Peculiarities of the Land Law Case - Essay Example

Land Law Powell v. McFarlane (1977) 38 P & CR 452  Facts of the Case: This Case relates to adverse possession by Powell, of a three-acre land at Surrey, which he was holding possession since 1956, when he was a 14-year-old boy. During that time, he lived with his grandparents in a small place near the disputed land. He used to utilise the land for grazing of his cattle, pasturing etc. between the years 1956 to1973. The Registered owner of the land was a civil servant, McFarlane. (Farlane 1977). In fact, in 1954, Powell had sought permission by way of a letter to the actual owner, McFarlane, seeking permission to use his land, but McFarlane did not respond. He was not regular in visiting his property since he purchased it in year 1952, when he had asked his seller to plant Christmas trees on the land with the idea of harvesting it in later years. However, he could not tend to his land since he was posted at Bonn between the years 1955 to 1967. Subsequent to his return, between the years 1967-1972, the McFarlane’s could make few visits to the property site, but it was clear that his interest in his property was waning. The McFarlanes did not suspect that their land was under the possession of Powell until, in 1972, they noticed the new fencing on their land, which gave rise to suspicion in their minds that perhaps all was not well regarding their claims to the stated property. Powell brought action stating that he was in adverse possession of the said disputed land since 12 years from the period 1960 to1972.In order to substantiate this statement, he had to prove that he had actual possession and control over the said land for the last 12 years. The facts, as observed by Slade J, were that for a person to be in possession, whether legal or illegal, he should be able to bring action for trespass, against any trespasser or squatter, who comes into the said land, without his permission. This is except in the case of a person who has a better title to the land then what he himself has.. In other words, he had to maintain animus possidendi.This means that, when the law has to attribute possession of a land to person who does not have paper title on the said land, he must be in a position to prove that he has both the factual possession as well as the requisite intention to possess the said land. (Farlane 1977). The main issue in the event of alleged possession is that the squatter is dealing with the land as though it is his own, and in a manner that would be used by the true owner, and nobody else. The essence of animus posited is that the squatter, in his own name and on his own behalf, and by omitting the outside world, including the paper owner, has the absolute possession of the said property and he also has the required intention to possess the said property. It goes without reiterating that any person who lays claim to the possession of the land would also have, by extension, the required intent, to possess and would act in a manner that would manifest this intention. The judge observed that it is necessary, that not only should the squatter have the necessary intentions but this intention should also be known to the world at large. “Accordingly, if alleged possessory conduct is open to more than one interpretation and the claimant of adverse possession has not made his intention perfectly plain to the world at large, he will be treated as not having had the requisite animus possidendi." (Gray 2005). If his actions are ambiguous or unequivocal, that it is cogent that his intentions were not to exclude the true owner but only to carry on holding and using the land in the absence of the absence of the true owner. However, in such a case, he would not have dispossessed the owner. Decision: According to the judge, Slade J, the nature of the disputed land of around 4 Acres of land was not suitable for agricultural development since it was of untenable land use and could only be used for pasturing, grazing of cattle, Although enclosure of land is a very important ingredient in adverse possession, this was not carried out in this case, neither was there any locking or barring device placed by Powell to ward off intruders and trespassers off his land. According to the learned judge, there was no indication on the part of Powell, the plaintiff, to dispossess McFarlane, or to use his property as his own, since no perceived evidence was available to suggest that Powell intended to use the land as his own to the prejudice of the true owner, McFarlane. At the most, Powell had carried out certain activities on the disputed land such as grazing of cattle, pasturing and other sundry works. Further, in 1956-57, he had entered the land, as a young boy, simply with the intention of seeking a livelihood by tending to his cattle. Later on, in 1962, once he had established his own business, he used the disputed land for parking of vehicles. In the year 1962, he had done action, which warrants animus possidendi. However, these actions did not serve as a furtherance of his actions in 1957. Held, that the plaintiff Powell did not achieve adverse possession by law of the land of McFarlane. Reasoning of the Judge: The intention of the plaintiff during 1956 -57 could be viewed as being actions on his own account. These actions do not establish animus possidendi, or, the intentions of a small boy of 14 years to seek possession of land, to the exclusion of the whole world, and to all others, including the true owner. The judge reasoned that a small boy could not seek to establish title by possession for what he did for his own account, and on his own behalf and without true intention to obtain possession The judge observed “ Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.” (Farlane 1977). Buckinghamshire CC v. Moran (1990) Ch 623. Facts of the Case: The facts of the case relate to the adverse possession of a piece of land situated at Chanies Avenue, Ames haw, and Buckinghamshire. The Buckinghamshire City Council was the paper owners of the land, which was occupied by Moran since 1971. While acquiring the property in 1971, he was also aware of the fact that the previous owners, Mr. & Mrs. Wall had acquired a possessory title to the plot on which their premise was located. (Buckinghamshire CC v. Moran (1990) Ch 623). The signed declaration received by Mr. Moran from the previous owners through the conveyance of Dolphin Place to the defendant dated 28th July 1971. It was expressed to include, not only the land comprised in the vendors paper title, but also "all such estate, right, title and interest that the vendors may have in or about the remaining part of the plot formerly numbered 206 as aforesaid." (that is, the plot). (Adverse Possession and the Limitation Act. 2006). Mr. Moran and his mother moved into the property and for the next one and half years, being frequently away, he used to visit the property irregularly. He also discarded the earlier lock put on the gate and replaced it with his own lock and key which he held in his own possession. In 1975, when the local tennis club sought permission for laying of drainage system, which would also include the drainage of Dolphin House, the local authorities contacted the defendant, Moran. In a telephonic conversation, Moran indicated that since the last five years he was the owner of the property, including the garden. He had purchased the property from Mr. Wall and his house was built on the said property. This led to a series of correspondence between the defendants and the authorities of the Birmingham shire Council. On 18/12/1975, the County’s Secretary & solicitor wrote to Moran seeking clarification regarding his alleged ownership and requested that proof of the right of use of the disputed land be made available to them. Upon receipt of this letter, on 20/12/1975, the defendant wrote back to the County’s Secretary& Solicitor enclosing the sale agreement between himself and the previous owner dated 28/7/1971 demarcating the area of land. He also enclosed a copy of the declaration received from the previous owner, Mr. Hill, confirming the vesting of rights of property on the remaining part of the plot. He also mentioned that the owner of the Dolphin Place had been the occupier of the land for the last 11 years. On 3/2/1976, the County Secretary & Solicitor replied denying that the land ever belonged to the defendant and refuted the rights, at any time, of the owners of Dolphin Place to use and occupy the land in question. On 22/2/1976, Mr. Moran replied that he had acquired the land through “adverse possession” which was contested by the plaintiffs. However, the Council allowed nine years to lapse before taking up concrete legal proceedings for the legal validation of their rights and it was only on 28/10/1985, that necessary legal steps for issuance of stay orders on the disputed land were moved to court. Decision: In his verdict on the issue, the Judge ruled that the defendant was in the possession of the disputed land for the past 12 years before the beginning of legal proceedings. He had exercised animus possidendi, which is well within Section 15 & 17 of the Limitation Act 1980. “Under the Limitation Act 1980, for example, a twelve year period of adverse possession against an estate owner extinguishes that owner’s title to his estate.” (Gray 2005). Therefore, the Court held that the action of the plaintiffs, Buckinghamshire County Council could not be sustained by law. However, with the permission of the Judge, the Council went into appeal against the verdict. When the Case came up to the Appeals Court, the Court had to assess the aspect of adverse possession from two pre-conditions: 1. Factual Possession 2. Animus Possidendi Regarding factual possession is meant a degree of control, acquired by the trespasser or squatter, to the exclusion of all others, including the whole world, and the paper owner. It was held that by 28/10/1973, Moran had indeed acquired singular, complete, and control over the disputed property. He had even fitted a new lock and chain at the gate and treated the property as would an actual property owner have done for his own property. Regarding animus possidendi, the Court took the view that the defendant was fully conscious of the fact that the Council intended to use the plot for building a road across it at a future time. The argument of the plaintiff’s council that the intention of the defendant was not to act as a trespasser intend to possess the plot but to just use the land till such time the objectives of the Birmingham County Council was realized. However, the Court held that the use of new lock and key by the defendant was ample evidence that he was bent upon possession of the land to the exclusion of all others, including the rightful owner. The other aspects put forth was regarding that there was no sufficient animus possidendi to make a case of adverse possession under Section 15 of the Law of Limitations 1980, unless there exists the intention, to exclude the owner with the paper title in all future circumstances. However, the Court was of the view that the defendant had acquired the adverse possession of the plot by 28/10/1973 and had remained in adverse possession of it ever since that date. There is nothing to suggest that the officials of the plaintiff or their representatives had ever visited the place since that date. The Appeal of the plaintiffs was dismissed. HELD: The council’s claim for possession was barred by the Limitation Act 1980. The Defendant had established the necessary adverse possession. (Adverse Possession and the Limitation Act. 2006). Reasoning of the Judge: The judge of the lower court had dismissed the appeal on the Ground that Section 15 and 18 of the Limitation Act 1980 maintained that if a trespasser has been in possession of land for a period of over 12 years as on the date of filing of application, he could be treated as being in adverse possession. The laws relating to adverse possession would come into effect in such cases and the trespasser could claim title even over that of the paper owner. When the case when for appeals it was held that the defendant, Moran possessed adequate animus possidendi to be treated as the owner. Besides he had also acquired adverse possidendi since he held the possession since 1973 and thus had fully fulfilled the conditions pertaining to adverse possession. These were the reasons why the Appeal Court squashed the appeal. J.A Pye (Oxford) v.Graham (2002)  Facts of the Case The dispute relates to right of possession of 25 hectares of agricultural land at Henwill, Thatchary, and Berkshire, which was held by Pye Ltd. As the registered owners. During the year 1977 Pye sold the other property in the area but retained possession of the disputed land for planning permissions for development. (J.A Pye (Oxford) v Graham (2002) UKHL 30, [2003] 1 AC 419). In the year 1982, John Graham and his wife purchased the Manor Farm, knowing fully well at the time of acquisition that the paper owners of the disputed land belonged to Pye. The entry to the disputed land was only through the gate, the keys of which were held by Mrs. Graham. On 1/2/83 Pye reached an agreement with the Grahams which was valid to 31/12/83 for the use of the land for a total consideration of £2000/- .This agreement also reserved the right of the paper owners to terminate the agreement during this period by given the other party 6 months’ notice. As on 31/12/83 the agreement stood terminated until it was expressly renewed by fresh agreement. However, despite the agreement, the Grahams did not vacate the disputed land on 31/12/83 and remained tending to the disputed land in terms of agricultural work. They did all agricultural activities knowing fully well that there was no written authorization from the owners for them to do so. During June 1984, an agreement was reached by which Pye agreed to sell the standing produce to the Grahams for a consideration of £1100/- which was over by November 1984. Since 1984, no permission was granted to the Grahams regarding the use of land but they continued to use the same from the year 1984 – 1999. The Grahams continued to use the land ostensibly because the owners did not attend to it and also they wanted to make good use of it until the planning permission was granted to Pye. When Pye raised objections to the use of the land by the Grahams, the latter filed Caution Notice for adverse possession in year 1997. However, Michael Graham died on 19.2.1998.On 20.1.1999; Pye issued further legal proceedings seeking possession of the disputed land. As per Section 15 of the Limitations Act 1980, “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 accrues to him, or, if it first accrues to some person first whom he claims, to that person.” (Adverse Possession & the Limitation Act. 2006).  The action was brought by Pye on 30/4/1998 and the questions that naturally arouse were 1. Was Pye dispossessed of the disputed land before 30/4/ 1986 and 2? Were the Grahams in possession for 12 years for fulfillment of title under adverse possession? The learned judge agreed with the contention that the Grahams were in occupation of the land which was very much in their physical control and accessibility. The paper owner, Pye was excluded from the land and the Grahams were clearly in control of factual possession as on 30/4/86. On the contrary, Pye had done nothing to claim ownership on the disputed land since 1986. Their claim was lodged only in 1999, when a clear 12 years had lapsed, thus enforcing the Law of Limitations 1980, which is unequivocal of the fact that a possessor of land for 12 years before the right of action is lodged could claim title to the disputed land under adverse possession. Decision: The Grahams had shown intention to possess the land by the barring of all people and had thus obtained factual possession. Since they had fulfilled the facts concerning adverse possession, they have the title to the disputed land Upon appeal, the Court held that the despite the pleas and appeals to the contrary, the Grahams had used the land exclusively and for the expressed idea of gaining possession for 12 years. Hence, the claim of the plaintiff for disallowing adverse possession is rejected and the Grahams retain title over the disputed land to the exclusion of all others, including the registered owners, Reasons for the Decision: The Grahams occupied and utilized the land as their own property for 12 years and the action by the plaintiff was brought only after 12 years had lapsed. In the classic judgment in Powell v.MacFarlane (1977), it was ruled that if the law is to grant possession of land to a person who does not have any document to title he must be prove that he has factual possession and the required motivation to possess. In this case, the Grahams had done everything on the disputed land, which a true owner could possibly have done. Under such circumstances, they had expressly and unequivocally established that they held the true intention to possess the said land – in other words, they had tried to prove to the world at large, that they wished to established both factual and actual possession on the land. Even given the fact that they would have agreed to surrender the land in the event of its demand by the plaintiff at the initial stages, or, when the planning permission was granted, and also the fact that they were willing to pay the plaintiff for the use of land, did not, in any way, reduce their interest to lay possession of the said land. Further, by not visiting the land and not intending to take early legal proceedings, the plaintiffs had allowed themselves to be placed in a situation where they were constrained to lose possession of the land through adverse possession. (Judgments –JA Pyne (Oxford) Ltd and others v Graham and Another on 4 July 2002. 2002). PART B: Implications of the new Legislature on property laws. “As a result of the Land Registration Act 2002, the law has now changed radically in relation to registered estates.” (Webber 2003). Prior to the establishment of the Land Registration Act 2002, the now repealed Land Registration Act 1925 had been in force. Under these laws, it was easy for squatters to establish possession, once they fulfilled the minimum requirements of possession for stipulated number of years. Thus, “Because an occupier only needed to prove factual possession and an intention to possess, it became far easier for landowners to lose their title inadvertently, through no fault of their own.” (Is the development of English Law on adverse possession incompatible with the Human Rights Act 1998? 2005). The main objectives of the Land Registration Act 2002, besides correcting fundamental lacunas in existing laws which negates the rights of genuine owners and the revenues to the State, is also to be designed to simplify, streamline and up-to-date the registration procedures. Through this Act, it has also sought compulsory Registration of all properties, irrespective of size or type of holdings. The Act of 2002 has also sought to introduce electronic conveyancing (e-conveyance) by which the transactions concerning the buying, selling and dealing in property deals would become speedier, transparent and more accurately documented, with minimum element of discrepancies relating to title and holdings. “Our mission is to "make conveyancing easier for all" - specifically, to develop an electronic system of conveyancing that makes buying and selling houses easier for the general public, conveyancing professionals, and other parties involved in the process.” (E-conveyancing. 2007). The Act 2002 also accounts for Adverse Possession – Schedule 6 of Section 97 provides, that a “A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application. (Schedule 6: Register of Adverse Possession. 2007). (2) A person may also apply to the registrar to be registered as the proprietor of a registered estate in land if— (a) he has in the period of six months ending on the date of the application ceased to be in adverse possession of the estate because of eviction by the registered proprietor, or a person claiming under the registered proprietor, (b) on the day before his eviction he was entitled to make an application under sub-paragraph (1), and (c) The eviction was not pursuant to a judgment for possession. (3) However, a person may not make an application under this paragraph if— (a) He is a defendant in proceedings which involve asserting a right to possession of the land, or (b) judgment for possession of the land has been given against him in the last two years. This is without prejudice whether the land held under adverse possession is registered land or unregistered land. (Schedule 6: Registration of Adverse Possessor. 2007). Therefore, from the above it is quite clear that adverse possession can now only be established where the clear consent and permission of the registered or paper owner is present. Therefore, it is seen that adverse possession is no longer a socially acceptable form of land possession, since not many applications for adverse possession could be validated which fulfill the above-mentioned conditions. The New Act further states, that once the application of the adverse possessor is received by the Land Registry Office, the registered owner is contacted and he is informed about the receipt of a possessory title for the land. The registered owner is given a maximum period within which he has to file his dissent and oppose the registration in favour of the adverse possessor. The registered owner has the option to evict the adverse possessor within a period of 2 years from the date of filing the dissent failing which the adverse possessor would be required to file a fresh application for registration of his claim on the said property. It is seen that although during the time of the enforcement of the Law of Limitations Act 1980, it was possible for squatters or trespassers to gain entry into property, and by utilizing the land as their own. This is during the absence of the true owners, and the fact that sustained labor and efforts were carried out on the disputed land, they were able to establish adverse possession to the exclusion of the true or paper owners. This has been substantiated by enumerable case laws in which judges have ignored the true ownership of property, but have granted verdicts supporting adverse possessors on the strict interpretations of contemporary laws and precedents set by earlier decided cases. , This is primarily due to certain aspects of law in that only one person can be a possessor of a plot of land, at any one given point of time and therefore, there could be only one owner. Although the paper owner is the de facto owner of the disputed lands, due to the irregular nature of caring and tending his land, and his non-availability for long periods, he is under a threat of being dispossessed of his holdings through the actions of Adverse possession: Under which the possessor is able to provide both factual possession and the intentions to possess. But, with the passage of time, the laws in the United Kingdoms have registered sea changes to fall in line with the current thinking, and with increasing complexities in the property dealings, the need for reforms had been felt very essential. The result has been the enactment of the Registration of Property Act 2002, which seeks to water down the cases of illegal possession contravening the rights and privileges of the true and registered owners. As a result of this piece of effective legislation, it is believed that the aspect of adverse possession would be confined to the realms of unregistered property, which need to be registered or cannot be due to equivocal or ambiguities in establishing true title of possession by the parties. With the emergence of e-conveyance and compulsory registration of holdings, it is believed that additional layers of transparency and regularity would become the hallmarks of property transactions. Works cited Adverse Possession & the Limitation Act. (2006). Buckinghamshire county council Moran [1989] 2 all ER 225, court of appeal. [online]. Last accessed 29 October 2007 at: http://www.oup.com/uk/orc/bin/9780199284436/resources/cases_materials/bychapter/chap_21.pdf Buckinghamshire CC v. Moran (1990) Ch 623 (CA). [online]. The K-Zone. Last accessed 29 October 2007 at: http://www.kevinboone.com/lawglos_BuckinghamshireCCVMoran1989.html E-conveyancing. (2007). [online]. Land registry. Last accessed 29 October 2007 at: http://www.landregistry.gov.uk/e-conveyancing/storysofar/?site_preview=allow FARLANE, Powell v Mc (1977). 38P & CR 452 Ch D. Last accessed 29 October 2007 at: http://www.cambridge.org/resources/0521614899/3024_2545_Ch7Exts.doc. FARLANE, Powell v. Mc (1977). Limitation – 1970-1979. 38 P & CR 452 D. [online]. Swarb.co.uk. Last accessed 29 October 2007 at: http://www.swarb.co.uk/lisc/Limit19701979.php FARLANE, Powell v. Mc (1977). 38 P & C R 452n D. Land Registry: Factual Possession. [online]. Land registry.gov.uk. Last accessed 29 October 2007 at: http://www.landregistry.gov.uk/docs/practice_guides/lrpg005/adversepossess/ GRAY, Kevin J (2005). Land Law. 4th ed. [online]. Amazon.co.uk. Last accessed 29 October 2007 at: http://www.amazon.co.uk/gp/reader/0406963770/203-2163423-1218310?ie=UTF8&resultsPage=4&keywords=adverse%20possession&v=search-inside GRAY, Kevin J (2005). Elements of Land Law. 4th ed. [online]. Amazon.co.uk. Last accessed 29 October 2007 at: http://www.amazon.co.uk/gp/reader/0406975779/203-21634231218310?v=searchinside&_encoding=&url=stripsearch&keywords=adverse+possession&Go.x=7&Go.y=8 Is the development of English Law on adverse possession incompatible with the Human Rights Act 1998? (2005). Practical conveyacing.co.UK. Last accessed 29 October 2007 at: http://www.practicalconveyancing.co.uk/content/view/9310/1109/ J.A Pye (Oxford) v.Graham (2002) UKHL 30, [2003] 1 AC 419. Lord Bingham of corn hill. Last accessed 29 October 2007 at: http://www.cambridge.org/resources/0521614899/3026_2547_Ch11Exts.doc. Judgments –JA Pye (Oxford) Ltd and others v Graham and Another on 4 July 2002. (2002). [online]. Www. Parliament.uk. Last accessed 29 October 2007 at: http://www.publications.parliament.uk/pa/ld200102/ldjudgmt/jd020704/graham-3.htm Schedule 6: Registration of Adverse Possessor. (2007). [online]. Office of the Public Sector Information. Last accessed 29 October 2007 at: http://www.opsi.gov.uk/acts/acts2002/ukpga_20020009_en_15 Webber, Gary (2003). The future. [online].The Property Law website. Last accessed 29 October 2007 at: http://www.propertylawuk.net/adversepossessionpyegraham.html                                                                               Read More