Property week 8
Adverse possession: seminar
Textbook reading
Adverse possession chapter:
• Some legal rights are exempt from the statutory formality requirements: grant of a lease for a
term of 3 years or less is exempt from requirement of a deed.
• Deed - A deed is any legal instrument in writing which passes, affirms or confirms an
interest, right, or property and that is signed, attested, delivered, and in some
jurisdictions, sealed. It is commonly associated with transferring title to property. The
deed has a greater presumption of validity and is less rebuttable than an instrument
signed by the party to the deed.
• Apart from these exceptions, legal estates/ interests cannot be created through informal
dependent acquisition. - can be acquired through independent acquisition.
• 2 means – rights to arise – 1) rules of adverse possession – provide a means of acquiring a legal
estate 2) a no. of doctrines enable the informal acquisition of a legal easement.
• If one uses land, or exercises a right with characteristics of an easement over land, for period
of time, then they may obtain legal title or legal easement.
• Adverse possession typically viewed long use as having negative effect – of extinguishing
previous titles. Remains the case for unregistered land but Land Registration Act 2002 adopts
different approach to the effect. Prescription views long use as being of positive effect - of
implying the grant of a legal easement.
• Buckingham county council v Moran - - difference between the claims – prescription requires
possession ‘as of right’ while adverse possession – posession ‘as of wrong’. Prescription –
intention of the grantor may be significant, while as will be seen, in adverse possesion, focus is
on intention of claimant.
• Adverse possession – describe a claim to title to land founded on possession.
• Rooted in concepts: relativity of title and operation of limitation periods.
• As soon as C enters into adverse possession, they obtain a legal freehold title to the land.
• S15 of the limitation act 1980 – 12 year limitation period for actions to recover land.
• Registration acts as a guarantee of title
First case – House of Lords’ decision in
JA PYE (Oxford) Ltd v Graham – successful claim to adverse possession by Mr and Mrs Graham to
valuable development land of which Pye was registered proprietor.
,Following the loss of his land, Pye brought an action against the UK before European court of Human
Rights. Argued English law on adverse possession was contrary to ECHR and that, as a result, it should
receive financial compensation for loss of its land. Grand chamber of ECHR rejected his claim.
-Pye was the registered proprietor of development land – some 25 hectares - that was next to the
Graham’s farm.
•The land was enclosed by hedges, with one gate to which the Graham’s held the only key.
•Initially, the Graham’s had a license to use the land for grazing. When the initial agreement expired, the
Graham’s requested to renew it, but Pye declined because they were intending to apply for planning
permission to develop the land. - didn’t have permission of Pye –adverse possession.
•However, the Graham’s continued to use the land for grazing and continued to seek renewal of the
license. - continuous use/possession of land Pye did not respond to these requests and he also did
nothing to stop them from continuing to use the land. - no action taken – Pye must take action in
limitation period in order for Graham’s to not hgain adbverse possession over land and be in actual
occupation.
•The Grahams then claimed that they had acquired title to the land through adverse possession. Their
claim was successful.
HELD THAT GRAHAMS HAD ADVERSE POSSESSION
The case in more detail
Pye owned Henwick manor and a substantial amount of land. In 1977 he sold off the farmhouse and
some of the land and retained the disputed land, which consisted of four fields, with a view to develop
it in the future. There was an agreement with the buyer of the farmhouse to graze on the disputed
land. In 1982 The Grahams purchased the farmhouse and in 1983 entered an annual grazing
agreement in respect of the disputed land for which they paid £2,000. The following year, Pye refused
to renew the agreement as he wished to apply for planning permission and thought it would be easier
if the land was not in use. The Grahams were asked to vacate the land at the end of the agreement.
However, the Grahams continued to occupy the land which was fully enclosed, and the gate padlocked
with a key being held by the Grahams. Pye never did apply for planning permission. The Grahams
continued to use the land and the following year requested a new agreement, but this was not
accepted. The Grahams continued to use the land and gave up seeking to communicate with Pye as he
was getting no reply to any correspondence. In 1999 Pye issued proceedings to gain possession of the
land.
Held:
Pye’s claim was defeated by adverse possession of the Grahams.The Grahams were in factual
possession of the land as they were in occupation and had exclusive physical control. Pye was
physically excluded from the land by the hedges and lack of key. They farmed the land in the exact
way they farmed their own land. By remaining in possession and using the land in the way they
thought best they had demonstrated an intention to possess. The fact that the Grahams were aware
of Pye's intended use of the property did not prevent them having the requisite intention to possess.
The law on adverse possession does not infringe the European Convention of Human Rights.
Lord Brown Wilkinson:
"It is clearly established that the taking or continuation of possession by a squatter with the actual
consent of the paper title owner does not constitute dispossession or possession by the squatter for
the purposes of the Act. Beyond that, as Slade J said, the words possess and dispossess are to be
,given their ordinary meaning. It is sometimes said that ouster by the squatter is necessary to
constitute dispossession: see for example per Fry J in Rains v Buxton (1880) 14 Ch D 537 at p 539.
The word "ouster" is derived from the old law of adverse possession and has overtones of
confrontational, knowing removal of the true owner from possession. Such an approach is quite
incorrect. There will be a "dispossession" of the paper owner in any case where (there being no
discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary
sense of the word. Except in the case of joint possessors, possession is single and exclusive. Therefore
if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in
possession of the land but the squatter's subsequent occupation of it in law constitutes possession the
squatter must have "dispossessed" the true owner for the purposes of Schedule 1 para 1: seeTreloar v
Nute [1976] 1 WLR 1295, 1300; Professor Dockray (supra). Therefore in the present case the relevant
question can be narrowed down to asking whether the Grahams were in possession of the disputed
land, without the consent of Pye, before 30 April 1986. If they were, they will have "dispossessed" Pye
within the meaning of paragraph 1 of Schedule 1 to the 1980 Act.
…there are two elements necessary for legal possession:
1. a sufficient degree of physical custody and control ("factual possession");
2. an intention to exercise such custody and control on one's own behalf and for one's own benefit
("intention to possess")."]
Pye v Graham [2003] 1 AC 419
“the question is simply whether the defendant squatter has dispossessed the paper owner by
going into ordinary possession of the land for the requisite period without the consent of the
owner” (at 36).
Office hrs:
Tara: mon 1:30-2:30 wed 11-12 s1.31
Alice: tues 10-12
Lecture 9: (week 7)
Adverse possession
• •Adverse possession is an informal means of acquiring property in land
• •Originally governed by the idea of limitation periods
• •Relativity of title
, • •‘The law will protect a good title against a bad one, and a bad one against a worse one.’ P Birks,
‘Five Keys to Land Law’ in Bright and Dewar, Land Law: Themes and Perspectives (1998)
• •Basis of title in possession
• •Utility
• Legalised theft? - allows us to take something that is initially illegal - trespassing – transfer it
into something legal – ownership.
• Limitation periods – amount of time that must pass for action to be taken – time in which you
have to act.
• 10 or 12 years to become owner – possess something for long enough – become owner – true
legal title.
-Limitation Act 1980
s 15 (1)
“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.”
s 17 (1)
“at the expiration of the period prescribed by this Act for any person to bring an action to recover land
(including a redemption action) the title of that person to the land shall be extinguished.”
Further, in Schedule 1, Para 8 of the Act, the land concerned must be “in the possession of some person
in whose favour period of limitation can run.”
-What’s required for adverse possession?
1.Taking possession of the land (discontinuance or dispossession)
2.Factual possession - claimant must demonstrate that they (and they alone) have been dealing with the
land as an occupying owner would be expected to deal with it. and show intent to possess.
3.Possession must be adverse
4.Possession must continue for requisite period – 10/12 years
Has the paper title owner’s possession ended?
Discontinuance
is where ‘the person abandons possession and another then takes it’
Dispossession
arises by ‘a person coming in and putting another out of possession’ - happens in one act
factual possession + intent to possess
Adverse possession: seminar
Textbook reading
Adverse possession chapter:
• Some legal rights are exempt from the statutory formality requirements: grant of a lease for a
term of 3 years or less is exempt from requirement of a deed.
• Deed - A deed is any legal instrument in writing which passes, affirms or confirms an
interest, right, or property and that is signed, attested, delivered, and in some
jurisdictions, sealed. It is commonly associated with transferring title to property. The
deed has a greater presumption of validity and is less rebuttable than an instrument
signed by the party to the deed.
• Apart from these exceptions, legal estates/ interests cannot be created through informal
dependent acquisition. - can be acquired through independent acquisition.
• 2 means – rights to arise – 1) rules of adverse possession – provide a means of acquiring a legal
estate 2) a no. of doctrines enable the informal acquisition of a legal easement.
• If one uses land, or exercises a right with characteristics of an easement over land, for period
of time, then they may obtain legal title or legal easement.
• Adverse possession typically viewed long use as having negative effect – of extinguishing
previous titles. Remains the case for unregistered land but Land Registration Act 2002 adopts
different approach to the effect. Prescription views long use as being of positive effect - of
implying the grant of a legal easement.
• Buckingham county council v Moran - - difference between the claims – prescription requires
possession ‘as of right’ while adverse possession – posession ‘as of wrong’. Prescription –
intention of the grantor may be significant, while as will be seen, in adverse possesion, focus is
on intention of claimant.
• Adverse possession – describe a claim to title to land founded on possession.
• Rooted in concepts: relativity of title and operation of limitation periods.
• As soon as C enters into adverse possession, they obtain a legal freehold title to the land.
• S15 of the limitation act 1980 – 12 year limitation period for actions to recover land.
• Registration acts as a guarantee of title
First case – House of Lords’ decision in
JA PYE (Oxford) Ltd v Graham – successful claim to adverse possession by Mr and Mrs Graham to
valuable development land of which Pye was registered proprietor.
,Following the loss of his land, Pye brought an action against the UK before European court of Human
Rights. Argued English law on adverse possession was contrary to ECHR and that, as a result, it should
receive financial compensation for loss of its land. Grand chamber of ECHR rejected his claim.
-Pye was the registered proprietor of development land – some 25 hectares - that was next to the
Graham’s farm.
•The land was enclosed by hedges, with one gate to which the Graham’s held the only key.
•Initially, the Graham’s had a license to use the land for grazing. When the initial agreement expired, the
Graham’s requested to renew it, but Pye declined because they were intending to apply for planning
permission to develop the land. - didn’t have permission of Pye –adverse possession.
•However, the Graham’s continued to use the land for grazing and continued to seek renewal of the
license. - continuous use/possession of land Pye did not respond to these requests and he also did
nothing to stop them from continuing to use the land. - no action taken – Pye must take action in
limitation period in order for Graham’s to not hgain adbverse possession over land and be in actual
occupation.
•The Grahams then claimed that they had acquired title to the land through adverse possession. Their
claim was successful.
HELD THAT GRAHAMS HAD ADVERSE POSSESSION
The case in more detail
Pye owned Henwick manor and a substantial amount of land. In 1977 he sold off the farmhouse and
some of the land and retained the disputed land, which consisted of four fields, with a view to develop
it in the future. There was an agreement with the buyer of the farmhouse to graze on the disputed
land. In 1982 The Grahams purchased the farmhouse and in 1983 entered an annual grazing
agreement in respect of the disputed land for which they paid £2,000. The following year, Pye refused
to renew the agreement as he wished to apply for planning permission and thought it would be easier
if the land was not in use. The Grahams were asked to vacate the land at the end of the agreement.
However, the Grahams continued to occupy the land which was fully enclosed, and the gate padlocked
with a key being held by the Grahams. Pye never did apply for planning permission. The Grahams
continued to use the land and the following year requested a new agreement, but this was not
accepted. The Grahams continued to use the land and gave up seeking to communicate with Pye as he
was getting no reply to any correspondence. In 1999 Pye issued proceedings to gain possession of the
land.
Held:
Pye’s claim was defeated by adverse possession of the Grahams.The Grahams were in factual
possession of the land as they were in occupation and had exclusive physical control. Pye was
physically excluded from the land by the hedges and lack of key. They farmed the land in the exact
way they farmed their own land. By remaining in possession and using the land in the way they
thought best they had demonstrated an intention to possess. The fact that the Grahams were aware
of Pye's intended use of the property did not prevent them having the requisite intention to possess.
The law on adverse possession does not infringe the European Convention of Human Rights.
Lord Brown Wilkinson:
"It is clearly established that the taking or continuation of possession by a squatter with the actual
consent of the paper title owner does not constitute dispossession or possession by the squatter for
the purposes of the Act. Beyond that, as Slade J said, the words possess and dispossess are to be
,given their ordinary meaning. It is sometimes said that ouster by the squatter is necessary to
constitute dispossession: see for example per Fry J in Rains v Buxton (1880) 14 Ch D 537 at p 539.
The word "ouster" is derived from the old law of adverse possession and has overtones of
confrontational, knowing removal of the true owner from possession. Such an approach is quite
incorrect. There will be a "dispossession" of the paper owner in any case where (there being no
discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary
sense of the word. Except in the case of joint possessors, possession is single and exclusive. Therefore
if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in
possession of the land but the squatter's subsequent occupation of it in law constitutes possession the
squatter must have "dispossessed" the true owner for the purposes of Schedule 1 para 1: seeTreloar v
Nute [1976] 1 WLR 1295, 1300; Professor Dockray (supra). Therefore in the present case the relevant
question can be narrowed down to asking whether the Grahams were in possession of the disputed
land, without the consent of Pye, before 30 April 1986. If they were, they will have "dispossessed" Pye
within the meaning of paragraph 1 of Schedule 1 to the 1980 Act.
…there are two elements necessary for legal possession:
1. a sufficient degree of physical custody and control ("factual possession");
2. an intention to exercise such custody and control on one's own behalf and for one's own benefit
("intention to possess")."]
Pye v Graham [2003] 1 AC 419
“the question is simply whether the defendant squatter has dispossessed the paper owner by
going into ordinary possession of the land for the requisite period without the consent of the
owner” (at 36).
Office hrs:
Tara: mon 1:30-2:30 wed 11-12 s1.31
Alice: tues 10-12
Lecture 9: (week 7)
Adverse possession
• •Adverse possession is an informal means of acquiring property in land
• •Originally governed by the idea of limitation periods
• •Relativity of title
, • •‘The law will protect a good title against a bad one, and a bad one against a worse one.’ P Birks,
‘Five Keys to Land Law’ in Bright and Dewar, Land Law: Themes and Perspectives (1998)
• •Basis of title in possession
• •Utility
• Legalised theft? - allows us to take something that is initially illegal - trespassing – transfer it
into something legal – ownership.
• Limitation periods – amount of time that must pass for action to be taken – time in which you
have to act.
• 10 or 12 years to become owner – possess something for long enough – become owner – true
legal title.
-Limitation Act 1980
s 15 (1)
“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.”
s 17 (1)
“at the expiration of the period prescribed by this Act for any person to bring an action to recover land
(including a redemption action) the title of that person to the land shall be extinguished.”
Further, in Schedule 1, Para 8 of the Act, the land concerned must be “in the possession of some person
in whose favour period of limitation can run.”
-What’s required for adverse possession?
1.Taking possession of the land (discontinuance or dispossession)
2.Factual possession - claimant must demonstrate that they (and they alone) have been dealing with the
land as an occupying owner would be expected to deal with it. and show intent to possess.
3.Possession must be adverse
4.Possession must continue for requisite period – 10/12 years
Has the paper title owner’s possession ended?
Discontinuance
is where ‘the person abandons possession and another then takes it’
Dispossession
arises by ‘a person coming in and putting another out of possession’ - happens in one act
factual possession + intent to possess
