Adverse possession review


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Adverse possession review

  1. 1. Adverse Possession Adverse possession (sometimes called squatter’s rights) occurs when an estae owner’s rights are extinguished by his failing to evict a trespasser from the land within a prescribed period of time (12 years unregistered land). There is a new regime covered by sections 96- 98 and Sch 6 LRA 2002 and it introduces a new regime for dealing with adverse possession in relation to registered title (obviously the changes do not affect unregistered land). A squatter will not be able to apply to be a registered proprietor with possessory title after 10 years adverse possession. The onus is, therefore, shifted squarely upon the shoulders of the squatter. The registered proprietor and others interested in the land will be notified of the application. If the application is unopposed within a period of 2 years, the squatter will become the new registered proprietor of the land. How is adverse possession acquired? It can be acquired inter vivos gift, gift under will, mortgage and possession. o Buckinghamshire CC v Moran 1989: “extinguishes the rights of the true owner to recover the land, so that the squatter’s possession becomes impregnable, giving him title superior to all others” (Per Nourse LJ) There is NO statutory definition of an adverse possession! What is adverse possession? o Harrow LBC v Quazi (2004): the squatter must show that he is in actual possession of land. Once satisfied, the squatter is entitled to remain in peaceful enjoyment of the property without disturbance by anyone except a person with a better right to possession. It does not matter that he has no title (Per Lord Millet) It is required that the squatter show: Buckinghamshire CC v Moran 1989  Dispossession or discontinuance of land  For a fixed period of time  Intention to actually possess  And actual possession Relevant Statutes: -Unregistered Land:  Limitation Act 1980: s. 15(1): the land owner cannot claim land after 12 years. The proprietor is time barred!  S. 17: title is extinguished.  12 year time period -discontinuance in dispossession -factual possession -intention to possess -Registered Land: -Land accrued before October 13th, 2003:  Limitation Act 1980 and Land Registration Act 1925: s. 75 (1): title is not extinguished but instead the registered proprietor holds it on trust for the adverse possessor.  S.75: squatter could apply to registrar to have interest registered supported with appropriate evidence. The proprietor has 65 days to respond and the adverse possessor is not to be deemed the purchaser.
  2. 2.  S.70(1)(f):under this old regime, the squatter could have had an overriding interest over a purchaser. -Land accrued after October 13th, 2003:  LRA 2002 came into effect and becomes relevant. This legislation does not refer to a trust.  Sch 6 LRA 2002 para1 (1): “may apply”  Sch 6 LRA 2002 para 2 (2): “give notice”: possesses for 10 years and could apply to be registered as a proprietor. (Difference between 1925 and 2002 legislation).  Sch 6 LRA 2002 para 4: “if no objection”  Sch 6 LRA 2002 para 5: “three conditions”: if the proprietor objects, the squatter must show 1 of 3 things/conditions: 1. Would be unconscionable to do so (proprietary estoppels) 2. Squatter for some reason is entitled to the property (will or intestacy). The squatter may have been a propective purchaser under a bare trust where the vendor did not transfer title. 3. Reasonable mistake on a boundary dispute.  Sch 6 LRA 2002 para 9: “no priority”: this is rejected as the squatter may make a second application to be registered as proprietor of the estate. 1) 10 years period of possession 2) Apply for title 3) Notice to the proprietor 4) 65 days to respond -No responses, squatter claims title.If the proprietor objects, the squatter can gain title by one of three ways: 1. Estoppel 2. Intestacy or valid will 3. Reasonable mistake in relation to boundary o Reform in 2002 paved the way for Sch 6. The Commission tried to get rid of adverse possession. Dockray says academics have 3 reasons for this. He added an extra one. 1. Encourages land owners not to sleep on their rights. 2. The land may become unmarketable as it has no purpose sitting there unused. 3. Innocent squatter mistaken about ownership and may have spent on the land. 4. It facilitates the investigations that the title in land to unregistered land. (This has limitations in unregistered land and it has no bearing in registered land). Adverse possession is needed to force land owners to make use of their land. o Establishing Adverse Possession: o Buckinghamshire CC v Moran 1989: Unregistered land. The court held that the letter was admissible and not an offer of terms of settlement. Where the paper owner has a future intention for use of the land this will not prevent a successful claim for adverse possession. Facts: the squatter fenced off and incorporated land belonging to the Council into his own garden. He later secured it with a lock and chain, the Council argued that the
  3. 3. squatter was unable to establish an intention to possess as he knew of the Council’s future plans to use the land as part of a road diversion. Held: the court was satisfied that the squatter had demonstrated an intention to possess in spite of the Council’s future plans for the land.  Length of Time: relevant time runs at the date of the dispossession or discontinuance.o Rains v Buxton (1880): discusses the difference between dispossession and discontinuance. Dispossession is when a registered proprietor is driven out. A discontinuance is where one person leaves and another person comes in. (requirements make it more difficult for people to adversely possess land)  Factual Possession: there must be a sufficient degree of physical control, the squatter must have physical and exclusive possession of land (excluding the proprietor and all others). This cannot be achieved or enjoyed under lawful title, licence, or permission. The HOL endorsed the decision from Buckinghamshire in Pye (Oxford) Ltd v Graham (2002). o Edgington v Clark 1964: there was an offer to purchase which admits someone has a better title and there was no possession. An offer to buy stops the title from running. The CoA found in favour of Pye. Grazing agreement did not give possession to Graham. After the agreement ended, Graham continued to use the land in the same manner. According to Lord Browne- Wilkinson, the first argument was dismissed and the second argument he disagreed with. Graham was asked to vacate the land and did not, he stored cattle in shed and on land, and he also spread dung on the land and rolled it. It was held that he was in factual possession.  Intention to Possess: the squatter must make it clear that he intends to possess the land, the conduct of the squatter is very important under this requirement. Slade LJ was of the view in Buckinghamshire that there was an intention to possess and intention to own. Lee v Jack: future plans have made it difficult for one to adversely possess. Doesn’t raise the bar for adverse possessors to possess land. Courts have sometimes taken it too far to frustrate legislations. o Pye (Oxford) Ltd v Graham 2002 confirms the Buckinghamshire v Moran case. The squatter need only prove intention to possess and not to own the land. Facts: for several years the defendant had farmed land owned by the claimant under a licence agreement. When the licence expired the claimant refused to grant a new one. The defendant remained in occupation but his subsequent requests for a new licence were ignored. The defendant admitted that he would have been prepared to pay rent if it had been requested. Held: the defendant succeeded in his claim to adverse possession. He had demonstrated the requisite intention to possess and an intention to own the land was not necessary. His willingness to pay rent did not frustrate his claim. o Pubrick v Hackney LBC 2004: low profile is unattractive (Per Neuberger J).
  4. 4. o Hayward v Chaloner 1968: oral periodic tenancy: it is possible to be a tenant and adversely possess land on that expiration. o JA Pye (Oxford) Ltd v Graham: meaning of dispossession: there must be no consent of the proprietor is required. Confrontation is not required either. The key intention here is the intention of the squatter not the owner. Intention to posses is important not intention to own. Therefore, willingness to pay is not conclusive.o Pye v UK: Adverse possession does not breach the right to property as protected under Art 1 of the First Protocol of the European Convention on Human Rights. Facts: An appeal was made to the Grand Chamber of the European Court of Human Rights against the earlier first instance decision that adverse possession was in breach of the right to property as protected under Art 1 of the First Protocol of the European Convention on Human Rights. Held: the Court found by 10 votes to seven that thre had been no violation of Art 1. This is an important case in respect to Human Rights. (this is a possible essay question and it is imperative to know case). The applicant argued loss of title as a breach of Art 1 pr Protocol No 1 of the European Convention of Human Rights. The Government argued that there was no violation of Art 1 and argued Art 6 was the relevant Article. Article 1 was not engaged because the land was purchased in 1975 and land (title) was defeasible and subject to what was prescribed in the Limitations Act 1980 and Land Registration Act 1925. If Art 1 was engaged it wasn’t violated. Title lost by Pye’s own actions and inactions. They argued procedure is consistent with what is practiced in other jurisdictions such as Hungry, Spain and Sweden. At Chamber, two questions were raised. One, does the law limit property rights at the time of acquisition? And if so, was it depriving the owner of an existing right thus breaching Art. 1? The Government argued that 12 years was a long period of time. One must look at the balance of deprivation of title (Pye) and the legitimate aims being pursued. Was Pye’s losing title proportionate? What would have been an appropriate balance? The court concluded there was a breach and UK Government was to compensate Pye. UK referred it to the Grand Chamber. At Grand Chamber it was held that Art 1 was not engaged and Art 6 was relevant were still the argument of the Government. Compensation and procedural protection were not relevant in assessing proportionality. It was held that both majority and first minority were in sync not to deprive Pye of rights. He loss title because of the limitation period. It was intended to regulate limitation period. Statutory provisions were not to deprive property. Proportionality test: the measure was proportionate. Compensatory system would not be complimentary to the aims persuaded under a limitation period. The Limitation period prevents a party from claim under a certain period of time. Lack of procedural protection for the proprietor: 12 years is more than sufficient considering the Plaintiff had to take very little action to recover the land. The value of the land: more than 10 million pounds. If the purpose of the limitation periods are to continue the size of the claim cannot be a relevant factor in the decision. The P in a much better position under 2002 legislation which was not and could not be applied to the facts of this case. there was not a fair balance between the legitimate aims and individual rights.