Possession is Nine-Tenths of Law

“Ownership of land in this country is not absolute ownership. It has always been based on a better right to possession. This is where the phrases ‘possession is nine-tenths of the Law’ comes from” Adverse Possession is defined by N. Hopkins as “acquiring a freehold estate by taking possession of the land, and by continued use to defeat or extinguish existing titles.” The effect of the doctrine of adverse possession is that a person who has possesses the land, which already has existing Paper Owners (PO), for a time specified by a statute can obtain the legal ownership of the land.

Adverse possession, better known as “Squatters Rights”, is when somebody takes possession of a piece of land which does not belong to them, and uses it for the enjoyment and benefit of themselves, in a way which the Paper Owner would use it, but seeks to exclude the Paper Owners title of the land. This is in relation to both registered and unregistered land. The Land Registration Act 1925, (LRA 1925), s. 75(1) stated that adverse possession, in relation to unregistered and registered land should be treated the same; this is governed by the Limitation Act 1980, (LA 1980), which states a limitation period of twelve years, for the Paper Owner to remove the adverse possessor and assert their title of the land against the Squatter. After the twelve year period, the Limitation Act statutorily bars the Paper Owner from removing the Squatter, and the Squatter acquires the title to disputed land. “The Law Reform

Commission’s Land Law and Conveyancing Law Working Group,

Considered the moral argument in opposition to the adverse possessor as being founded on the notion that he is a land-thief”. This report raised the issues which brought about the LRA 2002, to change the existing Law. Due to this new Act the LA 1980 only applies to unregistered land and registered land is dealt with by way of the 2002 LRA. The differences will be examined to decide whether the reforms to the Law on Adverse Possession reflects the view that Adverse Possession is ‘Land Theft’; to do this the pre-existing Law will be examined to show the issues which the Law Commissioners Report had addressed; after which the reformation of the 1925 Act will be examined to show that the new Law has made it more difficult to acquire land which has a Registered proprietor.

For a successful claim of adverse possession there are certain requirements which must be met by the Squatter. Firstly, the Paper Owner must cease to possess the land and the Squatter must show possession and occupation of the land, second, the Squatter must have the intention to possess and exclude all persons from the land, including the Paper Owner, and finally, the possession must be ‘adverse’. The possessor must not acknowledge the true owners title, if the possessor does then the time limitation, under s.15 (1) Limitation Act, will stop. If the Squatter can prove all these criteria then they land has been adversely possessed. However, these criteria’s do have their own obstacles for the Squatter to have a successful legal action.

The Squatter has to meet the certain requirements which have been defined and questioned by the courts and new legislation. Factual possession will be discernible from the fact that the adverse possessor has entered into occupation and is making use of the land. The possessor must prove that they are dealing with the land in the same way in which the Paper Owner would use the land. They must show that they have some appropriate degree of control/custody of the land. The intention to posses, this basically means that the Squatter does everything he can to exclude third parties or the true owner from access to the land and enjoying the land in the way which might be expected by the true owner, this could include the building of a house on the land. The most highly accepted way in which to do this is by the raising of a fence to keep people out, placing locks on the gates, and having signs saying “No trespassers”. The Acts “must provide an equal balance between intention to exclude the true owner, and the intention to merely enjoy the land, in which the true owner may wish so”. “Possession must be ‘open, not secret; peaceful, not by force; adverse, not by consent of the true owner.”

Under s.15 Limitations Act (1980), the limitation period is twelve years. After the twelve years period the Squatter can take action and the Paper Owner is statutory barred from removing the adverse possessor of the land. This is known as the period limitation. The right of the possessor, when a stranger takes control of the land, is governed by s.15 Schedule. 1 Paragraph 8(1): –

“ 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.”

Once the Squatter has adversely possessed a piece of land, the possessor has the right to defend his possessory title from another any other person apart from the True Owner. This is on the bases of how has the better title to the land. The twelve year limitation period does not have to be entirely inhabited by one person, but may extend to several. This usually occurs when a relative dies and someone inherited the land, however this must be immediately for the continuity of the limitation period. Once adverse possession has occurred, the Squatter can defend his title by anyone apart from the true Owner. They still are affected by the rights of a third party, i.e. mortgages, easements and restrictive covenants.

The rules of adverse possession have been established and limitation period gives the adverse possessor the statutory protection from the true Owner of a land, to claim the titles to the land. However, the true Owner has statutory instruments which could make the limitation time period stop. These elements are, expressed written Knowledge of the Paper Owners title to the land. This is when the Paper Owner sends the Squatter a letter expressing the Ownership of the adverse land, or consenting to them using the land; if the Squatter offers payment in either payment for the land or leasing out the land this is the Squatter giving implied acknowledgement of the Papers Owners title; and finally the legal proceedings for the removal of the Squatter. Some of these instruments have disadvantages to the Paper Owner. This is because with the expressed knowledge, the Squatter must acknowledge this communication, therefore if they have ignored the letter of consent then the time period has not stopped.

The previous Law which was governing the registered land from the Squatter was the Land Registration Act 1925 (LRA 1925). S.75 (1) LRA 1925 provided that the limitation period that applies to unregistered land should Act in the same way to registered land, due to the Law Commissioners Report on Adverse Possession, which made the requirements are different from registered and unregistered land. The 1980 Act was used to extinguish the Paper Owners title, however the 2002 Act for registered land is slightly different; the Paper Owner holds the title for the Squatter as a trustee, even though the Paper Owner doesn’t have any rights over the disputed land. This Act was clearly unfair on the registered owner as their ownership of the land is adversely possessed by the possessor without acknowledge.

The LRA 2002 Act introduces a new system of governing registered land which has been adversely possessed. This is dealt with in ss.96-98 and schedule 6. The reforms have reduced the limitation from twelve years down to ten years. After the ten years adverse possession the possessor, under LRA 2002 can apply to the registration office and apply for the re-registration of the title in their name. Unlike in unregistered land, the registered owner is notified of the application for the re-registration and therefore has the chance to respond to the application and can veto the application and has the chance and time to remove the Squatter. This has made it harder to prove that the statutes are legalising land theft because the registrar has to inform the Registered proprietor of the application. Due to this the proprietor can deposes the application.

Under Schedule 6 paragraph 4 the Squatter could be registered on the land if the registered proprietor has not responded to the notification of the Squatter’s intention.

If the Registered proprietor has opposed the application the Squatter may still be able to advance the application and still become the registered proprietor. Schedule. 6 Paragraph 5 it states, “if it’s unconscionable, because of equity by estoppels for the Registered proprietor to dispose the application, [papa 5(2)], where a possessor is entitle to be registered as a proprietor, i.e. when someone inherited from a Registered proprietor or where Squatter has a contract to buy the land and has been in possession for ten years adversely, [Paragraph 5(3)], or boundaries disputes, [Paragraph 5(4)].

If the Squatter is unsuccessful under schedule 6 Paragraph 5 but remains in possession unopposed for a further 2 years could re-apply for registration under schedule 6 Paragraph 6: – which states that

(1) Where a person’s application under paragraph 1 is rejected, he may make a further application to be registered as the proprietor of the estate if he is in adverse possession of the estate from the date of the application until the last day of the period of two years beginning with the date of its rejection.

(2) 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,

(b) Judgment for possession of the land has been given against him in the last two years, or

(c) He has been evicted from the land pursuant to a judgment for possession.

Before the 2002 reformation of Land Registration Act 1925 it was argued that the Law on adverse possession was unfair to the registered proprietor in registered land. This was because the Squatter only ha to establish the same requirements of the limitation period in the 1980’s Act. This was unfair because the registered proprietor would lose the land which was registered under their name; because of the land being registered the Squatter wouldn’t be able to have their name on the register, therefore the Registered proprietor would be holding the land in trust of the Squatter but without any power to remove them. The Law Commissioner’s Report seeks to change this unfair Act and gave a number of recommendations for Parliament to look at. This lead to the changes discussed above and therefore because the registered proprietor is notified of the application for the re-registration of the land into the Squatter’s name, they can protect their interests in the land by opposing the application. This does not follow the view that the Acts of Parliament are legalising land theft.

The case of Pye v United Kingdom derived from the cases of JA Pye (Oxford) Ltd v Graham. In Pye v Graham it was in relation to the Law of adverse possession. In the dispute between the two the judgements by the national courts brought up the question of the limitation Act violating Article. 1 of the first protocol of European Court of Human Rights (ECHR), which states: –

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possession except in the public interest and subjected to the conditions provided by the Law and general principles of international Law.”

The applicants, (P) were the owners of a piece of land which they allowed Graham, (G), to use for his farming; the licence which G had to use the land had expired and P had refused to grant another licence; however, G stayed in occupation of the land until 1997 when he filed for possession of the land from P because he had been Adversely possessing the disputed land.

The case had used all the worn out all the domestic remedies of the national legal system. This therefore led the case to the ECtHR for their judgement on whether the limitation Act violated the ECHR article.

The argument on the convention rights being violated was arose by the Court of first instance, by Neuberger J in his concluding judgement on the facts, because the current Law on Adverse Possession was a violation of the peaceful enjoyment of their possessions. This lead to the appeal in the court of appeal for clarification on whether the current Law did violate Article 1 of the first protocol. In the Court of Appeal (CA) the judgement was that the limitation Act did not violate, this is because the Act does not deprive the owner of the peaceful judgement without a period of time to recover the disputed land.

The appeal reached the House of Lords (HL) which decided to reverse the judgement of the CA in relation to requirements of Adverse Possession in relation to the intention to posses the land. Buckinghamshire County Council v Moran, “the Squatter must manifest an intention to occupy the land for his own benefit and didn’t have the intention to acquire ownership”; this was because the Graham has shown willingness to pay for the land doesn’t show intention to possess. The HL held that G had established all the requirements which are required for adverse possession, the requirements of factual possession and the intention to possess; this judgement held that P would hold the land as a trust for G and have no legal title over the land.

Due to this judgement P complained to the ECHR stating that the judgement violated Article. 1 Protocol 1 of the convention, “the peaceful enjoyment of his possession”. The case reached the ECHR who had agreed that P’s rights had been violated; their decision was that the Limitation Act had deprived P of possession of his land. The question then arose as to could this be justified by public interests. In James v UK it was held that the transfer of property could constitute for public interest and the state can enjoy a large ‘Margin of Appreciation’ because the national domestic courts are better at deciding what is in the best public interest, and the passing of the land registration Act showed that the problem of Adverse possession was based on public interest, this was because the land was a limited resource, and it was in the public interest that it should be used, maintained and improved. The ECHR held that the state could not justify the violation of the P enjoyment for possession and therefore held that they were in violation of the convention and the UK was to be fined for this breach.

After this decision, under Article. 43 of the ECHR, the UK invoked a Grand Chamber of all ECHR judges to appeal the decisions of the ECHR. The Grand Chamber held that originally the taking of the land from P without compensation would satisfy the violation of Article. 1 protocol. 1 ECHR; however, due to the long standing limitation period and how little P needed to do to stop the land being adverse is in the general interest of the public to stop compensation to people who do not observe the long standing Law on Adverse possession. Therefore, it was held that the limitation Act did not violate the conventions. The issues of public policy was raised here; the floodgate argument would have applied had the ECHR Grand Chamber allowed the UK government to pay compensation, because had they, the number of cases which would arise because the land owner had not observed the limitation period would be unfair on public interest.

Bibliography

1. Buckinghamshire County Council v Moran, [1990] Ch. 623, [1989] 3 WLR152 CA
2. Hopkins, N. “The Informal Acquisition of Rights in Land”, 2000, Sweet & Maxwell. Pp 217
3. JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419 HL
4. James v UK [1986] 8 EHRR 123
5. Mulcahy v Curramore Property Ltd [1974] 2 NSWLR 464 (Handout pg 23)
6. O’Leary “Adverse Possession At the Sawn of the Twenty First Century”, http://www.islr.ie/Reviews/2004/pdf/Adverse-Possession.pdf
7. Powell v McFarlane [1979] 38 P&CR, per Slade J
8. Pye v United Kingdom [2006] 43 ERHH 43, [2008] 46 ERHH 45
9. Seddlon v Smith [1877] 36 LT 168
10. Stroud, A. “Making Sense of Land Law”, 2005, Oxford University Press, pp. 71
11. Tecbild Ltd v Chamberlain [1969] 20 P&CR 633 CA Sachs LJ said at (642-643)