Adverse Possession in the Land Law - Essay Example

The phrase ‘adverse possession’ implies aggressive possession of land by a person who does not have legal to it. The person in adverse possession is commonly called a ‘squatter’. However, case law developments over the years in property law have redefined the requirements for proving adverse possession to such an extent that it is not necessary for possession to be aggressive. The phrase adverse possession developed around the concept of a trespasser or squatter peacefully occupying property in a manner which was essentially inconsistent with the paper owner’s use of the property.1 To start with, the Limitation Act 1980 makes provision for a claim for recovery of land only in circumstances where a squatter is in adverse possession, and the action will be statute-barred if it is not commenced within 12 years from the date of the dispossession.2 Schedule 1, Paragraph 8(1) provides as follows:- ‘No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as adverse possession); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.’3 Whether or not Mia has been in actual possession of the property for the requisite statutory term of 12 years can only be determined by reference to the relevant case law. Possession for the purposes of the Section 15 of the Limitation Act 1980 has been restated by the House of Lords in J.A. Pye (Oxford) Ltd. and Others v Graham and Another [2002]. In this case Lord Browne-Wilkinson remarked that the ‘only question was whether the squatter had been in possession in the ordinary sense of the word… 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’.4 In the ordinary sense of the word, possession must contain two essential elements, factual possession as well as an intention to possess. Factual possession was defined by Slade J in Powell v McFarlane (1977) as an exclusive occupation of the land to the extent that a true owner is otherwise entitled to occupy it. ‘The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which the land of that nature is commonly used or enjoyed.’5 This position was endorsed by the House of Lords in J.A. Pye (Oxford) Ltd. Mia and her grandfather before her appear to have been the only persons occupying the property in question. Having regard to the physical nature of the land, which was primarily a grazing field both Mia and her grandfather can be said to have factually occupied the property for a continuous period of at least 20 years commencing in 1986, to the exclusion of all others. The fact that Mia discontinued grazing sheep on the field does not break the chain of possession as Mia continued to occupy the property by maintaining it, collecting berries and parking her caravan on the property. In any event, Schedule 1 Paragraph 1 of the Limitation Act makes provision for possession to continue when one person ceases occupation and the other continues. Schedule 1 Paragraph provides that ‘where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.’6 Moreover, the House of Lords held that when possession is changed by virtue of inheritance that possession is said to be continued. In any event if the property changes hands and the possession constitutes essentially the same activities and/or nature of possession, that possession continues and computation of time will commence from the time of the initial possession.7 The requisite intention to occupy the land was defined by Slade J as an ‘intention, in ones own name and on ones own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.’8 Wilkinson-Browne confirmed this position in the House of Lords ruling in the J.A. Pye case.9 The House of Lords also dispensed with the doctrine that required adverse possession to be in a manner that was inconsistent with the true owner’s.10 Until the J.A. Pye ruling the law had developed around a ruling by the Court of Appeal in Leigh v Jack [1879] 5 Ex D 264 per Lord Bramwell who said, ‘in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it.’11 The mere fact that the Duke permitted Mia and her grandfather to occupy the property is no longer a bar to Mia’s bringing a claim for title to the property in question by virtue of the doctrine of adverse possession. Wilkinson-Browne J said that ‘once it is accepted that the necessary intent is an intent to possess not to own and an intention to exclude the paper owner only so far as is reasonably possible, there is no inconsistency between a squatter being willing to pay the paper owner if asked and his being in the meantime in possession. An admission of title by the squatter is not inconsistent with the squatter being in possession in the meantime.’12 Therefore possession with consent by the true owner will not bar a claim for adverse possession.13 The concept of actual occupation takes on a slightly different meaning under the Land Registration Act 2002 although the new Act fails to provide a definition. The rights and interests of the actual occupation of premises are overriding only insofar as those rights coincide with actual occupation. The impact of this right under the 2002 Act reverses the decision in Ferrishurst Ltd v Wallcite Ltd [1999] 05 EG 161 which essentially held that a purchaser takes title subject to the interest of an occupant whether the interest is registered or not. The spirit and intent of the 2002 Act suggest that actual occupation does not guarantee the existence of any right, but a mere warning.14 The Land Registration Act 2002 now changes the right to acquire title in situations where the claimant believed that he or she owned the property for at least ten of the years to which he claims to have been in adverse possession.15 This provision applies to registered title only and will not apply to property that is unregistered. It appears on the facts that Mia knows that the Duke owns the property. Therefore if the property in question is registered land, Mia’s claim by virtue of adverse possession will not be granted automatically or unopposed. If the title is unregistered Mia can make an application under the Land Registration Rules 2003 supported by the claim that she owns property adjacent to the Duke’s property.16 Bibliography Dockray, M. Adverse Possession and Intention [1982] Conveyancer 256 Ferrishurst Ltd v Wallcite Ltd [1999] 05 EG 161 J.A. Pye (Oxford) Ltd. and Others v Graham and Another [2002] UKHL 30 http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/jd020704/graham-1.htm Viewed January 12, 2007 Land Registration Act 2002 Land Registration Rules 2003 Leigh v Jack [1879] 5 Ex D 264 Limitation Act 1980 Powell v McFarlane (1977) 38 P&CR 452 Read More