ABDULQADIR NAEEM – PROPERTY LAW

DENNING LAW SCHOOL

ADVERSE POSSESSION

Under English Law title can be acquired by virtue of possession. This is technically theft of land but can
be justified by the following theories:

1) Relativity of title i.e. title is not purchased, but is relative to possession. If a person does better
possession then the actual owner, the title should go to him (A owns land, live in America for 20 years,
during that time B builds house and lives, he does better possession) than the owner, title will accrue to
him.

2) Land is a scarce resource and if left unutilized there is a loss to the economy, therefore the law of AP
provides an incentive for others to invest in land in the hopes that one day it can be theirs.

Proving a claim

The first aspect is to establish AP is to prove the factual base where the AP will have to prove (Pye v
Graham)1:

1) Physical act of possession: This is a question of fact to be determined on a case to case basis
considering the land in question. The AP has to do any act which shows control e.g. change in locks,
building fences, walls. If land is unused, small acts will suffice (Malory)

2) Intention to possess: It was held in Mcfarlane that intention is not like Mens Rea in criminal cases,
rather an intent to exclude all others from the land including the legal owner. There is no need for
coincidence of act and intent (Pye v Graham).

Factual Base analysis to be read in conjunction with class notes and discussions.
Physical Act of Possession
o Possession must be ‘adverse’ to the paper title owner, so it cannot be enjoyed by virtue of some
legal right such as a lease, licence or consent from the paper title owner (Colchester B.C. v
Smith (1992), B.P. Properties v Buckler (1987).
o Techbild v Chamberlain – growing vegetables and clearing land so that children can play did
not constitute a physical act. However, in the case of Dyer v Terry basic cultivation on unusable
land amounted to a physical act.
o Treloar v Nute [1976] – where grazing of animals amounted to physical act of possession.
o Trivial acts such as recreational use will not suffice Techbuild v Chamberlain, unless trivial act
is the only sensible use of the land, Mayor of London Borough of Hounslow v Minchinton.
o In the case of William v Jones grazing sheep on unusable land amounted to a physical act.

1
In Powell v McFarlane, ((1977) 38 P & CR 452. The House of Lords approved this statement of the law in J A Pye (Oxford) Ltd v.
Graham [2002] UKHL 30.) Slade J said:

“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 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.”
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o Central Midland Estates – unlimited cars of customers being parked did not show sufficient
control and hence not a valid physical act.
o It was held in the case of Minchinton that a physical act may also serve a dual purpose as seen in
this case where a fence was built to keep dogs inside and also to exclude all others.
o Lambeth London Borough Council v Archangel [2002] – padlocking gate amounted to a
physical act.
o Battersea Freehold & Leasehold Co Ltd v Wandsworth London Borough Council [2002] -
the occupier of a bombed-out pub site allowed neighbouring tenants to have keys to the site.
Since owner lacked intention to possess land, the burden of proof to prove Factual Base
decreased.
o Purbrick v Hackney London Borough Council [2003] – adverse possession of a burnt-out shell
of a building, land unused, burden of proof was less.
o Smirk v Lyndale Developments Ltd [1975] – if a leaseholder possesses neighboring land then
there is a presumption that such land will be possessed on behalf of the landlord.

Intention to Possess

o Buckinghamshire County Council v Moran [1990] - makes it clear that where land has been
acquired or retained by the paper owner for a specific future purpose, there is no rule of law that
they cannot be dispossessed by acts of trespass that are not inconsistent with that purpose.
o An intention can also exist if the AP is prepared to accept permission if granted by the owner –
JA Pye (Oxford) v Graham [2002]. Similarly, in the Blackburn case the AP stated that he
would have accepted a lease if given, this will not negate intention. It is not the intention to own,
but the intention to possess that the courts seek to identify.
o A belief that land is possessed with the consent of the owner is fatal and will negate intention –
Clowes Development case.
o Simpson case – there was only a declaration of intention, no physical act thus no claim.
o If a person continues to possess land after lease or license has expired the he can claim under the
law of AP – Pye v Graham and Manchester Airport case.
o Batt v Adams [2001], fencing to keep in animals did not show intention to exclude others and so
could not found adverse possession.
o In exceptional circumstances, AP can be through an agent – Sze To Chun Kung.
o Wallis Cayto Bay – in exceptional circumstances an owner can also be said to give an AP an
implied license if the AP of the land in line with the owner’s purpose of land. The courts held that
the concept of implied license will only apply in exceptional cases in Buckinghamshire County
Council v Moran [1990] (refer to class discussions in this regard).

Stopping the Clock:

When the paper owner gets a judgment from the court in his favor proving his title, the clock
stops (Markfield Investments v Evans [2001]).
If the AP expressly by written notice or impliedly by paying rent acknowledges title of the owner,
the clock stops – (Browne v Perry).
The owner can stop the clock by retaking possession of the land from the AP. However, the act
has to show custody and control and the owner has to be careful as not to incur any criminal
liability.

Passing possession period:

In unregistered land and LRA 1925 the possession period of the AP was a proprietary right and
could be transferred from one AP to another.
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Possession may begin with one squatter and this time in possession can, against the owner, be
added to the time in possession of a successor (Mount Carmel Investments Ltd v Peter
Thurlow Ltd), but this is not possible under LRA 2002. An adverse possessor who has
consensually passed his interest to a subsequent squatter has no claim against his successor but an
adverse possessor who has been dispossessed by a subsequent squatter has, like the paper owner,
12 years from the dispossession to assert his claim against anyone subsequently in possession of
the land.
If more than one AP jointly starts possession then they will own the land in possession period
jointly and if one dies, right of survivorship applies.
Unregistered land

Proving Claim of Adverse Possession

LRA 1925
Since LRA 1925 is currently repealed, this situation only arises in situations where AP has done adverse
possession over registered land under Land Registration Act, 1925 where 12 years of possession are
completed before October 2003 (the effective date of LRA 2002):

Fee simple: If AP does 12 years before October 2003 then a trust of land will be created where the legal
owner will become the trustee of the land and hold the land in trust for the AP, after Land Registration
Act 2002 the AP will get an entitlement to be registered as an owner of land on the HM (Her Majesty’s)
registry.

Leasehold: If AP does 12 years on a lease then a trust is created and AP becomes the equitable owner,
however it was held in Kato Kazuki that the AP will step in the shoes of the tenant and shall have all the
rights of the tenant so the issue of leases in unregistered land is now solved by this law.

LRA 2002
If the factual base is proven before October 2003 and the 12-year period ends after October 2003, then
LRA 2002 applies OR if factual base is proven after October 2003 then 10 years have to be completed.
On completion of the 10 years or 12 years as applicable, the statutory regime under LRA 2002 (Schedule
6) is triggered where the AP gets eligibility to apply to the registrar to become the owner of the land, on
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receipt of the application, the registrar will first check the factual basis, if it is sufficient, the registrar will
send a written notice to the registered owner who will have three options:
1) To consent
2) To object (case referred to the HM adjudicator)
3) To serve a counter notice (This is the most preferred option where the AP can never be registered as
owner unless he falls under any one of the three exceptions, if he does not then the legal owner is granted
two years to dispossess the AP, failing which the AP can again apply and be registered as owner)

Exceptions:
1) Proprietary estoppel and ought to be registered: To prove this AP has to prove the elements of
proprietary estoppel (Assurance, reliance, detriment and bad conscience). After proving PE, the
AP will have to bring additional evidence to prove he ought to be registered as an owner. There is
no case law, therefore reliance can be placed on examples given by the HM registry which are as
follows
a) where the squatter has built on the registered proprietor’s land in the mistaken belief that
they were the owner of it and the proprietor has knowingly acquiesced in their mistake.
b) where neighbours have entered into an informal sale agreement for valuable
consideration by which one agrees to sell the land to the other - the ‘buyer’ pays the
price, takes possession of the land and treats it as their own - no steps are taken to perfect
their title and there is no binding contract.
2) For any other reason, the AP ought to be registered: The courts have clearly stated that this
exception will be narrowly interpreted. No case law is available but the following examples are
given by the HM registry.
a) where the squatter is entitled to the land under the will or intestacy of the deceased
proprietor.
b) where the squatter contracted to buy the land and paid the purchase price, but the legal
estate was never transferred to them.
3) Boundary exception: This can only be used if there is an encroachment situation, but four points
have to be met
a) they own land adjacent to that for which their own application is made
b) the exact line of the boundary has not been determined
c) the applicant has held adverse possession for a period of at least 10 years, ending at the
date of the application
d) throughout that period the applicant or their predecessor in title reasonably believed that
the land belonged to them (or was at least unsure who the owner was) (Zarb v. Perry)
((Mistaken belief is not displaced if legal advisor highlights the boundary not being in the
proper place [IAM group v Chaudry]), and
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e) the estate to which the application relates was registered more than a year before the
application.
Refer to class discussions in respect of the above – more helpful information can be found on the
HM Registry website - https://www.gov.uk/government/publications/adverse-possession-of-
registered-land/practice-guide-4-adverse-possession-of-registered-land.

Human Rights (to be read in conjunction with the class discussions on this point):

In JA Pye (Oxford Ltd) v Graham [2001], the Court of Appeal considered whether the gaining
of land by adverse possession violates the human property rights of the dispossessed owner of the
land. It was decided that removal of title by limitation defines the terms on which ownership is
allowed by the English legal system, and so is neither an interference with nor a deprivation of
the owner’s possession of the land. The court conceded an interference with the paper owner’s
right of access to a court under Article 6 of the European Convention on Human Rights, but
considered the interference justifiable in view of the time limits involved. This issue was
subsequently considered by the European Court of Human Rights. In JA Pye (Oxford) Ltd v
United Kingdom (2008) - the Grand Chamber held that there was no violation of the
Convention.
In Ofulue v Bossert [2008], the Court of Appeal confirmed that the law of adverse possession
does not violate human rights and that the decision of the Grand Chamber in Pye should be
followed unless there were ‘very good reasons’ for departing from it. Thus, it appears that the
doctrine of adverse possession does not violate human rights.
The issues whether an AP can raise Article 8 (right to private life) if he is dispossessed by the
owner before completion of 12 years was answered in the negative in the Malick case.

Criminal Offences:

S.144 of the LASPO has made squatting an offence in the context of residential homes. An issue
arose due to this that whether after enactment of LASPO an AP can apply to be registered as an
owner or go to the court to get a court order (for unregistered land), on the basis of criminal
offence.
It was clarified in the case of Best v Chief Land Registrar that an AP can apply even though
squatting is an offence (refer to class discussions on the implications of this).

Additional Points

The following circumstances prevent an application being made for registration based on adverse
possession

the registered proprietor is an enemy or detained in enemy territory, or has been an enemy or detained
in enemy territory in the 12 months before the date of the application (Schedule 6, paragraph 8(1) of
the Land Registration Act 2002)
the registered proprietor is unable because of mental disability to make decisions about issues of the
kind to which an application for adverse possession would give rise, or is unable to communicate such
decisions because of mental disability or physical impairment (Schedule 6, paragraph 8(2) of the Land
Registration Act 2002)
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the estate in land was held on trust at any time during the period of 10 years ending on the date of the
application, unless the interest of each of the beneficiaries in the estate was an interest in possession
(Schedule 6, paragraph 12 of the Land Registration Act 2002)
arguably this means that an application cannot be made where, at any point during this period, the
registered proprietor at the time (i) was dead and their estate was being administered, (ii) was bankrupt
and their property was being administered by the trustee in bankruptcy or (iii) (being a company) was
being wound up. In each of these cases the registered estate is subject to a form of trust (Ayerst v C &
K (Construction) Ltd [1976] A.C. 167)

Question
Q) Medicare plc owns the registered freehold title to a central city site it used as a hospital until 1998
when it re-located to the outskirts of the city. Medicare decided to hold onto its central city site because it
anticipated that the land would increase in value once RailFare started its planned expansion of the nearby
railway station. Before it relocated, Medicare secured all the buildings and the perimeter fence of the
central city site. After many years of delay, the railway expansion is now going ahead, and Medicare is
planning to sell the central city site to RailFare. In preparation for the sale, Medicare’s surveyor, Seth,
makes a site inspection and he discovers the following: (a) Abby is using one of the buildings as an
advice centre for homeless people. Abby explains to Seth that she formulated her plan when she first
noticed the disused building in 2005. Early in 2006, she broke down the door and installed a generator
to supply power. She also re-decorated the building. Ahead of opening in January 2007, she publicised
the centre’s services on the local radio. Abby told Seth that she had no idea who owned the building, but
had they asked her she would have moved out. (b) Bob, a mechanic, is using the garage previously used
by the ambulances, to operate his vehicle repair business. Bob shows Seth a copy of a contract for
sale (dated 1998) together with a receipt for the purchase price he paid to Medicare. (c) The high hedge
between Medicare’s site and the back garden of a neighbouring public house, The Engine House, appears
to be in a different place from that shown on Seth’s plan of the central city site. Consequently, a small
piece of Medicare’s land is now on the wrong side of the hedge. Cynthia, the owner of The Engine
House, tells him that in 1999 a previous owner of the pub had planted the hedge to replace the remnants
of a broken-down fence. She believes that the previous owner had taken his lawyer’s advice on where
the boundary lay. Advise Medicare as to whether Abby, Bob and Cynthia can make a successful claim to
be registered as proprietors of the respective parts of its central city site they occupy. Indicate briefly how,
if at all, your advice about Abby’s claim would be different if her legal position was governed by (i)
unregistered land law rules; and (ii) the Land Registration Act 1925.