Adverse Possession

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  • Created by: ag0319
  • Created on: 15-05-16 16:46

Content Requirements

Someone claiming adverse possession must show they have factual/ actual possession of the land, an intention to possess, and the absence of consent of the paper owner: Powell v McFarlane (as approved in JA Pye v Graham)

1. Factual/ Actual Possession

2. An Intention to Possess

3. Absence of Consent of the Paper Owner

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Factual Possession

The court will look at how the land has been dealt with:

Padlocking a gate which provided the only entrance was evidence of factual possession in Buckinghamshire CC v Moran

Building a fence to enclose the land in George Wimpey v Sohn

It is not 'mere use', but must be 'possession': Dyer v Terry

Not 'trivial acts of trespass' such as children playing or ponies grazing in Tecbild v Chamberlain.

Acts done by a tenant are presumed to be done for the benefit of a landlord: Kingsmill v Millard

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Intention to Possess

An intention to possess requires showing that there was an intention to exclude the world at large.

There only needs to be an intention to possess, it is irrelevant that the squatter never intended to acquire title: Buckinghamshire CC v Moran

The young age of the squatter in JA Pye v Graham meant that the courts held there could not be an intention to possess

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Absence of Consent of the Paper Owner

The paper owner cannot have consented to the use of the land

Where there is a lease or licence, there is consent, adverse possession begins once the lease or licence has expired. 

The use of the land cannot be covert, they must be discoverable upon reasonable inspection of the land.

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Time Requirements

The amount of time that must be spent on the land as an adverse possessor to have a successful claim depends upon which Act applies.

Limitation Act 1980 requires the adverse possessor to have been on the land (meeting the requirements listed previously) for 12 years to have a successful claim.
In normal land this requires 12 years: s.15 LA 1980
Land belonging to the Crown requires 30 years (60 years if foreshore)
Where a tenancy is in place, the adverse possessor must complete 12 years against the tenant, and a further 12 years against the landlord once the lease has expired: Chung Ping Kwang v Lam Island

The Act applies in all cases where unregistered land is concerned and to registered land where the period of 12 years of adverse possession has been completed before the 13/10/2003.

Land Registration Act 2002 requires the adverse possessor to have been on the land (meeting the requirements listed previously) for 10 years to have a successful claim

(further requirements for LRA 2002 claims listed next)

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Land Registration Act 2002 AP claims

Land Registration Act 2002 

Claims under this Act are for registered land and require 10 years of adverse possession. 

The AP must apply to the Land Registry for registration. It is the Land Registry, not the courts, who determine whether there is a claim: Swan Housing Association v Gill.

If the Registrar believes a claim exists, they will send notice to all interested parties (e.g. owner, tenant, mortgagee), these parties then have two-years in which to act: Schedule 5, paragraph 2.

Those sent notice can either consent, in which the AP will be registered; they can ignore; they can object the validity of the claim; or serve counter-notice. In that instance the AP will not be registered unless proprietary estoppel applies, there is a boundary dispute which is reasonable (reasonable even if there is a known dispute (Zarb v Perry) and 'reasonable' to the AP (IAM Group v Choudry)), or some other reason: Schedule 5, paragraph 5.

If no action is taken, after two years the AP can apply again for registration and this will be granted, despite any objection from the paper-owner.

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Limitation Act 1980: AP Claims

The paper-owner has the ability to 'stop and clock' the adverse possession by granting consent, granting a licence/ lease, revealing fraud, misconduct, etc. When this is done the period of adverse possession ends and the time is restarted.

The Limitation Act 1980 allows a successful claim of AP much more easily. After 12 years of adverse possession, the paper owners title will be extinguished and they will be time-barred from acting.

The AP can then register with possessory title, and after a further 12 years, can then have this title upgraded to absolute title.

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Criminal Offence

s.144 Legal Aid, Sentencing, and Punishment of Offenders Act (LASPO) 2012

It is a crime is a person enters a 'dwelling house' as a trespasser, knowing/ ought to know they are a trespasser, with the intention to stay for a period of time.

However, Best v Chief Registrar of the Land Registry shows that the Act does not have an effect on the ability to make a claim of adverse possession.

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Human Rights

Article 8 ECHR (right to private and family life)

An adverse possessor without title cannot argue that their Art 8 rights have been breached because the paper-owner is allowed to exercise their rights of possession: Manchester CC v Pinnock/ Malik v Fassenfelt (exceptional circumstances may be different).

Article 1 of Protocol 1 ECHR (right to peaceful possession)

An adverse possessor who successful acquires titles cannot be removed by the paper-owner arguing their Article 1 of Protocol 1 rights have been breached. English law provides sufficient protection for them to have prevented a successful claim: JA Pye v Graham (as apporoved in Ofulue v Bossert).

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Effect of Rights on Adverse Possessor

Any rights that existed over the land remain and the adverse possessor is bound by them, except for a mortgage.

An adverse possessor who deprives a leaseholder of a registered lease becomes the registered proprietor of that lease.

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