case law which suggested criminal acts cannot be relied on in support of claims for adverse possession.

In its decision, the Court of Appeal confirmed that the aim of section 144(1) is to make it easier for owners of residential buildings to remove squatters and not to change the law on adverse possession. A squatter who remains in occupation of a residential building long enough to bring a claim for adverse possession, can still rely on that occupation, despite the fact it involves a criminal offence, when applying to the Land Registry.

Complete the following activities: 1. Listen to the podcast below. Podcast
Transcript

2. Using WestLaw, research the pros and cons of adverse possession.
3. Do you agree with adverse possession? Post your answers with full reasons supported by relevant case law and legislation to the lesson discussion forum and post responses to other students’ posts.

Human rights

It was argued in Pye v UK [2007] ECHR 700 that the law on adverse possession was incompatible with Article 1, Protocol 1, European Convention on Human Rights 1950 (enacted into English Law by the Human Rights Act of 1998). However, The Grand Chamber held that principles of adverse possession are compatible with the Convention.

One further human rights challenge has been made. In Ofulue v Bossert [2008] EWCA Civ 7, the Court of Appeal dismissed a claim by the owner that his human rights had been violated under Article 1 of Protocol 1. The court applied Pye v UK [2007] ECHR 700 and held that it should be followed unless there were exceptional reasons for not following it and there were no such reasons here.

The decision in Pye Ltd v UK [2007] ECHR 700 effectively prevents any landowner from pleading violation of their human rights as a defence to a claim by a squatter. The only possibility of pleading violation of one’s human rights would be to show that there are exceptional circumstances.

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