#17745 - Adverse Possession Notes - Land Law

Adverse Possession Notes

Adverse possession refers to the process by which a person acquires the fee simple to land by possession of it for a certain period of time.

• The title is good against the whole world save any person who has better title (Asher v Whitlock)

What justifications exist for the rules relating to adverse possession?

There are multiple justifications the rules relating to adverse possession. The Law Reform Committee’s 21^st Report (1978) put forward these general aims of the Limitation Act 1980:

1. To protect S from stale claims –

   1. The problem with stale claims is that there can be difficulties of evidence where the relevant events took place a long time ago: litigation has the potential to become something of a lottery.

      1. BUT: this argument has less weight in relation to land given that transactions are regularly conducted on paper and so evidential issues are less of a problem than on other areas of the law.

2. To encourage O not to sleep on their rights –

   1. Sleeping on rights is contestable for multiple reasons, depending on the perspective from which we view.

      1. From the perspective of S, he may have treated the land as his own for many years and thus made improvements upon it.

         1. BUT: adverse possession is based upon the passage of time rather than detrimental reliance.

            1. We might respond to this objection by saying that the passage of time merely increases the likelihood that someone has made significant improvements to the land. If the doctrine were to be based on detrimental reliance, questions would have to be asked about the extent of reliance necessary in order to succeed in a claim: If a person planted one flower would this be enough? This would inevitably lead to judges having to apply discretion to questions of extent of reliance which would render the whole exercise incredibly unpredictable, something which should not be the case in relation to property rights.

3. To ensure that a person may feel confident after the lapse of a given period of time, that an incident which might have led to a claim against him has finally closed -

   1. Dockray (1985) says that there are two main reasons why the law would wish to encourage this confidence in people:

      1. It avoids hardship – this is the case because it withholds from a person who has slept on their right and never possessed it, rather than taking away from another person who has considered the right his for a long time.

         1. BUT:

      2. It encourages the use, maintenance, and improvement of natural resources – it is in the public interest to promote the full use of neglected natural resources and thus it should be desirable that a fixed time limit exists to encourage the improvement and development of land which might otherwise.

         1. BUT: it is noted that this argument is limited to a certain set of cases. Adverse possession is not confined to instances of “long and peaceful possession of neglected or underused property”.

            1. We should not just give the fee simple to people because they are going to use the land better than someone else: this justification only works in relation to truly neglected land.

Contrary to this, however, the Law Commission wrote that adverse possession is no longer justified in most cases. In this light, Lord Neuberger said in JA Pye (Oxford) Ltd v Graham that the law is illogical and disproportionate: it is illogical as the owner cannot be seen to have done anything wrong and disproportionate because the squatter can obtain an undeserved windfall at the expense of the owner.

As a result of these shortcomings, the Land Registration Act 2002 limited adverse possession to three types of case:

1. Where O fails to assert rights to the land where given the opportunity to do so

2. Where S reasonably believes that the land can be efficiently used where there is clear sleeping on rights

3. Where S can lay a claim to the land on grounds other than adverse possession, then adverse possession can be relied upon

However, these restrictions only apply to registered land, and thus there are two sets of rules for adverse possession: one relating to registered land and another for unregistered land.

In a similar vein, Dockray (1985) thought that there was a fourth objective behind the Limitation Act 1980. Whilst oft forgotten and perhaps even lost as an aim is facilitating the investigation of the title to unregistered land.

• This might be relevant in the case of unregistered land, but given the new provisions for adverse possession established in the Land Registration Act 2002, it cannot apply beyond the realms of unregistered land.

  • BUT: given that the mechanism for acquiring the fee simple through adverse possession in the LRA 2002 severely limits the sphere of operation, we might see that investigation of unregistered land potentially justifies the wide scope and potential injustices of extinguishing title by the 1980 Act.

    • ALSO: the fact that it so heavily favours registered land commits it not to the investigation of registered land, but rather to encourage voluntary registration thus eradicating the existence of unregistered land (Law Commission)

The LRA ensures that only good faith possessors succeed. A large proportion of squatters are likely homeless people (who know they do not own the land they are adversely possessing). The picture of the ‘bad-faith evil adverse possessor’ going on land is based on a particular archetype of what an adverse possessor is. The truth is that most adverse possessors are vulnerable homeless people. The LRA protects the person who owns large amounts of land and find it difficult to monitor it all (i.e. public authorities).

• Consider the social consequences of this aspect of the registration scheme.

What are the requirements for adverse possession of unregistered land?

In order to establish that adverse possession of unregistered land has taken place, the following requirements must be satisfied (Pye v Graham, Powell v McFarlane):

1. Factual possession –

   1. Lord Browne Wilkinson said in Pye v Graham that “The question is simply whether the defendant has disposed the paper owner by going in to ordinary possession of the land for the requisite period without the consent of the owner”

      1. Slade J said in Powell v McFarlane that broadly speaking factual possession will be made out where “the alleged possessor had 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”

   2. The possession must be exclusive (Marsden v Miller)

      1. Scott LJ (with whom Sir John Megaw agreed) accepted that in order to obtain or retain possession of land, a person must have an “appropriate degree of exclusive physical control’ and “an intention to take possession, to the exclusion of all others”

   3. The question as to whether or not a person is in possession is contextual:

      1. Where the land is suitable only for very limited purposes, it will be relatively easy to show possession (Red House Farms (Thorndon) Ltd v Catchpole). In this case the small island in question was unsuitable for any significant agricultural purpose, and so S’s shooting on the land was enough for adverse possession.

      2. Cockburn LJ said that “enclosure is the strongest possible evidence of adverse possession” (Seddon v Smith).

         1. BUT: putting up a fence will not always be enough to take factual possession. The erection of a fence for 24 hours alongside a notice of taking possession was insufficient (Marsden v Miller)

2. Intention to possess –

   1. The intention to possess refers to an intention to exercise physical custody and control on one’s own behalf and for one’s own benefit (Pye v Graham)

      1. There must be a definite intention to have excluded the world at large (Powell v McFarlane) which was not the case in Pye where S’s actions were equivocal and thus open to interpretation, precluding a definite intention

      2. An owner of a hotel went to prison for rape. While the owner was in prison, the manager lived in the hotel. The manager failed in a claim for adverse possession of the hotel, but was successful in a claim for the car park because he had charged people to enter. This showed that he intended to control the land (Carroll v Manek and Bank of India)

      3. The leader of an organised squat was able to claim adverse possession as he made decisions as to whether or not to allow new squatters in. He had therefore taken possession by controlling access (Ellis v Lambeth LBC)

   2. There are four key elements to the intention to possess, pursuant to Lord Browne Wilkinson in Pye v Graham:

      1. The relevant intention is S’ subjective intention and not O’s intention

      2. Only an intention to possess is necessary, an intention to own is not required

      3. The intention only needs to relate to the time being – the intention does not need to remain forever

      4. There only needs to be an exclusion “insofar as the law allows”

   3. Putting up a fence can be indicative of an intention to possess. This was true where S parked his refreshment trailer on a bit of land and began enclosing it with shrubs and fencing – adverse possession had taken place (Balevents Ltd v Sartori)

      1. The reason why the fence is put up does not matter given that it still has the effect of excluding others (Hounslow v Minchinton)

         1. BUT: contrast this with Inglewood v Baker where the court said that a fence put up to keep animals in did not show a sufficient intention.

3. The possession must be adverse –

   1. Pye rejects that there is any special meaning for adverse, however the basic premise appears to be that where there is actual consent by O then the...