Land Topic 3

1
Land Topic 3

• Adverse Possession

2
Adverse Possession

• Adverse Possession is a means whereby an occupier
  of land who is not the owner (a squatter) may
  obtain ownership of the land as against the owner
  (paper owner).
• The method by which a the squatter does this is
  by occupying the land for a specific time which
  for
• Unregistered Land 12 years
• Registered Land since 13th October 2003 10 or 12
  years

3
Adverse Possession

• The reasons for allowing a squatter to obtain
  ownership of land in this way are
• To stop 'stale' claims
• To protect those who have innocently encroached
  from the indefinite threat of an action for
  recovery.
• To ensure that there is always someone in
  possession who is willing to deal with land

4
Adverse Possession

• Time starts to run as soon as
• The paper owner entitled to possession has been
  dispossessed or has discontinued possession
• And
• The squatter is in adverse possession of the land
• Adverse possession requires
• Factual possession
• Intention to possess
• A squatter may take over from another squatter
  and time will continue to run

5
Adverse Possession

• Adverse possession requires
• Factual possession
• Intention to possess

6
Adverse Possession

• Factual Possession
• Possession must be inconsistent with the rights
  of the owner i.e. without the owner's consent
  e.g. not a lease or licence
• Squatter must
• Exercise an appropriate degree of physical
  control
• Deal with the land as an owner might, Powell v
  MacFarlane (1977) 38 PCR 452
• Exclude others including the paper owner from the
  land, Treloar v Nute 1977 1WLR 1295

7
Adverse Possession

• Intention to Possess
• Squatter need only show an intention to possess
  not own
• Squatter must show an intention to exclude others
  including the paper owner
• Squatter need not show that use of the land is
  inconsistent with the paper owner's intended use
• Leigh v Jack (1879) 5 Ex D 264
• Buckingham CC v Moran 1990 Ch 623

8
Adverse Possession

• Intention to Possess (Continued)
• True owner need not know of adverse possession -
  but will be given notice under Sch 6 para 2 Land
  Registration Act 2002
• Squatter may take possession in the belief that
  he or she has a right to the land as a tenant or
  freeholder - note conditions in Sch 6 para 5 Land
  Registration Act 2002
• JA Pye (Oxford) Ltd Graham 2002 3 WLR 221

9
Adverse Possession

• Time will stop running when
• The squatter has made a signed acknowledgement of
  the paper owner's title in writing before the
  limitation period has expired - Limitation Act
  1980 s 29(7)
• The paper owner has commenced legal proceedings
  for possession

10
Adverse Possession

• Remedies of the paper owner to end possession
• Criminal Action
• Criminal Law Act 1977 s7
• Public Order Act 1986 s39
• Civil Remedies
• Proceedings for possession
• Self help
• Beware Criminal Law Act 1977 s 3

11
Adverse Possession

• Time will not run for Unregistered Land
• Children or mental patients limitation period
• Application to register may not be made during
  any period in which the existing registered
  proprietor is suffering from mental disability
• "mental disability" means a disability or
  disorder of the mind or brain, whether permanent
  or temporary, which results in an impairment or
  disturbance of mental functioning
• Fraud limitation period
• Does not run until paper owner could have
  reasonably discovered the fraud

12
Adverse Possession

• Time will not run for Unregistered Land
  (Continued)
• Leasehold Land
• Limitation period runs against the tenant not the
  freeholder
• Trusts
• A person is not to be regarded as being in
  adverse possession of an estate for the purposes
  of this Schedule at any time when the estate is
  subject to a trust, unless the interest of each
  of the beneficiaries in the estate is an interest
  in possession

13
Adverse Possession

• Time will not run for Registered Land
• Disability A squatter may not apply to be
  registered as the proprietor of an estate in land
  during any period in which the existing
  registered proprietor is-
• a. unable because of mental disability to make
  decisions about issues of the kind to which such
  an application would give rise, or
• b. unable to communicate such decisions because
  of mental disability or physical impairment

14
Adverse Possession

• Time will not run for Registered Land (Continued)
• Leasehold Land
• Limitation period runs against the tenant not the
  freeholder
• Enemy or held in enemy territory
• Trusts
• A person is not to be regarded as being in
  adverse possession of an estate for the purposes
  of this Schedule at any time when the estate is
  subject to a trust, unless the interest of each
  of the beneficiaries in the estate is an interest
  in possession

15
Adverse Possession

• Effect of Adverse Possession
• Squatter takes subject to subsisting easements
  and covenants Re Nisbet and Potts Contract 1906
  1 Ch 386 and mortgages Carroll v Manek (2000)
  PCR 173

16
Adverse Possession

• Effect of Adverse Possession - Unregistered Land
• No action shall be brought by any person to
  recover any land after the expiration of 12 years
  from the date on which the right of action
  accrued to him or if it accrued to some person
  through whom he claims that person.
• S 15(1) Land Limitation Act 1980

17
Adverse Possession

• Effect of Adverse Possession - Unregistered Land
  (Continued)
• Limitation Act is not to automatically transfer
  the land to the adverse possessor but to
  extinguish the paper owner's right to the land
  Tichbourne v Weir (1892) 67 LT 735 s 17
  Limitation Act 1980. It is for the squatter to
  seek ownership of the land by registration.

18
Adverse Possession

• Effect of Adverse Possession - Registered Land
• The periods of limitation under the Limitation
  Act 1980 do not apply to registered land - s 96
  Land Registration Act 2002
• A new procedure is set out in Schedule 6 of Land
  registration Act 2002 - s 97 Land Registration
  Act 2002

19
Adverse Possession

• Procedure for Obtaining Registration 1
• After 10 years adverse possession 60 years in
  the case of Crown foreshore squatter may apply
  to be registered as owner
• s 96 Land Registration Act 2002 disapplies s 15
  Limitation Act 1980

20
Adverse Possession

• Procedure for Obtaining Registration 2
• Notice must be given to
• (a) the proprietor of the estate to which the
  application relates,
• (b) the proprietor of any registered charge on
  the estate,
• (c) where the estate is leasehold, the proprietor
  of any superior registered estate,
• (d) any person who is registered in accordance
  with rules as a person to be notified under this
  paragraph, and
• (e) such other persons as rules may provide.
• Para 2 Schedule 6 Land Registration Act 2002

21
Adverse Possession

• Procedure for Obtaining Registration 3
• If recipient of notice objects under Sch 6 para 5
  Squatter must show
• It would be unconscionable for the paper owner to
  object
• The squatter is entitled to the land in any event
• It is a genuine boundary mistake
• If squatter cannot show these then application
  will be refused

22
Adverse Possession

• Procedure for Obtaining Registration 4
• Paper owner now has 2 years to obtain possession
  if fails to do so, Squatter may apply again at
  the end of the additional 2 year period. Paper
  owner can only object if he or she has commenced
  proceedings

23
Adverse Possession

• Application Procedure
• Apply for registration with statutory declaration
• Extent of land claimed and details of boundary
• Date when possession began
• Circumstances in which took possession
• Squatters use of the Land
• Survey
• Class of title - usually possessory

24
Adverse Possession

• Human Rights Act 1998
• JA Pye (Oxford) Ltd v Graham 2002 3 WLR 221
• Current view is that it does not breach human
  rights

25
Adverse Possession