1. Module 168AP:
LAND LAW ADVERSE POSSESSION
Udara Soysa, Attorney-at-Law, BA(Hons), LLB(Hons), PGDHR, MPA(Colombo)
E-mail: udara2004@gmail.com
Adverse Possession The opportunity to acquire a better title to land than the person who
"legally" owns it and to whom it was once formally conveyed with all
of the solemnity of a deed or registered disposition - Hounslow v
Michinton
Land Registration Act 2002 Establishes a new regime for AP for registered land - registered land
compromises of 85% of all titles
J A Pye v Graham Laid out the rules that establish when a claim of AP might succeed
factually and apply equally registered and unregistered title
If alleged adverse possessor once occupied the land with the
permission of the paper owner, any continued possession after that
permission has ended (lease or license has ended but the claimant
stays in possession) may be sufficient to support a claim of AP if the
intention to possess is shown
How is AP Established?/ Rules and principles can be see in the J A Pye case
When will possession of a
trespasser be sufficient to Along with the decision of Buckinghamshire CC v Moran, it shows that
establish a claim? AP can be established by demonstrating the required degree of
exclusive physical possession of the and, coupled with an intention to
possess the land to exclusion of all others, including the paper owner
with the intention to possess
It is important that person intends to possess the land and put it to his
own use, whether or not he also knows that some other persons had a
claim or right to the land
Claimant is not required to prove that he believed that the land was
his, or wanted to acquire it, but that he meant to exclude all others if
he could - CRUCIAL
Focus of intention is on the claimant, not the land owner -
landowner's state of mind is irrelevant
2. Clowes Development v Walters Claimant's mistaken belief was that land was held under a
license
This means that they simply could not have the relevant
intention to possess- you cannot intend to treat the land as
within your ultimate control if you believe that you are
permitted to be there by the owner
Buckinghamshire CC v Moran Establishes that the actions of the AP is seeking to assert
physical possession of the land also may give to a strong
indication as to whether the necessary intention exists
Physical possession and intention are part and parcel of the
same inquiry: that is, has the claimant established AP?
Enclosing land by a fence may constitute both act of possession
and demonstrate the intention to possess AP?
Changing locks - Blackburn
Grazing animals within enclosed field - Graham
Burden of proving the intention may be lighter in case in which
the true owner has, to the knowledge of the AP, abandoned the
land - Michinton
Hence, unequivocal conduct in relation to acts of possession on
the land is the best evidence of an intention to possess
Physical Possession of the Land As well as demonstrating the intention to possess the land, the
AP must also demonstrate a physical assumption for
possession
One must assess if the squatter has disposed the paper owner
by going into ordinary possession of the land for the requisite
period without the consent of the owner
Factual Possession Powell v MacFarlane - sufficient degree of physical custody and
control for one's own use
Slade J: Taking possession might reside in a series of events, or
some one off activity that is maintained thereafter.
3. It is not necessary for the paper owner to be aware that they
have lost possession, or for the paper owner to be
inconvenienced by the acts of possession
Small acts of custody and control might suffice if the land has
not been abandoned, is inaccessible by the paper owner or is
of such quality that it does not readily admit of the sufficient
possessory acts
Purbick v Hackney Successful adverse possessor cleared a derelict shed, erected a
new roof and fitted a makeshift door and a fixed chain. He
could have done more to secure possession, but he had done
enough in all circumstances.
Neither does it matter that the acts of possession serve a dual
purpose, so long as they give custody and control to the
claimant for his own benefit
Hounslow v Minchinton succesful adverse possessor had fenced off part of the
claimant's land, apparently to prevent the escape of her dogs,
which she exercised on the land.
Counsel for the paper owner submitted that the enclosure was
not designed to exclude the world, but to confine animals, and
therefore is not AP
Court took the view that it was the effect of the adverse
possessor's actions that were important, not the intention in
which they were done
Effect of the fence was to keep out the world as well as keep in
the dogs, it amounted to physical possession
In terms of acquiring custody and control for his own use, it is
the whole of his activity on the land that is relevant - the
individual activities may seem equivocal or trivial, but if taken
together they paint a picture of a person in control of the land,
they will amount to possession
AP in Unregistered Land Ability of the adverse possessor to acquire a better title to the
unregistered land than the paper owner is based on the
principle of limitation of actions - limitation of actions
4. expresses the idea that a person must sue for an alleged wrong
within a specified period of time from the moment the alleged
wrong took place in the context of AP of their land after the
period of limitation has passed
Unregistered land has no exact paper owner
Against an AP, the "paper owner" has no means of recovering
the land, so the adverse possessor has acquired a better title to
the land
AP operates negatively: prevents an estate owner from suing
on his rights and operates to extinguish his title
AP does not actually give a title to the adverse possessor but
by the doctrine of relativity of title, the person now in actual
possession may have the best claim to the land, and may
therefore become the "owner" of it to all intents and purposes
Limitation Period of Unregistered Few General Rules:
Land 1. 12 years from the moment of adverse possession of
unregistered title by the adverse possessor (s15 of the
Limitation Act 1980) - Governed by LRA 2002
2. Where the paper owner of the land is the "sole" charitable
corporation such as a bishop, the period of limitation is 30
years from the moment of adverse possession (Schedule 1,
Paragraph 11 of the Limitation Act 1980)
3. Where the paper owner of the and is the crown, the period
of limitation is 30 years from the moment of adverse
possession (Schedule , Paragraph 11 of the Limitation Act
1980)
4. If the land is owned by someone for life, with remainder in
fee simple to another person, then the limitation period is
either adverse possession of 6 years form the date at which the
interest in the remainder falls into possession (death of life
tenant), if 12 years or more already have been completed
against the life tenant was disposed, whichever is the longer
(S15 of the Limitation Act 1980)
Example: if land is held by A for life, remainder to b, AP for 12
years or more would extinguish A's interest and a further 6
years would be necessary on the death of A to also extinguish
B's interest
5. 5. If current paper owner is a tenant of the land under a lease,
the period of limitation against the tenant is 12 years.
Expiry of the period will therefore, extinguish the tenant's title
against the adverse possessor
However, extinguishment of tenant's title has no immediate
effect on the title of the reversioner (freehold landlord)
because until the end of the lease, the landlord has no right to
possess the land at all
Hence, time does not begin to run against the landlord until the
original term of the lease expires (or is brought to an end)
When the original term of the lease expires, and assuming 12
years of AP against the tenant, the landlord will have a further
12 years to recover the land - S15 Schedule 1, Para 4 of
Limitation Act 1980
*if lease gives tenant an option to renew the lease when it
expires, the AP who has evicted the tenant may also rely on the
right to renew to defeat landlord's claim to possession.
*It is crucial to know when lease has ended - usually expiry of
stated term and for a periodic tenancy, the last period which
rent was paid
Whatever the period of limitation, it starts to run against
relevant paper owner of unregistered title from the first
moment of AP
Smith v Lawson Claimant given a license, so no claim in AP
Eg. if A, the adverse possessor adversely possessed B's land for
12 years, but has left possession before B commences an action
to recover the land, the B's title will be barred and A will be
unable to recover the and from whomever is now in
possession
B's title to the unregistered land has been extinguished
If A has left the land and nobody is in possession, B will have to
retake possession, but have to wait a further 12 years before
being confident of defeating a returning adverse possessor
6. Note: issue is complicated if paper owner applies for first
registration of the title after the adverse possessor has
completed 12 years in AP - in this case, at first registration of
title, the registered proprietor (Against who the AP has run for
the imitation period) is bound only by AP by which he has
notice, or by the rights of an AP BUT ONLY IF the AP is in
actual occupation - S11 of LRA 2002
-> absent notice, an adverse possessor going out of possession,
after completing the relevant period of AP against an
unregistered title will have no rights against the first
registered proprietor
Stopping the Clock of Limited If clock is stopped successfully, paper owner's title is secure,
Unregistered Land unless, AP begins to possess afresh - where clock of limitation
starts afresh
1. Successful action of possession or an action seeking a
declaration of title by the paper owner before expiry of the
period will necessarily "stop the clock" and any claim of AP
would have to begin again - a mere issuing of a claim of
possession i.e. sending a letter, is not sufficient to stop the
clock
2. S29 and S30 of the Limitation Act 1980 provide that an
adverse possessor cannot succeed if they have "acknowledged"
the paper owners title before the expiry of the limitation
period - this may be by payment of rent or written
acknowledge of title
A signed document may be sufficient - Offlue v Bossert
The HOL determined that statement in court pleadings could
amount to acknowledgement of title for purpose of S29 of
limitation act 1980, but also that any written
acknowledgement usually operated only at the time it was
given and did not amount to a continuing acknowledgement
Thus if the AP continued to assert adverse possession after
giving a written acknowledgement of title, time would begin to
run afresh from the date of acknowledgement and AP would
acquire title if a "new" period of limitation was completed
If written acknowledgement is exchanged between adverse
possessor and paper owner "without prejudice" then it does
not operate as acknowledgement in law and may be
discounted
7. 3. Might not be sufficient for paper owner to retake physical
possession of land himself before expiration of limitation
period - however such self help is not always successful and
may attract attention of criminal law - Smith v Waterman
Claimants adverse possession could not be interrupted merely
by paper owner going onto land and doing some symbolic act -
other wise a mere entry on the land at some time by paper
owner would always stop the limitation clock - Zarb v Parry
Landlord must show that he is retaking the custody and
control of the land
Effect of Successful Claim of AP on When evidential base of AP has been proved and limitation
an Unregistered Land period expired
It varies according to proprietary interests of the parties
involved
Effect on Paper Owner
- Colchester BC v Smith and Trustees in the Charity of Sir John
Morder v Hayrick:
once limitation period has run its course in respect of
unregistered land, both paper owners right to sue and their
title are extinguished by operation of statue (S17 of Limitation
Act 1980)
Effect on AP of Freeholds
- traditional position: successful plea of AP a gains
unregistered land does not transfer paper owners title to AP
- it operates negative to prevent paper owner suing the AP and
extinguishes the paper title (S17 of Limitation Act 1980)
- Because AP is not purchaser from paper owner, AP takes all
the land subject to all pre existing proprietary obligations,
whether registered as land charges or not
- Adverse possessor will be bound by burden of unregistered
equitable easements and restrictive covenants because the
adverse possessor can never be "equity's darling"
- however, AP may deal with land as if his own, lease, sell etc or
grant away easements
- adverse possessor does not take, and is not treated as taking
a conveyance from the paper owner
- in practice, an adverse possessor with proof of established AP
can usually find willing purchaser and will convey land by
deed to purchaser
8. Effect of AP on leaseholds
- traditional doctrine: no conveyance of paper owners
unregistered estate to AP but has some unusual consequences
in the context of leaseholds
- successful 12 years adverse possessor against tenant
extinguishes only tenants estate, and landlord has a further 12
years after the the end of the original period of lease to eject
the adverse possessor before he also finds his title
extinguished
- landlord can still bring forfeiture proceedings against lease
tenant for non payment, even though adverse possessor is in
possession - effect is to terminate lease and bring forward
landlord's rights to eject AP
- Fair-weather v St Marlebone Property Co Ltd: once lease
brought to an end, adverse possessor has no right to remain on
land because landlord's right to possession is now active
Substantive nature of adverse Adverse possessor can transfer rights while they are awaiting
possessors rights prior to completing completion of the period - Asher v Whitlock
period of limitation in unregistered
land Transfer period may be added to any period successfully
completed by the old adverse possessor to complete 12 years
Adverse Possession under the If land is registered title but governed by LRA 1925, the same
LRA 1925 (Registered Land) limitation allies as in land of unregistered title, usually adverse
possession of 12 years
Same principle also apply when considering whether paper
owner has managed to stock clock of limitation
Person who has completed 12 years of AP before 13 October
2003 (Date of entry into force of LRA 2002) is entitled to be
registered as proprietor of the land.
Pending such registration, the land is held on trust by the
registered proprietary for successful adverse possession
This entitlement to be registered is enforceable against
purchaser of land from registered proprietor, who by
definition is not in possession of title if adverse possessor is
able to claim an interest that overrides by reason of his
discoverable actual occupation of land within the meaning of
schedule 3 paragraph 2 of the LRA 2002
9. Transferee is not purchaser, right to be registered is binding
under basic priority rule S28 LRA 2002
If adverse possessor has not completed 12 full years of adverse
possession before 2002 act into force, situation is governed
entirely by scheme of 2002 act, even if the adverse possession
was nearing completion on the day act entered into force
Adverse Possession under LRA Fundamental belief that a state guaranteed title, readily
2002 provable from a title register, should not be lost because of the
"mere" possession of a stranger, irrespective of how long that
stranger's possession has lasted
Basic Principle of AP under LRA Under LRA 2002, no period of limitation against a registered
1925 title as registered proprietary interest cannot lose title merely
because another person has adversely possessedthe and for a
fixed period of time -S96 LRA 2002
Even if adverse possessor had factual possession plus
intention to possess, no period of possession itself can deprive
registered proprietor of his title
However, 2002 act recognises that claims of adverse
possession are a fact of life and removing limitations will not
stop disputes between people over the land
The 2002 act therefore establishes an application procedure
whereby the adverse possessor may apply to registrar to be
registered as proprietary of title and this application triggers
statutory scheme in Schedule 6 of LRA 2002
Statutory Scheme of LRA 2002 When a person has been in adverse possession for at least 10
years, ending on the date of making an application, that person
may apply to the registrar to be registered as proprietor
It is important that the adverse possession has occured for 10
years and that it is still currently occurring when the
application was made so that the registered proprietor who
loses his title can make the resigner rectified and recover title
on the factual basis that the adverse possession is false - Baxter
v Mannion
10. Ways to evict the adverse possessor If the registrar takes the view that the application discloses an
under statutory scheme arguable case for registration, application will cause notice to
be sent to the current paper owner (Schedule 6, Para 2 of LRA
2002)
The registered proprietor has three choices, but failure to
respond al all will mean that the adverse possessor will have
the registered title
1. He may consent to the application, in which the adverse
possessor would be registered as proprietor - Balevents Ltd v
Sartori
2. Registered proprietor may object to application - if he
objects then the application for registration cannot be finalised
until the objection has been dealt with
(in absence of negotiated settlement, the nature of objection is
likely to be that factual basis of adverse possession claim is
false and registered proprietor may be advised to object and to
serve counter notice because this allows the registered
proprietor to defeat the application whether or not the factual
basis for the claim of adverse possession exists)
3. Option that is most likely to be pursued - serve counter
notice (either with or without objection). This counter notice
requires the registrar to deal with the application under
Paragraph 5 Schedule 6 to the 2002 act
This means that irrespective of whether factual basics for
adverse possession is made out, the adverse possessor cannot
be entered as the new registered proprietor unless one of the
three exceptional grounds can be made out
if none of the exceptions can be made out, the registered
proprietor will have two further years following the
application by the adverse possessor to recover possession of
the and
recovery of possession during these 2 year grace period is as of
right. if the registered proprietor does not do so within these
two years, then the adverse possessor may reapply at the
expiry of the two year period and will be entered as proprietor
of the title
11. Exceptions Listed in Schedule 6 Paragraph 5 of the LRA 2002
1. Unconscionable for current proprietor to dispossess of
adverse possessor because of an estoppel and the
circumstances are such that the adverse possessor ought to be
registered
- As well as establishing factual possession and intention for at
least 10 years existing on the date of the application,
applicants must also show that he detrimentally relied on
some assurance to be withdrawn
-two examples: where squatter has build on the land in
mistaken belief that he is the owner of it and the proprietor as
knowingly acquiesced in his mistake OR when neighbours
have entered into informal sale agreement for valuable
consideration by which one agrees to sell land to the other but
there is not registration of title - estoppel
2. Where the adverse possessor is for some other reason
entitled to be registered as proprietor
-examples: where squatter is entitled to land under will or
intestacy of deceased proprietor and where squatter
contracted to buy the land and paid the purchase price but
legal estate was never transferred to him -these cases they
usually don't rely on AP
- can be seen in Crossdil v Hodder - exception was to be
interpreted narrowly and should not be used to support AP on
broad view of entitlement
3. there is a boundary dispute concerning adjoining land for at
least 10 years of the adverse possessor and the applicant
reasonably believed that the disputed land to be his, provided
that the disputed land had been registered land for more than
one year prior to the application
-reflects reality of neighbourhood living where exact boundary
line between adjoining properties may be uncertain or altered
over time without any formal transfer of registration
preserves valuable role of AP as practical solution to boundary
disputes
-condition useful in situations where boundaries as they
appear on ground and to title plan do not coincide
12. - Schedule 6 imposes 4 conditions before claim may be
successful and only in one the claimant may acquire title
- three of the 4 conditions are factual and simply need to be
proved in the normal way - that the land of the applicant is
adjacent to which the claim related; that the exact boundary
has not been determined and that the land had been registered
for more than one year
- 4th condition might prove to be problematic - it is whether
for at least 10 years of the period of adverse possession ending
on the date of the application, the applicant or predecessor in
title reasonably believed that the land belongs to him
- this is meant to ensure that adverse possession can succeed
only if they mistakenly and reasonably believe the land to be
theirs, rather than deliberate theft - Zarb v Parry - applicants
belief in ownership was reasonable so succeeded in
establishing title under boundary exception
- IAM Group v Chowdrey made it clear that it was claimants
belief that had to be reasonable not that of his solicitors and
that being told land was not his, did not make his belief
unreasonable
Effect of registration of AP under If AP is successful and is registered as proprietor, he takes land
LRA 2002 subject to any interest affecting the estate, except registered
charge save that if registration is the result of operation of one
of the three exceptions, he also takes land subjected to any
registered charge
