Define the Following Terms of Land Law in Adverse Possession Flashcards

Illustration of the policy reasons for AP
Many of the justifications offered for the doctrine of adverse possession arise out of the limitations of the traditional method of conveyancing (unregistered land), where there may be considerable uncertainty about who owns a particular piece of land. The interests of certainty and the market in land require a rule that actions to recover possession may not be brought after a certain length of time, otherwise ‘stale’ claims would haunt landowners and purchasers indefinitely. Adverse possession thus provides a way of curing defective titles in unregistered land since after the required period of possession, the paper owner cannot evict the squatter.

The fundamental elements of adverse possession were identified:

Factual Possession:
G was a farmer who had occupied some 25 hectares of P’s land under a grazing license. P refused to renew the license because it wanted vacant possession of the land in order to get planning permission to develop it. G continued to occupy the land, keeping animals on it all year round, maintaining and improving it, and excluding everyone from it. An occupying owner could not have done more, and the House of Lords found that G had clearly been in factual possession of the land.
I.e. Farmed the land including grazing cattle, maintained the boundary, trimmed the hedges and re-seeded the land, further, the paper owner had no key to the gate to the land are sufficient to establish factual possession.

Intention to possess:
an intention to possess was sufficient, the adverse possessor must simply have intention to possess and not an intention to own
He only must show that he intended to exclude the paper owner and not that he believed the land was his
Where the squatter is willing to pay rent if asked, the claim is not defeated for adverse possession. Lord Browne-Wilkinson stated that there is no ‘inconsistency between a squatter being willing to pay the paper owner if asked and his being in the meantime in possession’.

Possession must be adverse:

“Factual possession signifies an appropriate degree of physical control… Everything must depend on the particular circumstances but broadly, I think what must be shown is that the alleged possessor has been dealing with the land as an occupying owner might have been expected to deal with it and that no one else has done so”

Intention to possess:
“animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title so far as is reasonably practicable and so far as the process of the law will allow”

The sort of behaviour the trespasser will be required to show in order to claim adverse possession was illustrated. From 1971, Moran had used as an extension to his garden a patch of land owned by the council which they intended to use for a future bypass; his predecessor had probably done the same since 1967. Moran built a new fence enclosing the land, and added a new gate and lock. The council finally noticed in 1985 and sued for possession.

Where the adverse possessor is aware that the paper owner had a future intended use for the land, this does not defeat a claim. The fact that the paper owner had a future intended use for the land did not stop the defendant from adversely possessing it

Factual possession:
B and his daughter were let a flat by a former tenant in 1981 and took up residence. At that time the flat was in such a bad state of repair that the local authority had condemned it as uninhabitable. B spent a considerable amount of time and money repairing the flat, the Court of Appeal found that B’s acts were sufficient to establish factual possession.

Factual possession insufficient:
playing on the land by children and tethering of ponies was not enough. B claimed to have acquired a title to the plots by adverse possession, the acts of such possession being (a) allowing B's children to play there (b) grazing ponies there and (c) the erection of a rough fence by an unspecified person at an unspecified time on the boundary of the plots adjacent to the road. It was held that the acts alleged by B were insufficient to amount to possession adverse to A

Possession must be adverse
Possession clearly cannot be adverse if it is enjoyed with the paper owner’s permission. It was held that “if one looks to the position of the occupier and finds that his occupation, his right to occupation, is derived from the owner in the form of permission or agreement or grant, it is not adverse”

Overruled by Pye v Graham/ Limitation Act 1980:
The adverse possessor does not have to act inconsistently with the paper owners intended use:
“The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong. The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner”

If the paper owner writes to the squatter granting her a license to use the land, on the face of it, since the squatter now occupies the land with permission, the possession can no longer be adverse.
The paper owner wrote to the squatter giving her permission to remain on the land for the rest of her life, the result was that “so far as B was concerned, even though she did not accept the terms of the letters, BP would, in the absence of any repudiation by her of the two letters, have been bound to treat her as in possession as a licensee on the terms of the letters”
Probably because she failed to respond to the letter, the paper owner was deemed to have ended the adverse possession.

Exceptions upon application of adverse possessor where the RP objects (legally entitled to the land in question)
A purchaser of registered land who is in actual occupation, but to whom the legal estate has never been conveyed, is a person in whose favour the period of limitation "can run", after the limitation period has expired, such a purchaser has an "overriding interest" within the meaning of the Land Registration Act. When the vendor's lien disappeared, the plaintiff's possession of the land became "adverse" for the purposes of the Limitation Act; the plaintiff was a person in whose favour the period of limitation could run, and there must be an order for rectification of the register by registration of the plaintiff's name in lieu of the defendant's name in the proprietorship register.

It was confirmed that a shifting population of squatters can satisfy the qualifying period. I.e. the qualifying period can be satisfied by various individuals. There must not be any break between possession of the property

Intention to Possess
the fencing was set up to keep people in instead of out, this was held to be insufficient because although the act is the same, it is the intention which is important.

Where the adverse possessor acknowledges the registered proprietor's title, this will make possession not adverse. This will effectively stop the clock and start a new qualifying period afresh.