Topic: 3: Adverse Possession

Introduction:

A set of rules that offers an opportunity to a mere trespasser actually to acquire a better
title to land than the person who “legally” owns it and to whom it was once formally
conveyed with all of the solemnity of a deed or registered disposition.

Rationale for AP:

Historically, the common law always has been more concerned with the development of
remedies for concrete situations rather than the formulation of abstract rights, and what
appears to be a lack of regard for the ‘rights’ of the paper owner is actually a reflection of a
practical concern about how landowners can take action against those compromising use of
their own land. So even allowing for the radical approach of LRA 2002, the doctrine can be
justified on substantial grounds.

a. In terms of legal process, AP is an expression of a policy that denies legal assistance

to those who sleep on their rights, as well as ensuring that there is an end to
disputes concerning ownership of land.
b. Land is finite and scarce resource and the principles of AP can help to ensure its full
economic and / or social utilisation as in Hounslow v Minchinton.
c. No complete registration in UK
d. Recirculation of lands, for example almost 100k empty property in London alone in
2016
e. Facilitate investigation of titles

Establishing AP:

In order to make a successful claim for adverse possession in both registered and
unregistered land, the squatter must demonstrate that they were in factual possession
where the possession must be adverse for the requisite period of time and that they had the
intention to possess. This was established in Powell v McFarlane (1977) and affirmed in Pye
v Graham [2003]

In simple terms, claims of AP require three specific things. Which are:

1. Possession (factual+animous)
2. Possession must be adverse
3. Required time period must be fulfilled.

Factual Possession:

What constitutes factual possession will differ depending on the nature of the land. The possession
must be exclusive and adverse. Furthermore, according to the case of Pye, one should not seek to
over conceptualise what is adverse and what is not, but ask ourselves the simple ordinary question
of is the claimant in possession of the land without the permission of the landowner?

The possession of land depends on the nature of the land as can be seen in the case of Lord
Advocate v Lord Lovat which was a case concerned fishing rights over 30 miles of river. Lord
O’Hagan said that, "As to possession, it must be considered in every case with reference to the
peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to
prove it in another. The character and value of the property, the suitable and natural mode of using
it, the course of conduct which the proprietor might reasonably be expected to follow with a due
regard to his own interests - all these things, greatly varying as they must, under various conditions,
are to be taken into account in determining the sufficiency of a possession."

Factual possession requires a sufficient degree of physical control. It involves dealing with the land as
an occupying owner would and no one else has done so.

Case: Powell v McFarlane

Powell, aged 14 lived on his grandfather’s farm, McFarlane owned land adjacent to the farm. He
moved overseas and Powell started making use of the land by grazing a cow and a goat there. He
also used the land for shooting and undertook repairs on the fence. These activities took place
sporadically for a period in excess of 12 years. The court held that, his action was not sufficient to
amount to factual possession. Slade J mentioned that,

1. If the law is to attribute possession of land to a person who can establish no paper title to
possession, he must be shown to have both factual possession and the requisite intention to
possess ("animus possidendi").
2. Factual possession signifies an appropriate degree of physical control. It must be a single and
[exclusive] possession, though there can be a single possession exercised by or on behalf of
several persons jointly. Thus an owner of land and a person intruding on that land without
his consent cannot both be in possession of the land at the same time. The question what
acts constitute a sufficient degree of exclusive physical control must depend on the
circumstances, in particular the nature of the land and the manner in which land of that
nature is commonly used or enjoyed. …. Everything must depend on the particular
circumstances, but broadly, I think what must be shown as constituting factual possession is
that the alleged possessor has been dealing with the land in question as an occupying owner
might have been expected to deal with it and that no-one else has done so."

Some instances of factual possession include:

a. Grazing sheep on quarry land was sufficient in the case of Williams v Jones
b. Shooting over marsh land: Case: Red House Farms v Catchpole
The squatter used land adjacent to his own for the purpose of shooting wildfowl. The land
was separated by a river. Due to the nature of the land this was sufficient to constitute
factual possession of the land.
It indicates that, small acts of custody and control might suffice if the land was abandoned, is
inaccessible by the paper owner or is of such quality that it does not readily admit sufficient
possessory acts.
 c. Putting up notices and granting licences to shoot: Walker v Burton
d. Fencing the land off will generally be indicative of factual possession.
Case: Williams v Usherwood (1983)
Two houses were built with a shared driveway. Ownership of the driveway was split, and
each of the owners given rights of way over that part of the driveway in the other's
ownership. Because of the layout of the houses, the driveway was only of practical use to
one owner, who (in 1935) erected a fence separating the entire driveway from the other
house. The owners of the dominant tenement never exercised the right of way as such.
Ownership of the dominant tenement changed in 1937 and both owners thereafter treated
the fence as the boundary between the properties. The Court of Appeal held that in those
circumstances the defendant had acquired adverse possession of that part of the driveway
not already owned by him, and that the plaintiff's predecessor in title had abandoned the
right of way in about 1937 when she evinced an intention only to use an alternative
driveway for access to her property.

However, in some instances fencing has not been sufficient to give rise to factual possession.
Case: Boosey v Davis (1988)
Mr & Ms Boosey had used land belonging to Mr Davis for grazing goats on a few occasions.
They had cut down scrub and erected a mesh fence to facilitate the grazing. Court held that,
the erection of the fence was to keep the goats in not to keep others out and the actions of
Mr & Mrs Boosey did not give rise to adverse possession of the land.

Intention to Possess (Animus Possidendi):

Once the squatter has established they were in factual possession, they must also demonstrate that
they had intention to possess. The squatter must have the intention to exclude the world at large
including the paper owner.

In the case of Powell, Slade J mentioned that, “the intention to exclude the world at large, including
the owner with the paper title, so far as is reasonably practicable and so far 7 so far as the process of
the law will allow”.

In the case of Pye, Pye owned Henwick manor and a substantial amount of land. In 1977 he sold off
the farmhouse and some of the land and retained the disputed land, which consisted of four fields,
with a view to develop it in the future. There was an agreement with the buyer of the farmhouse to
graze on the disputed land. In 1982 The Grahams purchased the farmhouse and in 1983 entered an
annual grazing agreement in respect of the disputed land for which they paid £2,000. The following
year, Pye refused to renew the agreement as he wished to apply for planning permission and
thought it would be easier if the land was not in use. The Grahams were asked to vacate the land at
the end of the agreement. However, the Grahams continued to occupy the land which was fully
enclosed and the gate padlocked with a key being held by the Grahams. Pye never did apply for
planning permission. The Grahams continued to use the land and the following year requested a
new agreement but this was not accepted. The Grahams continued to use the land and gave up
seeking to communicate with Pye as he was getting no reply to any correspondence. In 1999 Pye
issued proceedings to gain possession of the land.
Held: Pye’s claim was defeated by adverse possession of the Grahams. The Grahams were in factual
possession of the land as they were in occupation and had exclusive physical control. Pye was
physically excluded from the land by the hedges and lack of key. They farmed the land in the exact
way they farmed their own land. By remaining in possession and using the land in the way they
thought best they had demonstrated an intention to possess. The fact that the Grahams were aware
of Pye's intended use of the property did not prevent them having the requisite intention to possess.
The law on adverse possession does not infringe the European Convention of Human Rights.

Instances:

a. A person with a mistaken belief in permission can have the necessary intent to possess.
In the case of Wretham V Ross, David Richards J held that a squatter who has the erroneous
belief that he has the consent of the owner does have the intention to possess.
The same thing can be seen in the case of Lodge v Wakefield.
b. Installing and locking gate as can be seen in the case of Buckinghamshire CC v Moran.

Possession must be adverse:

The squatter must be in factual possession as a trespasser. If they have permission to be on the land,
the possession is not adverse. If a person exceeds their permission this may be classes as adverse.

In the case of Leigh v Jack, Bramwell LJ said in the obiter that, a squatter’s possession of land was
only inconsistent with the owner’s plans for the land. But In the case of Moran, it was held that,
There was no special rule of law that an owner of land who intended to use it for a particular
purpose at some future date could not lose title to a squatter whose acts did not substantially
interfere with the owners plans for future use. Where a claimant could demonstrate factual
possession and an intention exclude the world at large, including the paper owner, he could
establish adverse possession whether or not he was aware of the owner’s planned use of the
property. Lord Browne-Wilkinson in the case of Pye, rejected Leigh and affirming the position in
Moron.

Possession lasting for prescribed time:

-3rd requirement is time limit, different for

a. Unregistered land
b. Registered land governed by LRA 25 (AP is completed before LRA02 comes into force)
c. Registered land governed by LRA 02.

-common rules governing time for unregistered and registered land under LRA 25

a. S15 Limitations Act 1980: 12 years, exceptions:

‘Sole’ charitable corporation-30 years
 The crown-30 years
Extension of limitation time is possible if paper owner is subject to ‘disability’
b. Schedule 1 paragraph 1 Limitations Act 80- time will start running once paper owner has
been ‘dispossessed’ and ‘adverse possession’ taken up by the squatter. Can be seen in
the case of Pye.
c. Factors that will stop time running:
-express/implied approval of squatter’s action of possession (license/ express written
acknowledgement of the paper owner’s title s29 and 30 of LA 1980)
-express/implied rejection of squatter’s action of possession
-owner initiate proceedings
-squatter’s possession is interrupted
d. An intention to purchase the land or pay for the use does not invalidate intention to
possess following the case of Moran.

AP in unregistered land:

Where the land is unregistered, the squatter acquires good title to the land after being in adverse
possession for 12 years. S 15 Limitations Act 1080 prevents the owner taking action against the
squatter after 12 years of adverse possession.