Tutorial 9

Adverse Possession

Intended Learning Outcomes

By the end of this tutorial cycle students should be able to;

Understand and discuss the legal treatment adverse possession and the
ways in which it has evolved.
Identify and understand critiques of the doctrine and be able to evaluate
them.
Critically describe the wider socio-economic and policy context and
rationale for adverse possession.
Discuss and critically analyse the impact of the European Convention on
Human Rights on the law relating to adverse possession.
Understand the importance of selecting sources and employing them
effectively in essays.
Recognise the need to justify (both orally and in writing) source selections
and develop persuasive interpretations of materials.

Essential Reading
Textbooks
Thompson, Modern Land Law (2012); Chapter 7
Dixon, Modern Land Law (2014); Chapter 11

Cases
Powell v McFarlane [1979] 38 P&CR 452
Buckinghamshire County Council v Moran [1990] Ch 623
J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419
Beaulane Properties Ltd v Palmer [2005] EWHC 817
J A Pye (Oxford) Ltd v United Kingdom [2008] 46 EHRR 45
Ofulue v Bossert [2008] EWCA Civ 7
Baxter v Mannion [2011] EWCA Civ 120

Required Reading

Please come to class having located and read with care the following three papers:

L. Fox OMahony and N. Cobb (2008) Taxonomies of Squatting: Unlawful

Occupation in a New Legal Order 71 Modern Law Review.

M Dixon (2005) Adverse Possession and Human Rights Conveyancer.

H Conway and J Stannard (2013) The Emotional Paradoxes of Adverse Possession

64 Northern Ireland Legal Quarterly.

Additional Reading
You may want to supplement the above with relevant chapters from your preferred
textbook.
Essay Question

Both the agenda for the criminalization of squatting and the erosion of the traditional
doctrine of adverse possession in the LRA 2002 are clearly embedded within a
broader commitment to the protection of property/capital ownership interests, the
commodification of real property, and the pursuit of economic security for those who
hold formal rights in land. (Cowan et al. Great Debates in Property Law 2012).
Critically discuss.

Source Review
This tutorial is organised around a source review.
What is a source review? A source review is an exercise which aims to help you
think critically about the best literature and sources for a given essay, and to
construct a plausible and persuasive argument about the sources you have chosen.
It is an exercise that requires you to select your sources and then to justify your
selection in writing.
To help you, three papers are listed above. You are expected to read all three and
then to write a source review of two of these. Your review need not be longer than
two (2) pages per paper, and it needs to cover (but need not be limited to) the
following:

1. Why have you identified the particular paper as useful to you in answering the
essay question?
2. Can you summarise its thesis (argument) in 6-8 lines?
3. What parts of its argument did you find persuasive? Why?
4. How can it be used in answering the essay question? How precisely did it
help you to address the question?
5. What areas did the paper not cover on which you require more knowledge?
Can you locate further research papers that might help you and provide
references to these?
6. Can you think of counterarguments to the ones made in the papers you have
read? Set these out as clearly as possible in your own words.
7. Try to think about the essay question from different points of view do you
agree with its premise? Why? Do you find yourself disagreeing with it? Give
your reasons writing them as clearly as you can.

Adverse Possession Revision

Someone who is a trespasser over the land may gain interest and rights
into a property as long as he satisfies certain requirements.
Long Use of Land
Those who go to sleep on their claims should not be assisted by law
Lloyds v Butler RB Policies.
Land is too valuable to ignore- you cannot leave a property for years
without having something happen. The law refers to these people as
Squatters.
Section 15(1) Limititation Act 1980 no action shall be brought by
any person to recover land after the expiration of 12 years from the date
on which the right of action accrued to him, or if first accrued to some
person through whom he claims to that person.
Why Allow AP Atall?
1) very harsh on someone who occupies land for a long period of time,
who improves it only to find that he has no claim upheld.
2) Land should not be withdrawn from the marker and removed from
general circulation.
3) Land must remain marketable
4) Law protects defendants from stale claims by landowners.

Land Registration Act 2002 has brought reform the Law

Commission have been critical of Adverse Possession
Does not seem fair to the landowner with the paper title. It is far more
difficult now for anyone to try and claim property of another as their own,
Simply by long use of enjoyment of that land. ADVERSE POSSESSION runs
completely COUNTER to the spirit of Land Registration. There are now
built in safeguards to further prevent this happening.
If it is registered land then the paper owner will be notified by the land
registry before the squatter can try to register his rights. This gives the
paper owner notice that the squatter is trying to gain rights, he will then
try to take action to ensure that the squatter is evicted. It is anticipated
that there will be much fewer successful claims.

Meaning of AP 3 Main elementsMeans that right of ownership in land are acquired by simply taking
possession of the land. No money passes hands and no formal
conveyance.
1) Must show factual possession
Must take physical possession of the land, time will begin to run against
the paper title owner from the date that the owner was dispossessed or
discontinued possession.
Factual Possession constitutes1) the claimant must intend to exclude all others including the paper
title owner.
Signs of which attempt to exclude trespassers would be a good sign of
factual possession. Fencing also constitutes factual possession, if the area
is really large it is unlikely to fence the lot. Enclosure is the strongest
claim Seddon v Smith
Powell v Macfarlane Cow called Kashla on the land did not intend to
possess, only temporarily using the land it was held.
Buckinghamshire CC v Moran he padlocked the gate and fenced it, this
was exclusive possession.
2) The factual possession must be for an unbroken period of time
If one person dies or sells the property, it is important that there should be
no break in the claim to adverse possession over the land. They can be
passed down in the will (AP RIGHTS) they can also pass with the
conveyance of the legal title to the rest of the land.
Buckinghamshire CC v Moran The property changed hands several times
before eventually it came into the lands of Mr Moran; the claim over the
additional land passed each time with the purchase. No breaks in
possession.
If there is any break the limitation period ceases to run.
3) The factual possession must be openly exercised
Must be available for the paper owner to find out about the squatter if
they deliberately conceal themselves when the paper title owner visits the
property then time would run out. If he sees squatters and does nothing to
evict them then he cannot expect the law to protect him.

4) The factual possession must be adverse to the paper title owner

Occupation of the land with the permission of the owner or under some
lawful right is not adverse. So where the occupation if under a licence or a
lease, that is not adverse.
If the position changed the possessor must show that this is.
Pye v Graham Grahams family used the fields under a licence- tried to
extend it- no answer, continued to live there from 1986 until 1997 when
Mr Graham registered a caution against the property based on his rights
under adverse possession. HOL held that the Grahams establish
possession.
Doctine of implied licence has been removed from the LA 1980.

2) He must show that he had the necessary intention to defeat

the interests of the owner.
Must prove that at all times the squatter had intended to treat the land as
his own. Must make it clear to the world that he intends to possess the
land. He must show animus possidendi.
Conduct indicating an intention to possessNotices if the squatter moves in and then puts up a keep out sign this
will obviously be evidence of intention to possess. The notices must be
enforced.
Fences and locked gates In Buckinghamshire CC v Moran put up
fencing and a gate which was locked was sufficient to show an intention to
possess.
Changing the locks Lambeth LBC v Blackburn if the squatter
changes the locks to a property there is clear evidence that he intends to
treat it as his own and to exclude the paper title owner from the land.
Some examples of acts disclosing no intention to possessTransient and trivial acts Most of the acts in the Macfarlane case
were considered transient

Fencing even fencing can be equivocal, it is always possible that the

intention to own the land Is lacking. Fruin v Fruin
Age of the claimant- considerable weight was placed on the fact that
the claimant was relatively young

Equivocal Acts some acts are equivocal this means they can be
interpreted in at least two ways. They could be for future possession or
just present enjoyment.
This puts a very heavy burden on the adverse possessor like in the
Macfarland case it was difficult to prove that it was not just present
enjoyment that it was for the future.
3) Both factual possession and intention to possess must have
been exercised over a sufficient length of time.
Orginally governed by the LA 1980 now the LRA 2002 this applies
different periods of time for different titles. LA act is only used in
unregistered titles.
LRA 2002
No period of limitation on S15 LA 1980 shall run in relation to a registered
estate in land. The registered owner can no longer be said to lose title.
Under the 2002 act the squatter must apply to the registrar to be
registered as a proprietor of a registered estate if he has been adverse
possession of that estate for 10 years. There is then a notification sent to
the owner that someone has claimed possession.
The owner then has 65 working days- if he responds the squatter may still
have a remedy under the 3 conditions if the application is declined.
Estoppel the squatter will rely on the fact that the registered proprietor
made a representation to him and he has acted in reliance on that
representation to his detriment. Under the rules of estoppel the proprietor
is then estopped from going back on his representation.
The registrat may register the applicant if he is entitled to be registered as
the proprietor of the estate for some other reason. This covers situations
such as where the squatter has rights under intestacy or a valid will of the
deceased proprietor.
Boundary disputes many of the claims for rights under adverse
possession concern boundary disputes. Under the 2002 act, if the squatter

believed the disputed land to be his own for the last 10 years and the
estate to which the application, then the squatter is entitled to be
registered if he can satisfy the requirements of both factual possession
and also intention to possess.

Adverse Possession in tenancies

The tenant as a squatter if the tenant wishes to claim the time will run
only when his lease expired.
Hayward v Chaloner only arises when the landlord and tenant
relationship ceases to exist. The rector of a parish had been given a
smallholding. He paid rent for a while, then stopped. The rector then
claimed that he had acquired rights under AP because he was no longer
under a lawful agreement.
It is much harder for someone to claim AP now, against leasehold property
than it is against freehold property because the squatter has to claim
against both the tenant as well as the freeholder and so he must satisfy
two limitation periods. However, there has been doubt as to whether the
squatter has the right to remain in the property for the duration of the
lease.
Fairweather v St Marylebone Property Co a lease had been granted
in 1894 for 99 years. Squatters took possession when there were still over
40 years of the lease left to run. The tenant sought to surrender the lease
to his landlord in 1959. If the application was unsuccessful the landlord
would have to wait until the lease expired in 1993 which was over 30
years away. Held surrender of title to be effective.
Registered land is different the law is different where the tenancy is in
registered land. Once time has run out then the tenant can no longer
surrender the lease. Spectrum v Holmes
Dixon Adverse Possession
Adverse possession is fast becoming out of date, Although it remains the
case under the LRA 2002 that a person is still registered with an estate,
not the land itself, registration of a proprietor under the 2002 act is a
more robust guarantee of ownership. The LRA 2002 is the closest thing in

900 years to the absolute ownership of land, leading to the almost

extinction of AP.
Its a policy against people who sleep on their rights. Hounslow v
Minchinton an APer brought derelict land back into use this has socio
economic benefits as to keeping land marketable and market friendly. It is
a mistake to accept unquestionably the relevance of AP in our modern
system of land, considering when we are moving to electronic dealings of
it.
Registered land now comprises 85 percent of all titles.
Make sure we make the comparison dying in registered land but still
really relevant in unregistered land? This could be the essay question?

Adverse possession of unregistered land remains a real possibility, but

successful adverse possession in registered land is improbable in the vast
majority of cases.
How is AP established?
Case law has established theses rules, not found in statute.
J A Pye v Graham HOL states that AP may be established by
demonstrating the required degree of exclusive physical possession of
land coupled with intention to possess land to the exclusion of others.
An Intention to PossessPowell v Macfarlane
The requirement that the AP must intend to possess is extremely artificial.
Some APs may appreciate fully that the land is not theirs but still intend
to keep the people out.
Graham establishes that it is the intention to possess not to own. Just has
to prove that he meant to exclude everyone he could (Williams v Jones)
This means that the focus is on the claimant to prove, not the owner.
Immaterial of whether the land owner had future plans for the land, the
implied licence theory is wrong law, Chambers v Havering.
Physical Possession of Land

Physical degree of factual custody and control over ones use of land.
Minchinton she fenced off the land to keep the dogs in, but also to keep
people out. This amounted to possession
In Ofulue v Bossert the HOL confirmed that the law on AP is compliant
with human rights (protocol 1 to the convention). We only consider them
when something extraordinary happens like in the case of Pinnock.
Unregistered Land
The ability of a possessor to acquire a better title to unregistered land
than the paper owner is based on the principle of limitation of actions. A
person must sue for an alleged wrong within specified period of time from
the moment the alleged wrong took place. If the unregistered land owner
sleeps on his rights those rights will be extinguished in the sense that a
court will not enforce them against the person actually in possession of
the land. In this sense, therefore, adverse possession operates negatively;
it prevents and estate owner from suing on his rights and operates to
extinguish his title.

Limitation Period for Unregistered Land

Limitation period is for 12 years from the moment the adverse possession
of the unregistered title by the adverse possessor (s15 LA 1980). Where
the paper owner of the land is the crown. If the AP has never been in
possession at any time, then time cannot start against the owner at all
(Smith v Lawson) (licence)
Stopping the clock of limitation for unregistered land
Assuming that the land is unregistered land, if the claimant is in adverse
possession of the land, this means that the paper owner has the limitation
period (usually 12 years) to assert his paramount title and recover
possession.
Adverse Possession under the LRA 2002
Basic principle there is not period of limitation against a registered title
and no sens of which a registered proprietor can lose title merely because
another person has adversely possessed the land for a fixed period of
time (section 96 of the LRA 2002). The AP has to apply to the register to
get registered on the land- at that point the paper owner is notified that
someone is making a claim onto his land. This alerts the landowner who of
which will then be able to make arrangements to move the AP from the
land.

Statutory Scheme
Where a person has been in AP for 10 years the person may apply to the
register to be put down as the proprietor. Schedule 6 of LRA notification
sent to proprietor 65 days to reply
The registered proprietor will have two years to bring a normal court
action only the uninterested landowners will fail this increases the first
registration of title it offers considerable protection against the claims of
adverse possessors.