The Nature of Adverse Possession - Essay Example

• In terms of land law, the limitation period for actions for land recovery is 12 years. If a trespasser holds possession of a given piece of land for more than 12 years, the legal owner holding the ownership papers is statute-barred from taking back his land.
• If 12 years pass, the paper owner’s title is generally extinguished.

Period for Adverse Possession

• The twelve-year timeframe is usually counted from the time the trespasser takes adverse possession of a given stretch of land. The owner of the official papers is then considered as being ‘dispossessed’.
• Adverse possession does not necessarily require one person to have the land but can be passed on to another person who would then rely on the combined periods.

Requirements for Adverse Possession

• Factual Possession: The trespasser must have the land.
• Adverse to the rights of the paper owner: The possession must be inconsistent with the rights of the land owner. There, however, lacks any requirement about whether the paper owner should be aware or not of the trespass as can be seen in Rain v Buxton. Nonetheless, if the possession is based on a given legal entitlement, then it cannot be termed as adverse.
• Intention to possess: The trespasser should have the intention to possess the land (animus possidendi), or otherwise the possession cannot be adverse.

Can the path and the workshop be claimed under adverse possession?

• Time of adverse possession: Kevin has owned the land from 1993 to 2013, hence the time of possession is> 12 years.
• Factual possession: Kevin has taken care of the land and erected a permanent building on the land. The council has not had the land in this period while Kevin has been actively using the land for 20 years. Courts must have evidence of the land being possessed as passed in Buckinghamshire County Council v Moran.
• The Council’s possession of the land is limited to shortcuts. The courts need continuous possession with some form of development. Trespass is not sufficient as was seen in the case of Powell v McFarlane.
• Land suitable for limited use as per the rules given in Red House Farms (Thornton) Ltd v Catchpole – the land bordering the cottage was overgrown and hence had limited use for the council.
• Adverse to the rights of the owner: The Council needs land for the Country Park while Kevin needs land for the workshop and right of way, hence the criteria for adverse possession.
• Presence of implied license: The council has not objected for over 20 years despite the fact the Council’s management team uses the land as a shortcut and could see the developments made by Kevin. An implied license is limited by the Limitation Act 1980, Schedule 1, paras 8(4).
• Intention to possess: The courts need proof that the trespasser needs to use the land (animus possidendi) as given in Powell v McFarlane. The trespasser’s approach to possession does not matter; however, he must have intentions to possess the land exclusively.  The trespasser must have the intent to take full control of the land and exclude everyone else including the paper owner.
• Kevin has cleared and constructed a building, hence proof of animus possidendi.
• Courts infer the intention to possess from acts of factual possession such as Kevin erecting the warehouse and using the land for over 20 years.
• Adverse possession cases usually occur in vacant lands and where the possession of the land is taken by a trespasser in the interim.
• Animus possidendi contains an intention to keep others away in one’s name and behalf, including the land’s paper owner as defined in Powell v McFarlane.

Conclusions and Implications

• Kevin can gain the use of the warehouse and his path by applying under adverse possession. Kevin has been using the land for over 12 years, thus satisfying the time of possession.
• Kevin has erected a permanent building as well as cleared the land, thus satisfying factual possession.
• The Council’s use of the land as a shortcut does not satisfy factual possession.
• Kevin’s use of the land is adverse to what the Council needs. The Council has not objected to the use of the land for over 20 years, satisfying adverse possession.
• Kevin first cleared the land and then went on to build a brick warehouse. The warehouse and the path have been in use for 20 years, hence satisfying animus possidendi.
• Courts can prove Kevin’s intention to possess through his factual possession.