Land Law Seminar 4- Adverse Possession (07/03/18)
1) ‘The real force of adverse possession is now effectively confined to unregistered titles in
land’ (Kevin Gray and Susan Francis Gray, Elements of Land Law (5th edn, OUP 2009) para
9.1.20.)
a) Is this claim true?
To what extent?
b) What are the underlying legal and social factors?
Legal;
Certainty in the law, settling disputes, marketability of the land (need certainty of
ownership), conveyancing practice and more
From LC254-
The justifications for AP;
10.6- Customary to account for land in order to protect defendants from stale claims and
to encourage plaintiffs not to sleep on their rights (unregistered land ultimately depends
on possession)
10.7- Land would be unmarketable if ownership and possession are ‘off’ and there is no
method for the squatter to acquire title (can occur when; true owner has disappeared and
squatter has assumes ownership for a period or there have been ‘off register’ dealings so
the register no longer reflects the ‘true’ ownership of land
10.8- The law of adverse possession can prevent hardship in cases of mistake (squatter
may have mistakenly believed they owned it (maybe due to uncertain boundaries) and
incurred expenditure because of this)
10.9- A title to unregistered land is relative, depending ultimately on possession. Those
bets entitled to the land are the one with the best right to possession. (10.10- this is the
strongest justification for AP but won’t normally have any application for registered
land—see below)
Justification in relation to registered land;
10.13- When the registered proprietor has disappeared and can’t be traced. The AP
would fulfil a useful role here even if they are a ‘land thief’ as it ensured the land
remains in commerce- not sterile
10.14- When there have been ‘off register’ dealings. Register in this case wouldn’t
reflect the ‘true’ title so there are reasons the occupier should be registered proprietor.
These cases don’t involve ‘land theft’ and denied registration could make the land
unsalable (examples include; an agreement to a land swap under a “gentleman’s
agreement” but this isn’t registered, registered proprietor dies and land taken over by
relative wanting to inherit but no steps were ever taken to register or when one property
has two registered titles (e.g. house and a garage) but when sold one of the titles (the
garage) is not registered
10.15- Cases when the register is not conclusive. Can occur when the boundaries are
undetermined (can be ‘land theft’ or mistakenly so fall under next point (10.16)) or there
is a lease of 21 years or less (short lease so takes effect as overriding and mostly treated
as unregistered land so these justifications apply)
10.16- Possession as a result of a reasonable mistake of rights. Can happen because of
mistaken boundaries or through an invalid transaction. In these cases AP can be justified
on the grounds of hardship and there are parallels/overlaps with proprietary estoppel
Social; Land is a scares resource so helps with utilisation, helps with neighbour relations (in
boundary disputes and example gave in class of ‘land grabbing’
c) Can the claim be justified?
How?
2) In January 1990 Lizzie conveyed to Marianne an unregistered freehold property, which
included an area of scrub land (‘the disputed land’). Marianne intended to clear this land
and to build a house upon it when she could raise the necessary finance. Six months later
, Lizzie, who owned the adjacent unregistered freehold property, conveyed it to Anna. There
was no marked boundary between Anna’s land and the disputed scrub land and Anna
assumed the disputed land was hers. After clearing the land, Anna’s children exercised their
ponies and played there. Anna also erected a shed to keep her family’s belongings. In 2001,
Anna received a letter from Marianne’s solicitor demanding she vacate the disputed land.
Anna then dismantled the shed, although her children continued using the disputed land as
a play area.
In 2004 Anna started to use the disputed land in connection with her builder’s business. She
replaced the boundary fencing around the land and stored her plant and machinery there.
She also constructed in the fencing a gateway, giving access to the road, which she kept
locked.
In 2013, concerned with increasingly vocal complaints from Marianne, Anna instructed a
surveyor to establish who owned the disputed land. The surveyor’s report clearly showed
that the disputed land belonged to Marianne. However, Anna took no action as a result.
In September 2017 Anna removed her equipment and started to build a workshop on the
land. This was the last straw for Marianne, who said she would sue. Anna then wrote to her,
offering to pay a cash sum in settlement of the dispute. Marianne refused to sell and issued a
claim form claiming possession of the land.
d) Advise Anna.
o Issue(s)
Adverse possession- establishing title through possession rather than being PO
Does Anna the meet the requirements for AP?
o Rules/relevant law and define/explain terms/concepts
Requirements for AP;
a. Dispossession or discontinuance
Limitation act 1980, sch 1(1) ‘accrued on the date of…discontinuance’
So right of action around July 1990
Palfrey v Palfrey [1973] 229 EG 1593 (CA)
‘slight acts’ by owner can negative discontinuance (Powel v McFarlane
[1979] 38 P&CR 452 (Ch) 468. Does the letter sent in 2001 do this?
b. Must be adverse
Limitation act, sch 1(8)(1)
Buckinghamshire County Council v Moran [1989] 1 Ch 623 (Ch) and Pye v
Graham [2002] UKHL 30, [2003] 1 AC 419
c. Factual possession- appropriate degree of physical control (shed suggests this,
look at intent for someone else not to use it. Does a shed on a small part show
this?)
Must be adverse- not by licence
Must be open- ‘open, notorious and unconcealed’ (Lord Advocate v Lord
Lovat (1880) 5 App Cas 273 (HL Sc) 291, 296
Paper owner could have reasonably noticed AP’s actions. It was possible on
a reasonable inspection to know (Roberts v Swangrove Estates Ltd [2007]
EWHC 513 (Ch), [2007] 2 P&CR 17 [43]
d. Intention to possess
Test of exclusive possession- intention ‘to exclude the world at large,
including the owner…made clear to the world’ (Powel v McFarlane)
Not the intention to own, just possess and use as an owner
Don’t need to know they don’t own the land
Had the intention to possess from the beginning
Adding time periods together, clock is ‘restarted’ if actual possession or
intention to possess is interrupted
1) ‘The real force of adverse possession is now effectively confined to unregistered titles in
land’ (Kevin Gray and Susan Francis Gray, Elements of Land Law (5th edn, OUP 2009) para
9.1.20.)
a) Is this claim true?
To what extent?
b) What are the underlying legal and social factors?
Legal;
Certainty in the law, settling disputes, marketability of the land (need certainty of
ownership), conveyancing practice and more
From LC254-
The justifications for AP;
10.6- Customary to account for land in order to protect defendants from stale claims and
to encourage plaintiffs not to sleep on their rights (unregistered land ultimately depends
on possession)
10.7- Land would be unmarketable if ownership and possession are ‘off’ and there is no
method for the squatter to acquire title (can occur when; true owner has disappeared and
squatter has assumes ownership for a period or there have been ‘off register’ dealings so
the register no longer reflects the ‘true’ ownership of land
10.8- The law of adverse possession can prevent hardship in cases of mistake (squatter
may have mistakenly believed they owned it (maybe due to uncertain boundaries) and
incurred expenditure because of this)
10.9- A title to unregistered land is relative, depending ultimately on possession. Those
bets entitled to the land are the one with the best right to possession. (10.10- this is the
strongest justification for AP but won’t normally have any application for registered
land—see below)
Justification in relation to registered land;
10.13- When the registered proprietor has disappeared and can’t be traced. The AP
would fulfil a useful role here even if they are a ‘land thief’ as it ensured the land
remains in commerce- not sterile
10.14- When there have been ‘off register’ dealings. Register in this case wouldn’t
reflect the ‘true’ title so there are reasons the occupier should be registered proprietor.
These cases don’t involve ‘land theft’ and denied registration could make the land
unsalable (examples include; an agreement to a land swap under a “gentleman’s
agreement” but this isn’t registered, registered proprietor dies and land taken over by
relative wanting to inherit but no steps were ever taken to register or when one property
has two registered titles (e.g. house and a garage) but when sold one of the titles (the
garage) is not registered
10.15- Cases when the register is not conclusive. Can occur when the boundaries are
undetermined (can be ‘land theft’ or mistakenly so fall under next point (10.16)) or there
is a lease of 21 years or less (short lease so takes effect as overriding and mostly treated
as unregistered land so these justifications apply)
10.16- Possession as a result of a reasonable mistake of rights. Can happen because of
mistaken boundaries or through an invalid transaction. In these cases AP can be justified
on the grounds of hardship and there are parallels/overlaps with proprietary estoppel
Social; Land is a scares resource so helps with utilisation, helps with neighbour relations (in
boundary disputes and example gave in class of ‘land grabbing’
c) Can the claim be justified?
How?
2) In January 1990 Lizzie conveyed to Marianne an unregistered freehold property, which
included an area of scrub land (‘the disputed land’). Marianne intended to clear this land
and to build a house upon it when she could raise the necessary finance. Six months later
, Lizzie, who owned the adjacent unregistered freehold property, conveyed it to Anna. There
was no marked boundary between Anna’s land and the disputed scrub land and Anna
assumed the disputed land was hers. After clearing the land, Anna’s children exercised their
ponies and played there. Anna also erected a shed to keep her family’s belongings. In 2001,
Anna received a letter from Marianne’s solicitor demanding she vacate the disputed land.
Anna then dismantled the shed, although her children continued using the disputed land as
a play area.
In 2004 Anna started to use the disputed land in connection with her builder’s business. She
replaced the boundary fencing around the land and stored her plant and machinery there.
She also constructed in the fencing a gateway, giving access to the road, which she kept
locked.
In 2013, concerned with increasingly vocal complaints from Marianne, Anna instructed a
surveyor to establish who owned the disputed land. The surveyor’s report clearly showed
that the disputed land belonged to Marianne. However, Anna took no action as a result.
In September 2017 Anna removed her equipment and started to build a workshop on the
land. This was the last straw for Marianne, who said she would sue. Anna then wrote to her,
offering to pay a cash sum in settlement of the dispute. Marianne refused to sell and issued a
claim form claiming possession of the land.
d) Advise Anna.
o Issue(s)
Adverse possession- establishing title through possession rather than being PO
Does Anna the meet the requirements for AP?
o Rules/relevant law and define/explain terms/concepts
Requirements for AP;
a. Dispossession or discontinuance
Limitation act 1980, sch 1(1) ‘accrued on the date of…discontinuance’
So right of action around July 1990
Palfrey v Palfrey [1973] 229 EG 1593 (CA)
‘slight acts’ by owner can negative discontinuance (Powel v McFarlane
[1979] 38 P&CR 452 (Ch) 468. Does the letter sent in 2001 do this?
b. Must be adverse
Limitation act, sch 1(8)(1)
Buckinghamshire County Council v Moran [1989] 1 Ch 623 (Ch) and Pye v
Graham [2002] UKHL 30, [2003] 1 AC 419
c. Factual possession- appropriate degree of physical control (shed suggests this,
look at intent for someone else not to use it. Does a shed on a small part show
this?)
Must be adverse- not by licence
Must be open- ‘open, notorious and unconcealed’ (Lord Advocate v Lord
Lovat (1880) 5 App Cas 273 (HL Sc) 291, 296
Paper owner could have reasonably noticed AP’s actions. It was possible on
a reasonable inspection to know (Roberts v Swangrove Estates Ltd [2007]
EWHC 513 (Ch), [2007] 2 P&CR 17 [43]
d. Intention to possess
Test of exclusive possession- intention ‘to exclude the world at large,
including the owner…made clear to the world’ (Powel v McFarlane)
Not the intention to own, just possess and use as an owner
Don’t need to know they don’t own the land
Had the intention to possess from the beginning
Adding time periods together, clock is ‘restarted’ if actual possession or
intention to possess is interrupted
