Adverse posession


Squatter's rights

Saying someone is a squatter ususally satisfies the requirements for adverse posession. It is held that if a land owner has not used his land for quite some time- then there is no harm in someone using it. 

Honest squatters- 1. Sometimes, you can accidently adversely posess the land. 

How to get a title1. Ownership of land: -- For unregistered land, freehold ownership is extinguished when the squatter is in posession for 12 years. Automatically, this elevates the right of a squatter to the right of an owner.-- For registered land, the new regime under the LRA 2002 says a squatter does not automatically acquire the right to be registered as proprietor of the land by virtue of a period of adverse posession. He can apply for adverse posession after 10 years. 

Mortgages- the old rule continues to apply in the cases where a mortgagor remains in posession after a mortgagee acquires the right to enforce a mortgage. --- National WM Bank Plc v Ashe- a homeowner was granted a second mortgage to secure a debt to the bank, the mortgage gave the bank an immediate right to posession. The homeowner became bankrupt and defaulted in making repayments, but the bank took no action for over 12 years. H: Homeowners posession was adverse against the bank,so at the end of the limitation period- the mortgage was auto extin.

AP is not applicable when a beneficiary wants to recover from trustee, statue- R V Land Reg

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What are the essential elements of adverse possess

  • There are 2 main requirements:
  • 1. There must be factual posession of the land.You can only claim posession if you have taken physical posession of the land. Under the provisions of the Limitation Act- 1980-  person claiming an interest by AP will only be entitled to claim that his posession was adverse from the date that the true owner was disposessed or discountinued his posession. -- Treoar v Nute Sir John- the person claiming claiming posession must show either (1) discontinuance by the paper owner followed by posesson or (2) disposession of the paper owner.
  • --- This depends on the nature of the land- There must be EXCLUSIVE physical control of the land.
  • ---Slade LJ in Powell v McFarlene- 'factual posession signifies an appropriate degree of physical control'. -- Fencing etc: Seddon v Smith, Cockburn LJ: 'enclosure is the strongest possible evidence of adverse posession'.This was the case in Buckinghamshire CC v Moran where the claimant had completely enclosed an area belonging to the council with fences etc. 
  • -- In PYE v Graham- HoL held that the requirement of factual posession was satisfied where the D had farmed land belonging to claimaints including grazing cattle, re seeding the land, trimming hedges etc. Onwers physically excluded from the land by the hedges and the lack of any key to the road gate giving access. HOWEVER- it is held that fencing is not essential for AP. -- Pilford- held that u should be able to show the acts amount to physical custody. 
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Essential requirements for AP pt 2

  • The posession must be exclusive. The claimant must have been in posession to the exclusion of the paper owneer and all other with a claim of posession. -- Leigh v Jack: the person claiming adverse posession had used land for the storage of other materials and the owner had also made occasional use of the land. H: The claim to adverse posession had failed because the claimant never had exclusion to the owner. 
  • Posession must be adverse in the interests of the owner- The claimant must be excercising factual posesion of the land as tresspasser, rather than someone who is entitled because he had the permission of the owner to ccupy the land. So a tenant can not claim adverse posession. Allen v Mathews- posession was held to be adverse because a person had been given limited permission to use a yard for storage had gotten AP because he had exceeded the permission in both degree and nature. 
  • Implied permission- a licence may be implied where this is justified by the facts. In Wallis Cayton Bay Holiday Camp- a farm sold land to a petroleum company which wanted to use it for the construction of a filling station in the future when a new road had been built- the road had not been built and the farmer used the land in a variety of ways including extending his caravan park. The company tried to take action but Denning said there was an implied licence. 
  • Mistaken beliefs about permission- When the squatter thinks he has permission-- Ofufle v Boosert- thought he was a tenant couldn't have AP because owner hadn't given cons 2 permi.Also, posession must be open and unconcealed- anyone can know. 
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Intention to possess land

- Just because someone enjoys factual posession of the land adverse to the interests of the owner is not enough to amount to enjoying the owners title. 

He must show 'AMINUS POSSIDENDI' and Pye v Graham it was held there was no need for a squatter to show an intention to posess the land in order to gain title by means of adverse posession- all that was required was to demonstrate an intention to posess. 

2. Intention to exclude the world at large- The intention to posess can be shown with the intention to exclude the world largely as far as it is reasonable. This is where the squatter closes off land so no one else can acess it. - Buckinghamshire v CC Moran- physical enclosure of the land is itself prima facie the requisite of animus possendi'. 

- Powell v Mcfarlene- a claim for adverse posession had been made where a boy had started grazing his cow on the land in question at the age of 14. Slade J- he didn't neccesarily exclude the true owner from the land. He considered the compelling evidence of an intn to posess would be neccesary where the claimants use of the land did not itself indicate.

True owner has an intention to use the land- Leigh v Jack- claimant had stored scrap metal on land which he knew was suppose to be used in the future by its owners. Held- didn't dispossese owner and his knowledge of intended future use didn't mean he was a tresspaser. 

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Squatter's recognition of owners right to land

  • Big issue in Pye v Oxford was if requisite intention could be established to whether an intention to posess could be established where the defendant was willing to pay the owner to occupy the land if the owner had asked for payment. 
  • - The D had first entered into occupying the land which had 4 fields under a written agreement permitting a request to graze cattle. 
  • - When the agreement ended, the owners refused to renew the agreement because they had sought different planning agreement for the land.
  • D's stayed in occupation and it was held that the sqautters willingness to pay for his occupation didn't show an intention to posess. Browne Wilkinson also pointed out how the D had not stayed in occupation the same way as he had under the grazing agreement. He had done things on the land which he would have probably had no right to do anyway.

Interupting Adverse Posession:- Adverse posession will come to an end if the squatter stops the posession.- Disposession is when the paper owner evicts of gets rid of the quatter. However, it's not enough for the paper owner to interrupt posession by making an oral demand, even written demands can be insufficient. 

  • Limitation ACT 1980- s29 says that if the squatter acknowledges titlte of registered or paper owner, time starts running from that date. s30- acknowledgement in writing. 
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The adverse possession of registered land

  • When a squatter has adversely posessed for over 10 years (essential) then under sch 2 paragrap 1 (1) he may apply to the registrate to be registered as a properitor. No applications can be made once the paper owner has commended for proceedings for posession. 
  • Notice of a squatters application- if squatter applies to be registered as the proprietor of freehold estate of the land, the registrar must give notice of the application to the persons who would be affected by such registration. In reference to freehold estates- notice must also be given. 
  • -The purpose of giving a notice is not enable any interested parties to object ot the registration of the sqautter as proprietor. 
  • Objection to registration- 1. dispute the eligibility of the applicant to make the application because he hasnt been in AP and is subject to a posession order, or because the proprietor has a mental disability. 2. getting the application to be dealth with by the registrar. 
  • If there is no objection- there is no issue.
  • When can objection be overriden? 1. When the registered proprietor is estopped from disposseing the squatter which is governed by s 5 (2) by equity and the circumstances mean the squatter has to be P. 2. The applicant for any other reason is to be reg as proprietor p 5 (3)
  • -4. Boundary dispute- para (5) 4- the land posessed originally belonged to squatter. 1. Where land is adjacent to land belong to S. 2. Exact boundary line not determined. 3. 10 years S believed land was his. 
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How do judge boundary disputes

1. Reasonable belief:

- Not enough to sa that the adverse posessor has a honst belief he's entitled to the land. THE BELIEF HAS TO BE REASONABLE. 

-Iam Group v Chowdhury- the respondent bought a shop with a rambling layout, he did not realise that part of the top floor which extended to the property next door was not included in the purchase. He used the space for over 10 years without objection from claimants. H- he had been in AP. Only issue was if his belief could amount to owning the freehold was reasonable because any solicitor would amount to not owning it. CofA was not concerned with this- they said it was the AP's belief that was the issue.

When is reasonably judging?

- Zarb v Parry- 10 year belief. 

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Unregistered AP

  • The squatter gets good after 12 years of AP. 
  • -Squatter can get goods simply by posessing it for the needed period of time. When land has been AP for 12yrs or more, the owner can not take any action against.
  • Squatter must be able to show continous posession of 12 yrs.
  • -Markfield v Evans- AP had been running since 1979

AP of freehold title:

- The general rule is that where land is subject to a lease then the tenant enjoys posession of the land whilst the landlord keeps the freehold title. Any AP is only therefore adverse to the interests of the tenant and not the freeholder whilst the lease stays in force.

- Registered lease- any claim based on AP angaisnt the tenant will be subejct to the same principles as apply to the freehold since AP does not in fact end the tenants title until the statutory proceedure has been completed. 

- Unregistered lease-where the leashold interest has not been registed, the old unregisted land rules of AP apply. 

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