Land Law-Adverse Possession University of London Q4, ZA, 2005 Answer prepared by Glen Chee

Evidential issues Jim registered owner of Blackacre Adjoining Blackacre a plot of land Terrace houses waiting for demolition, belonging to local council Future development 1992 Jim removed boards and began using for storage purposes Fix steel door and attached padlock 1993 installed electricity to enable to do small repairs jobs in the house Council representative visited time to time Had knowledge of Jim but raised no objection 2005 Council wrote a letter to Jim demanding him to leave Unregistered land

Factual Possession Jim is advised to establish the elements of adverse possession in order to successfully claim the land, he must show that there is factual possession which is defined in Powell v Macfarlane by Slade LJ as sufficient physical control of the land, the degree of control would depend on the nature of the land, and Jim must be dealing with the land as an occupying owner would have done. The Council will try to argue that removing of boards and storage were trivial acts and Tecbild v Chamberlian held that trivial acts will not amount factual possession. The Councils defence will hold no water as the evidence shows that in 1992 he removed the boards, used the house for storage purposes, fixed a steel door and attached a padlock and according to Bucks CC v Moran (padlock and chain) and Pubrick v Hackney (steel door and padlock) which has both deals with derelict property these actions will be enough to constitute sufficient control of such a piece of land, therefore it will constitute as factual possession of the land. In Elis v Lambeth LBC (fixed door) the courts affirmed that fixing a steel door and padlock shows factual possession to use the property as his own, hence factual possession started in 1992. Intention to Possess Next Jim must establish he had the intention to possess and use the property for his own benefit and to exclude everyone else (Pye v Graham) and intention can be inferred from Jims conduct to possess especially by fixing a steel door, padlock and installing electricity because all the acts indicates intention to use the derelict property for his own benefit (Bucks CC v Moran).

However the Council may argue that his intention was merely to store goods and not to possess as owner (Fuin v Fruin). This line of defence will fail as Powell v Mcfarlane held that a squatter in our case Jim must only show intention to possess to use as his own but not necessarily intention to be the owner. It was held in Hounslow LBC v Minchinton that it is the courts will look at the effect of the measures and in our case by putting a steel door, padlock the effect would be to exclude all others and use the derelict property as his own benefit. Therefore at this stage it is submitted that Jim will be able to show factual and intention to possess. Ear Marked Doctrine implied licence Local Council will try to raise the ear-marked doctrine and argue that they intended to develop the land and it was not abandoned by relying on Leigh v Jack which states that in order for successful adverse possession to happen, the acts must be inconsistent with the owners land. The Council will reinforce by applying William Bros v Rafferty, Wallis Clayton Camp v Shell Mex where both cases Lord Denning endorses the ear-marked doctrine and stated that the courts will look at the future intention of the land owner instead of the squatter therefore Jims use is not inconsistent with the Council as the Council has no use of the land until in the future. Hence Jim will have an implied permission by legal fiction to use the land. Jim will reject the above arguments because Limitation Act 1980 Sch 1 para 8(4), effectively abolishes Lord Dennings implied licence doctrine by legal fiction and Bucks CC v Moran, Nourse LJ firmly rejected Lord Dennings reasoning which is based on Leigh v Jack, stating that such reasoning was heresy. In addition, Lord Browne Wilkinson in Pye v Graham described that the suggestion that the adverse nature of possession depended not on the squatter but on that of the owner as heretical and wrong! The Council will try to argue that there is an infringement of convention rights by raising Beaulane Properties v Palmer where Nicholas Strauss QC artificially revive the doctrine in Leigh v Jack because of the ruling in Pye v UK where the ECHR found LRA 1925 and the adverse possession law on unregistered land to be in contravene of Art I of the 1st protocol, after which the Land Registry issued a practise guide line stating that for LRA 1925 and unregistered land the squatter must show that possession is inconsistent with the owners use. However we must distinguish our case with Beaulane, our case deals with LRA 2002 and not LRA 1925 hence Councils argument will be seriously flawed, notwithstanding Pye v UK (2005) the ECHR concluded that the law of adverse possession under LRA 2002 is fine and not in contravene with convention rights. This was further endorsed in Pye v UK (2007) the ECHR clear stated that English land law (LRA 1925 and unregistered land) does not contravene convention right. The state has a right to enforce property laws in accordance with general interests

and limitation periods can be found in all countries, even an application to ECHR is subject to a limitation period hence such limitations are deemed reasonable. Furthermore Ofulue v Bosset doubted the correctness of the Beaulane Point. Therefore all of the Council defence argument will be struck down by Pye v UK (2007), hence this ruling of the ECHR extinguishes the ghost of Leigh v Jack for good.