SUBJECT: LAW OF PROPERTY

KOMILLA CHADHA

Adverse Possession
What is adverse possession
1. 2. 3.

Adverse possession can be explained as the process of possession that changes the ownership of land from the paper owner to the possessor. It arises out of the s.15 (1) Limitation Act 1980. What is needed to establish adverse possession? the land e.g. that may include fencing and locking the land.

Factual Possession - where there is strong physical evidence that somebody is in possession of

In Powell v McFarlane, Slade J provides an in-depth explanation on what factual possession means. This explanation was accepted by the House of Lords in Pye v Graham, here the judges reinforced the need for appropriate degree of physical control to count as factual possession. Contrast this to Tecblid v Chamberlin Ltd where children playing on the land and tethering of ponies was not sucient. Important to ask is the land being possessed or merely used for prots as in Powell v McFarlane.
Animus Possidendi - an intention to possess . How do we prove this? The actions by which the owner has made the intention clear, Buckinghamshire CC v

Morgan 1990 and Powell v McFarlane 1977 Co Ltd v Waterloo Real Estate Inc [1999]

Armation that outward conduct is demonstration of intent, Prudential Assurance Land must be used for the squatters advantage and locking/blocking access to land is

an indenite evidence for the intention to possess and factual possess, Buckinghamshire CC v Morgan 1990, Pye v Graham 2003 and Powell v McFarlane 1977 that you own the land combined with factual possession was sucient to prove that adverse possession had taken place.

Key is intention to possess not acquire, in Lodge v Wakeeld 1995, the mistaken belief

Furthermore, in Pye v Graham it is made clear that if the possessor oers to pay rent or

agrees (so long as he actually hasnt given it), is ne for adverse possession because it is an intention to possess not acquire. distinction is made clear between the two. An example is provided; X is in occupation of a locked house which he has agreed to look after for a friend, whilst friend is away. He may have factual possession but the intention which is very much linked to the third requirement is missing and thus cannot be adverse possession.

Often, intention is intertwined with factual possession but in Pye v Graham, the

(Possession must be adverse as with consent that would not be adverse possession)

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4.

If however, the paper owner forced you o the land, or decides to enter into a licensing agreement then adverse possession is no longer possible. This is because in the rst case the squatter fails to assert a better claim and in the second the possession will no longer be adverse. It was actually the case of Leigh v Jack which was held in Beaulane Properties Ltd v Palmer that the old doctrine stated the use must be dierent to the paper owners. This was of course rejected in Pye v Graham where the notion of an implied license was too. The justication for adverse possession lied in the Lockean principle that if you mix your labour with resources then the end product should become yours. It is important to note that, even derivative title at some point came from an original source which was possession so adverse possessors arent some distasteful sect of society we should shun, so some argue. Lord Brown-Wilkinson, makes this point clear in Pye v Graham 2002. He says that much confusion would be avoided if we didnt refer to adverse possessors as those who behave badly - it is just possession and the process of possession creating title. It is similar to a licensee where temporary possession is given not future rights. From a Human Rights prospectus it was found that adverse possession does not infringe human rights in Pye v Graham, as adverse possession was justied control of use of land than a deprivation of possession and was within margin of appreciation. Another point is that under Article 8 of ECHR sometimes arguments can be made that English law breaches the right to respect for home and family by not allowing adverse possession. In registered land, any rights in the course of being acquired by adverse possession count as overriding interests which means that any third party purchaser say, is also bound by the rights of the possessor.

5.

6. 7.

8.

9.

What is the procedure adverse possession?

1.

The future rights of an adverse possessor arise out of the Limitation Act 1980 s.15 (1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it rst accrued to some person through whom he claims, to that person. First adverse possession must be established via factual possession and animus possidenti. Then identify if the land is registered or unregistered Then identify is the adverse possession is a case pre-2003 or post 2003 If it is pre-2003 and unregistered, after 12 years the land automatically becomes the adverse possessors under s17 of The Limitation Act. If it is pre-2003 and registered, after 12 years, the land is held on trust under s75 Land Registration Act, an extra three years is required for procedural reasons and after 15 years the possessory title is changed. If the 12 years end after 2003, the unregistered rules do not change. If the 12 years end after 2003 and the land is registered, after 10 years the adverse possessor can apply to the land registry and the paper owner is given 65 working days to respond. If he does not respond, then the land becomes the squatters otherwise the owner is given two years to chuck the squatters out. In September 2012, criminalization of adverse possession in residential areas can into form. made where the registered propriatrator is mentally disabled, ill or abroad does not matter.

2. 3. 4. 5. 6.

7. 8.

9.

10. Also note that under LRA 2006 Sch 6 para 8(2) no application for adverse possession can be

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SUBJECT: LAW OF PROPERTY

KOMILLA CHADHA

Title

1. 2.

The degree of interest in something against the world, that someone holds, is referred to as title. In the English legal system, only relative titles can be found. This means that your title only denotes your interests relative to others title, even in the case of a fee simple, the title of the owner is relative to that of the Crown. Title is an important part of adverse possession, this is because adverse possession can be the root the to title. So it is important to understand the end result from successful adverse possession. We can classify the root of title as derivative or original. Derivative title is a title that derives its existence from a preexisting title whereas an original title is one where there exist no prior title. Adverse possession leads to the creation of an original title as titles that derive their existence from possession not a prior title are original. In the case of registered land, title is proved by looking at the register (this can also apply to other types of properties like cars and shares). Where unregistered land is concerned, provenance is used to prove a sound a title. This means that you have to prove an unbroken chain of ownership for the last 15 years. Of course, you can see the problem this brought especially with human error and so that is why registration is not only compulsory but is the preferred method. To prove title is money and chattels is dierent, however. Titles referring to chattels are proved by who is in possession of the chattel, this is because it would be costly to register every transition of the chattel. Furthermore, money is also proved by who is in possession of it and this is again for practicality issues, as you can imagine if every transaction involving money had to noted in a registered. Nemo dat quad non habet, a latin principle essentially means that one cannot give what they do not have. So one cannot give a title they do not own. This is important because land tends to have multiple title holders, all with dierent interests, this principle ensures that one cannot give a title that they do not have. Of course, this is dierent with money as ownership is reected in possession and so it on the basis of possession that transactions take place. The important case when demonstrating the nemo dat principle is Bruton v Quadrant Housing Trust which shows that the principle was so crucial that courts created a new type of property interest non-proprietary lease

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3.

4.

5.

6.

7.

8.

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9.

In an unregistered land system, the nemo dat rule governs title. However since the Land Registration Act 2002, the nemo dat principle has become largely redundant. This is because the registered land system moves more towards a system of absolute ownership, which is that the registered owner has the best title against anyone else in world regardless of whether it was by mistake or fraud that they became a registered owner. such as mistakes with title that occur due to human error or fraud.

10. It is important to note that in the case os registration, this can sometimes lead to unjust results 11. English law struggles to deal with the conceptual issues surrounding ownership and that is

why instead of looking at absolute ownership, we look at relative ownership on the premise of possession and title.

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Cases
Here you will a summary of all the cases I have referred to in the study pack.
Buckinghamshire CC V Morgan [1990] Facts: The claimants bought a property with a plan to build a road on it. The defendant who was a

neighboring landowner, cultivated and treated the councils land as his own and used it as a garden. Some 30 years late the authorities returned to the property with a view to build on it but they were stopped.
Judgement:

The Court of Appeal prevented the authority of building on the land as they stated it had been adversely possessed. The defendant was not obliged to show he had intended to adversely possess the property indenitely as he had showed factual possession by fencing of the land and only have the exclusive possession to the key which allowed one to enter the land.
Importance:

Previously, the adverse possessor not only had to prove physical possession but that somehow the possession was adverse and this was done through looking at the intention of the parties. However, in this case the court found it unnecessary to see if intention was present as the factual possession was sucient to prove intention. It is important to note that the fact that the paper owner had a future intended use for a road did not stop defendant from adversly possessing the land unlike in Walliss Cayton Bay Holiday Camp Ltd v Shell-Mex and BP ltd where the future intended use and the implied license rationale led to the judgement that adverse possession had not taken place.
Pye JA V Graham [2003] Facts: The claimants allowed the defendant to use the land under a contract for grazing. The

document expressly said that after a certain date the agreement would not be a valid and another contract would need to be drawn up for the grazing to continue. After attempts to establish another contract, the defendants continued to use the land for grazing and after 12 years sough to adversely possess the land.
Judgement:

The High Courts ruled that the land was adversely possessed under the Land Registration Act 2002. The Court of Appeal overturned this decision because they said the grazing existed because of the contractual agreement and it did not show possession of the land. The House of Lords, however, returned back to the High Courts decision saying the land was adversely possessed and led to the creation of the Land Registration Act which stated that all adverse possession must now be registered.
Importance:

It is a great case for demonstrating exactly what is meant by factual possession of the land, which is that there must be an ability to exclude the paper owner which the defendants could do as they fenced o parts of the land and retained the keys to those parts. Furthermore, the earmarking of land for furture use will one in rare circumstance be used to argue against adverse possession.
Powell v McFarlane 1977 Facts: The claimant claimed to have been in adverse possession of some land in surrey since 1956

(when he was 14) as he grazed the family cow on that land. The fee simple registered owner the defendant bought the land in 1952. As a child he persuaded his grandparents to write to the defendant there is no evidence or a response or that he ever received the letter. Regardless, he begin using the eld. Once the family cow died he used the eld to advertise his business and as a car park for his business. McFarlane had no idea of this and because of his work postings sent his wife to check up on the land. She noticed a sign board and no sign of activity and as the board did no harm
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did not report or question it. Later, she noticed new fencing and realized what was happening and the claimant responded by saying he had adversely possessed the land.
Judgement:

In deciding whether the claimant has acquired possession, the courts assessed the signicance of what he had done to the eld. Slade LJ laid a few physical feautures which as indenately count as factual possession; cultivation of agricultural land, enclousure, notice to keep intruders o and locking or blocking the only means of access. The plainti did not do any of these things but rather he gained prots from the plant by grazing his cow and possibly goat. The nature of the actvity is as such that would not require him or his animal to be there everyday. Furthermore, he himself owned no land in close promixity or any land at all for that manner. He was deemed not be in possession. It is largely unimportant the ignorance presented by the paper owner as an adverse possesor seeking to take in land must show at least to some extent his intention which was not done so.
Importance:

It is a great case for demonstrating exactly what is meant by factual possession of the land, Slade LJ stresses that factualpossession is necessary for demonstrating animus possendenti.
Prudential Assurance Co Ltd v Waterloo Real Estate Inc 1999 Facts: The claiment appealed a decision that rendered aa party wall to be wholly possessed by the

claiment and so the paper owner. The defendant was already the paper owner of the northern side and claimed to have adversely possessed the southern side. The claiment argued that the criteria for adverse possession should not be limited to the Powell factual possession and that it should be extended to the knowledge of the paper owner. The defendant argued that he only needed to make hos intention to the world not the paper owner.
Judgement:

Dismissing the appeal, the court argued that conduct was dierent to the assertion of rights it was an outward demonstration of an intention to possess and treat the land as their own which the defendants had clearly done.
Importance:

Follow on from Powell case.

Parker v British Airways Board 1982 Facts: An air passenger found a gold bracelet in the international executive lounge of an airport.

The lounge was leased to the defendants. When the gold bracelet was handed in, the plainti requested that it be returned to him had the true owner not been found.The defendants sold the bracelet for 850 as the true owner was not found and kept the returns. The plainti appealed.
Judgement:

The court of appeal said that the air passenger had a better right to the gold bracelet than the occupiers - British Airways Board, because it was found that the Board did not have a policy of searching for lost articles. The plainti was awarded 850 in damages and 50 in interest.
Importance:

The plainti in taking the bracelet into his care and control acquired possession which was against everyone but the true owner. By handing it in he acted honestly discharging his duties of a nder. The only way the defendants could demonstrate an interest is if they showed such care and control over the things in the lounge which looking at their policy they did not.
Waverly BC v Fletcher 1996
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Facts: The defendent was using a metal detector in a park owned by the claiment council and

found a broach. He reported the broach and the Corner decided that the broach was not a treasure trove. The issue then was who did he broach belong to?
Judgement:

The Court of Appeal held that the claiment had a better right to the broach as it was found within the land, it was attached to the land rather than on the surface. It belonged to the party who owned the soil.
Importance:

This and the Parker case are cases which show that possession of a good is not sucient, whether the owner has exercised contract and the positioning of chattels is important too. They are a good cases to compare adverse possession too.
Walliiss Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd 1974 Facts: The plaintis had a holiday camp and the defendants had adjoining land which they had no

use for in the present, but plan to in the future. The plaintis farmed the defendants land for 10 years and then used it for the purposes of their holiday camp. After 12 years, the defendant realised they could not use the land as intended and wrote to the planti oering to sell them but the plaintis ignored them as once the 12 years was complete they claimed adverse possession.
Judgement:

Adverse possession had not taken place. The mere fact that someone had entered land and used it for some seasonal purpose for more than 12 years was not sucient for adverse possession. The claiments were given a license or a permission from the defendant implicitly and thus possession was not adverse,
Importance:

This case is important in demonstrating the implied license doctrine which was reversed in the Limitation Act 1980 Sch 1 8(4).
Bruton v London and Quadrant Housing Trust 2000 Facts: The defendants were given a license for a property by the council to house homeless people.

The council retained limited access to the house as it was a license agreement. As the claiment was paying a weekly rent to the defendent he argued that under the Landlord and Tenant Act, the defendant had an obligation to repair the at. However, the defandant argued that nemo dat non quad habet, as they only had a license how could they possibly give out a lease.
Judgement:

The court ruled that the agreement looked more like a tenancy than a license and thus ruled that a non-proprietary lease had been created. This interest was seen more as an anomaly to try and not completely abolish the validity of the nemo dat principle.
Importance:

Some commentators suggest that the judgement was derived on policy grounds to protect individuals enjoying exclusive possession.
Re Cohen 1953 Facts: A husband and wife lived in the property of the wife. After both died (at dierent occassions)

banknotes in unusual pleaces such as kitchen cabinets were found.

Judgement:
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The courts said that this money should go to the wifes estate as she is the landowner, exercised control over the property even when the husband past away.
Importance:

This case estabilished the legal principle that the landowner, the person who possessed the land is also the owners of chattels found on it, subject to teh condition that possessionand control can be demonstrated.
Costello v Chief Constable of Derbyshire Constabularly 2001 Facts: The defendant seized a car from the plainti under statute as they believe the car to be stolen

because the true owner was unknown. However, the defendant never brought criminal proceedings and neither did they return the car.
Judgement:

The Court of Appeal ruled that police under statute had a possessionary title to the car for a speciced statutory period which had ended, and the planti whether he was the owner or not had a superior possessory claim to the car than the defendant as he demonstrated intention to possession and control of the car.
Importance:

In the English legal systems even the paper owners and those who acquire land through possession hold relative titles. If no one else, our titles will always be relative to the crown.In Australia, the British Crown had got Radical Title. This title was relative and that is why at the time it could exist alongside Native Title. However, the Crown transformed this into a full-benecial title by mixing their labour and thus extinguishing Native Title

Doctrine of Implied License

The doctrine of implied license was used to show why adverse possession could not taken place

if possession wasnt adverse i.e. against the wishes of the paper owner.

For example, if the use of the possessor was that of the use of the paper owner then the courts

used to believe that there was an implied license permitting possession and therefore could not be adverse. A non adverse possession related example is that when you allow a guest into your house there is an implied license that you give them permission to access your bathroom (you can already see the issues with the validity of this doctrine emerging). Shell-Mex and BP Ltd.

A example case which you will nd in cases section is Walliss Cayton Bay Holiday Camp Ltd v Sch 1 Para 8(4) Limitation Act 1980 reversed this by stating: For the purpose of determining

whether a person occupying any land is in adverse possession of the land it shall not be assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latters present or future enjoyment of the land.This provision shall not be taken as prejudicing a nding to the eect that a persons occupation of any land is by implied permission of the person entitled to the land in any case where such a nding is justied on the actual facts of the case.
Essentially what this legislation is saying is that this ctitious doctrine of implied license is no

longer to be assumed by law.

Problem Question 1
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Q: Fred owned a large field which he intended to develop into a retail development in the future. In 1994 Matt and Vicky climbed over the fence surrounding the field and pitched a tent. In 1995 they installed a gate in the fence, which they locked. In 1996 they made their home more permanent, using wood and plastic sheeting. In 1997 they are joined by their friends Nathan and Jasmin. In 2003 Matt and Vicky decide to emigrate, Nathan and Jasmin remain on in the home Nathan and Jasmin built. In 2008 Fred sells the field to Petra who wants to develop the land. They have found Nathan and Jasmin, who are refusing to move out. Who would own a collection of gold coins what Matt found when he was digging the foundations for the fence posts. They were hidden under a piece of wood in a rabbit warren. A: The issue here is who would the gold coins belong to Matt & Vicky, Petra or Nathan and Jasmin. This is dependent on whether the coins were found in a rabbit warren under the surface of the land or on top of the land (not annexed). It is likely that the coins were found underneath the land because rabbit warrens usually are found through a hole in the ground. However, let us rst consider if it was found on top of the land. This would render the coins a chattel and the typical rule is those in possession of the chattel are the owners so this would be Matts. For example, in Parker v British Airways board a gold bracelet found by a guest in an airport lounge was deemed to be the nders as the landowner did not exercise control and exclusive possession over the land and so the person with the possession was said to have a better claim. However, we must also consider that the coins may belong to the crown under the Treasure Trove Act 1996. If they t the criteria to classify as treasure then they would be deemed to belong to the Crown which is most probable as they are gold coins. However, as mentioned previously it more like that the coins were found under the ground. The general principle here is then that the item in concern belongs to the land as it is attached to the land. For example in Waverly v Fletcher, a claiment was using a metal detcher in a park and found a broach and as the broach was found under the surface it was said to be the landowners even though they did not exercise control over the land and in Elwes v Brigg Gas Co 1866, a prehistoric boat found undergroun was said to the landowners not the builders as it was found under the ground. This rule means that if the coins are found under the ground we must nd out who owns the land to see who is the owner. Again there are multiple parties involved, Petra will argue that as she has purchased the land she is the land owner but Nathan and Jasmin might argue they are the land owners as through Matt and Vicky they have adversely possessed the land. Adverse possession is a process whereby land ownership changes by virtue of possession of the land and derives its existence from the Limitation Act 1980 s.15. In this statute, it is stated that landowners have 12 years to bring a claim for a property. Primae Facie, Matt & Vicky moved in 1994 and as it is currently past 2006, it seems adverse possession has had the required possession for the land to transfer.

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However, in order to estabilish adverse possession there are three conditions which possessors must estabilish. The rst is that there has been factural possesion and by this we mean physical evidence and physical possession of the land. Powell v McFarlane is the case authority in which Slade LJ provides an in-dept judgement on what is meant by factual possession. He says it is not sucient for an induvidual to use the land for prots more than 12 years to count as possession, there must be strng evidence and there are few things that count as indenate evidence such as enclosure, locking or blocking only entrance to the land at all times from the world as well as the paper owner. In this case in 1995 a lock was tted which only Matt&Vicky and then Nathan&Jasmin had access to would probably be sucient to count as factual possession. The only caveat would be that the 12 years would start from 1995 and so as again we are past 2007, we can say the limutation act has passed the owner. The second condition is Animus Possendenti i.e. the intention to possess. This been particularly problematic in certain cases. The rationale for this requirement was that originally the courts looked at intention as a way of working out whether there was any form of permission or license for the possessor to be on the land. Nowadays, however, the intent to possess is typically measured by looking at factual possession and evidence of the intention the possessors claim to have and that the possessing was for the squatters benet not for the landowner. For example, in Buckinghamshire CC v Morgan, the defendant used the claiments land as a garden and maintained it for than 12 years and that was enough to show intent. Furthermore, the intention must be specic to possession not acquiring the land as saw with Lodge v Wakeeld where a party convinced they already own the land ended up adversely possession the land, it is more than they intent to possess. As factual possession was estabilish with the current case a strong case for animus possendendi can be made. Furthermore, as they have never contacted the paper owner to buy the property and it has been over 12 years it is clear the intention has been to possess and use the land for shelter as opposed to acquiring the land. The third requirement, not always stated as a requirement, is that possession should be adverse and by that we mean that it doesnt benet the paper owner or is against the wishes of the owner. For example, as the plan to build a land by possessors was the same as the paper owner and more crucially oers had been made to sell that property to the possessors in Walliss v Shell-Mex it was rendered that adverse possession had not taken plce as there was an implied license. It is important to note this doctrine was reversed in the Limitation Act 1980 Sch 1 8(4) which stated that implied licenses will no longer be assumed in law. Clearly as Fred had an intention to develop it into a retail park and so did Petra whereas the possessors merely wanted it for residence, the possession was adverse. Now that we have estabilish that adverse possession is capable of having been processed, how to we estabilish what has actually happened in terms of the legal titel and who owns the land and thus all that is underneath including the gold coins. This is largely dependent on whether the land is registered or unregistered. If the land is registered, and given that the 12 years ended after 2003, The Land Registration Act 2002 states that the paper owner still has the better title unless the possessors apply to the Land Registry. So Petra would have the authority to chuck Nathan & Jasmin out unless they can apply to Land Regustry and get the title changed and even in that case it would give Petra a 65 working day slot to object to the posseessors and oer her a further two years to evacuate them. If however, the land is unregistered then s17 of the Limitation Act 1980 will apply and the land will automatically be
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transferred to Nathan and Jasmin as Matt and Vicky have left. This would mean that the gold coin would belong to them and that the sale is actually void because of the nemo dat quad non habet principle as that states that you cannot sell what you dont have and Fred would have lost his title in 2007 and thus would not have been able to sell it to Petra. So, in sum, then if the gold coins are found on top of the land and are treasure they belong to the Crown, if not belong to Nathan and Jasmin. If However, found underneath the ground they belong to the owner. If the land is registered then Petra is owner and can only keep the coins but command Nathan and Jasmin to evacuate the premises. If however, land is unregistered Nathan and Jasmin are the legal owners and have the rights to the coins. It is important to note under Sch 6 para 11 LRA 2002, adverse possession relies on periods of possession rather than the identity of the possessors and thats why adverse possession able to take place over the course of Nathan & Jasmin, and Matt & Vicky.

Adverse Possession of a lease

1. 2. 3. 4.

A typical scenario will look like; that the freeholder will create a lease with a tenant, against whose wishes a third party will adversely possess the land to get possession. (Unregistered land) If this happens, this will not end the lease and the tenant will be liable. (Unregistered land) For breaking the covenants on the lease, as the adverse possessors are third parties are cannot be directly sued. (Unregistered land) However, the freeholder may claim forfeit for the breaches the tenant has made and give him the right to immediate possesion and authority to eject the adverse possessors o the land. (Unregistered land) It s only when the lease runs out and a further 12 years has expired that the adverse possessor can make a claim on the land. (Registered) As soon as the squatter takes possession of land that is leased, time runs against the tenant. Time does not run against the landlord until the lease expires unless the adverse possession started before the lease, in which case time will continue to run against the landlord during the term of the lease.

5. 6. 7.

Determining Adverse Possession in problem questions

In reality it is the character and the value of the property that determines whether the activity is sucient to show factual possession and subsequently adverse possession. Here are some examples. - In rural land sometimes shooting of rabbits is enough as seen in Red House Farms v Catchpole - In Boosey v Davis, the grazing of goats was insucient to show adverse possession because quality and quantity of such acts were minimal. - Similarly in Tecbild v Chamberlin, the playing of children and tethering of ponies was not sucient for adverse possession. - In Powell v McFarlane, some farming activity and using it for advertising was insucient to count as adverse possession.
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- In Williams v Raftery, the growing of vegetables and breeding of greyhounds was said to be insucient again. - In Treloar v Nute, inlling of a gully was sucient to count

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