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Adverse Possession

The court will not look at who is the true owner of the land instead they will
look at the two competing claims and the who has the best claim (Thus the
most recent possessor of the property) will be favoured by the court (Nicholls
V Ely Beet Sugar Factory [1931] and Mount Carmel Investment Ltd v Peter
Thurlow Ltd [1988])
The three things which the new possessor must show:
1. Factual possession
a. Powell v Macfarlane (1970) - appropriate degree of physical control
to amount to possession in fact?, thus the idea of what he does on
the land to show possession
b. Red House Farms (thornden) Ltd v Catchpole [1977] where the
shooting of wildfowls was enough because that is the only thing one
could do on that particular land.
c. Trivial acts such as recreational use will not suffice: Tecbuild Ltdv
Chamberlain. Unless trivial act is the only sensible use of the land:
Mayor of London Borough of Hounslow v Minchinton.
d. Boosey v Davis (1987) - Adverse possession is dependant upon
dispossession of the owner, and the grazing of goats and erection
of a fence are insufficient for this.
e. Treloar v Nute (1976) - possession must necessarily cause an
nconvenience or annoyance to the paper owner
f. Seddon v Smith (1950) - Enclosure is the strongest possible
evidence of adverse possession,
g. West Bank Estates v Arthur, Pye v Graham - Objective rather than
subjective test: resources and status of the individual parties
irrelevant:
2. Animus Possidendi
a. Powell v Macfarlane (1970) - intention to possess the land to
exclude others
b. Prudential Assurance Co Ltd v Waterloo Real Estate Inc [1999]
states that the claimant must, of course, be shown to have the
subjective intention to possess the land, but he must also show by
his outward conduct that that was his intention.
c. Buckinghamshire County Council v Moran [1990] locking a
padlock was seen to suffice to exclude all others. Furthermore the
squatter must show that the land was used to his own advantage.
d. Pye v Graham [2003] the emphasis of both; factual and intentional
possession. Grazing horses and cutting the hay was seen as the
factual possession.
e. Lodge v Wakefield - The requirement is to possess the property not
to acquire the property

f. Adverse possession can run against an owner who believes that


the land already belongs to the squatter- a view from Gray and
Gray Land Law book
3. possession must be adverse
a. Adverse is without consent or authority of the paper title and over
the limited time.
b. The squatter cannot act hostile of hostile. (Pulleyn v Hall
Aggregates (Thames Valley) Ltd)
Is the adverse possession in line with owners future proposal use? [this
raises the bar for the above test 1 + 2
o Land reserved for specific purposes- Leigh v Jack (1879) an owner
who was keeping his land dormant for some particular purpose in the
future was not dispossessed by a squatter who made use of it in the
meantime. This rule has now been distinguished from by the case of
Buckinghamshire County Council v Moran [1990].
Leasehold property
o Leases- time only stats to run when the tenant seizes to pay rent.
o Leases- should the tenant resumes to pay rent this will not pause the
time instead the time will restart when the tenant seizes to pay the rent.
o Leases Moses v Lovegrove [1952] states that if the landlord is in an
oral agreement over the rent, thus when the rent is not paid that is
when the adverse possession starts, thus if the landlord have given the
tenant a break on rent he may be needed to send an occasional letter
in writing of his position as the landlord.
o Colin Dawson Windows Ltd v Kings Lyn [2005] states that implied
consent can be given by the PTO.
Prescribed time
o When does the time start to run? When the original owner was
dispossessed or discontinued to use the land
o Postponement of limitation period s32(1) of the Limitations act 1980
states;
(a)the action is based upon the fraud of the defendant; or
(b)any fact relevant to the plaintiffs right of action has been
deliberately concealed from him by the defendant; or
(c)the action is for relief from the consequences of a mistake;
o Extension of time within which the owner can bring a claim- this is
when the owner is suffering from a disability, either under the Mental
Health Act 1983 or where the PTO is underage.
o What will stop to run?
The owner starts the proceeding to recover the land

The squatter provides the written acknowledgement of the


owners title. Ofulue v Bossert [2009] Without prejudice letters in
court proceedings do not count
The squatter goes out of possession leaving the property vacant
if however another squatter takes over and uses the land, his
and his predecessors time should be equal to the required time
under the Limitations Act.

The 12 year rule form s15 of the limitations act 1980 for unregistered land
after which the paper title owner (PTO) is statue barred
o The estate held is fee simple despite the fact that the adverse
possession was against a tenant or fee simple owner.
If the 12 years occur before 13 October 2003 then the unregistered rules
apply.
In registered land under sch 6 a squatter has after 10 years cane be
registered under the register as his proprietary right
In registered land Limitation act dont apply consequently no statue barring of
PTO
Land registry notifies the registered proprietor
o who has 65 business days (3 months est) to object
o No objections means squatter is registered as the new proprietor
o objection means squatters claim rejected
o three special circumstances in where the application may be accepted
dispite the opposition:
estoppel
some other right to the land
reasonable mistake as to bounderies
Registered owner then must try to repossess the land.
If three criterions are filled then squatter is registered as the new proprietor
Two years have passes since squatter originally claimed
Squatter still in possession
Squatter can now re-apply
Mentions the compliance with Human Rights
o Destruction of an owner's title may be in contradiction to a persons
right to peaceful enjoyment of his property under ECHR and Human
Rights Act 1998.
o These assertions were not accepted by Pye v Graham, or Family
Housing Association v Donnellan and the new regime has been
certified by Parliament as HR compliant (but it may still be challenged).
o The law on AP to registered land before LRA implementation is
incompatible as it deprives a persons right to land without
compensation, and is unjustifiably disproportionate: Beaulane
Properties Ltd v Palmer. However, the decision is subject to appeal,
and also does not affect unregistered cases or those under the new

LRA regime, as the notification procedure gives a reasonable but not


unlimited time for the paper owner to respond.