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Adverse Possession

 
Adverse possession is a means by which title to land can be acquired by taking possession for a period of time. Adverse possession is linked to the principle of limitation of action (see s.15 Limitation Act 1980)but goes beyond this as the previous owners rights may be extinguished. Adverse possession is controversial since in effect it permits squatters to lawfully steal land. However, the rationale for allowing acquisition of title through adverse possession is that if a land owner neglects his land for a long enough period of time, it would be preferable to put the land to better use. It also places a duty onto land owners to take care of their land and know what is going on in their premises  Different rules operate for adverse possession depending on whether the land affected is registered or unregistered with more stringent measures operating in registered land making it much more difficult to acquire land by adverse possession. 
 
Elements of a claim:
 
 
In order to make a successful claim for adverse possession in both registered and unregistered land, the squatter must demonstrate that they were in factual possession for the requisite period of time and that they had the intention to possess. This was established in Powell v McFarlane (1977) 38 P & CR 452 (Case summary) and affirmed in Pye v Graham [2003] 1 AC 419 (Case summary).


1. Factual possession

 

What constitutes factual possession will differ depending on the nature of the land. The possession must be exclusive and it must be adverse.


Depends on the nature of the land:


Lord Advocate v Lord Lovat (1880) 5 App Cas 273  Case summary


Factual possession requires a sufficient degree of physical control. It involves dealing with the land as an occupying owner would and that no one else has done so:
 

Powell v McFarlane (19770 38 P & CR 452  Case summary


Some instances of factual possession include:

Grazing cows and storing timber:

Treloar v Nute [1976] 1 WLR 1295

Shooting over marsh land:

Red House Farms v Catchpole (1977) 244 EG 295  Case summary

Putting up notices and granting licences to shoot:

Walker v Burton  [2012] EWHC 978

Mooring a boat:

Port of London Authority v Ashmore [2010] 1 All ER 1139



Possession must be exclusive:


Leigh v Jack (1870) 5 Ex D 264


Balevents v Sartori [2011] EWHC 2437



Fencing the land off will generally be indicative of factual possession


Williams v Usherwood (1983) P & CR 235

Seddon v Smith  (1877)36 LT 168

Buckingham CC v Moran [1990] Ch 623


However, in some instances fencing has not been sufficient to give rise to factual possession:


Basildon v DC Manning (1975) 237 EG 879 

Boosey v Davis (1988) 55 P & CR  83    Case summary

Marsden v Miller (1992) 64 P & CR 239

Fencing is not an essential requirement:


Pilford v Greenmanor [2012] EWCA Civ 756


Possession must be adverse

The squatter must be in factual possession as a trespasser. If they have permission to be on the land, the possession is not adverse. If a person exceeds their permission this may be classed as adverse:



Allen v Matthews [2007] EWCA Civ 216

Colchester v Smith [1991] Ch 448



A licence may be implied:




Wallis's Cayton Bay Holiday Camp v Shell Mex & BP [1975] QB 94



 

However see also:
 


Buckinghamshire CC v Moran [1990] Ch 623
 
S.15(6) Sch 1 para 8(4) Limitation Act 1980
 
 
The possession must be open and not deliberately concealed:
 
 

Pye v Graham [2003] 1 AC419  Case summary

s.32 Limitation Act 1980



2.Intention to possess

Once the squatter has established they were in factual possession, they must also demonstrate that they had intention to possess. The squatter must have the intention to exclude the world at large including the paper owner:


 
Pye v Graham [2003] 1 AC419   Case summary

Buckinghamshire CC v Moran [1990] Ch 623
 
Marshall v Taylor [1895] 1 Ch 641
 
 
A person with a mistaken belief in permission can have the necessary intent to possess:
 
 
Wretham v Ross [2005] EWHC 1259 
 
 
Dispossession of the squatter by the paper owner

The paper owner of the land may dispossess the squatter before the expiry of the limitation period to defeat their claim. This can be done through eviction or taking back possession. It can also be done by moving a boundary fence:


Zarb v Parry [2011] EWCA Civ 1306

 
Concurrent possession with the squatter will prevent adverse possession starting but it is insufficient to dispossess:
 
 
 
Sava v SS Global Ltd [2008] EWCA Civ 1306
 
Strachey v Ramage [2008] EWCA Civ 384
 
 
Oral demands for possession are insufficient:
 
 
Zarb v Parry [2011] EWCA Civ 1306
 
A written demand is also insufficient:
 
 
 
Mount Carmel Investments v Peter Thurlow [1988] 3 All ER 129

Acknowledgement or payment by the squatter will break the continuity of the adverse possession. Under s.29 Limitation Act 1980  there will  be a fresh accrual of a cause of action on acknowledgement or payment.


Allen v Matthews [2007] EWCA Civ 216
 
 
Adverse possession in unregistered land
 
 
Where the land is unregistered, the squatter acquires good title to the land after being in adverse possession for 12 years. S 15 Limitation Act 1980 prevents the owner taking action against the squatter after 12 years of adverse possession. 
 
Adverse possession of  Registered land 

The Land Registration Act 2002 marked a significant change to adverse possession in registered land. There is no automatic right to the land after establishing that they have been in adverse possession for 12 years. A squatter must now follow the procedures set out in Sch 6 Land Registration Act 2002. According to Sch 6, a squatter must now make an application to the registrar after 10 years of adverse possession. The registrar is then obliged to give notice to the registered proprietor and the proprietor of any registered charge on the estate. This is to alert them to the intended claim on the estate and give them the opportunity to object to the registration.  Under sch 6, a person in receipt of notice of a squatter's application may object on the following grounds:

1. Disputing the applicants eligibility on the grounds that they have not been in adverse possession for 10 years
2. The land is subject to a possession order
3. The land is subject to current proceedings to obtain a possession order
4. The proprietor is subject to a mental disability
5. The application needs to be dealt with under Para 5 sch 6


If no objection is lodged, the applicant squatter will be registered as the proprietor within 65 days of the notice being issued (Sch 6, para 4, Land Registration Rules r.189). This applies even if the notice did not reach the registered proprietor.

A valid objection will defeat the squatters application to be registered at this point. The interested party must then take steps to evict the squatter. If they fail to do so, the squatter can make a further application after two further years of being in adverse possession.

 
 




Situations not covered by adverse possession



Adverse possession can not be claimed in respect of a public highway:


Adverse possession can not be used by a trustee in respect of trust property S.21(1)(b) Limitation Act 1980

Statek Corp v Alford [2008] EWHC 32

Adverse possession