Right to Exclusive Possession

In the 1980s Charlotte leased the strip of land adjacent to her beach hut from Brightsea Council. This meant that she was given permission to enter and occupy the land and so the lease effectively conferred on her the right to exclusive possession. However when the lease expired in 1990, Charlotte continued to use the land; this meant that she entered into a period of adverse possession. Adverse possession generally occurs when a person (or ‘squatter’) acquires title to the land by taking and being in possession of it for a sufficient period of time [1] .

In order for Charlotte to establish a claim for property rights to the land, she must first show that she adversely possessed it by proving that she satisfies the two main criteria confirmed by Lord Browne-Wilkinson in the landmark case Pye (JA) (Oxford) Ltd v Graham: that she had both factual possession of the land and the necessary intention to possess it for the purported period of adverse possession [2] . In Powell v McFarlane Slade J defined factual possession as exercising a sufficient ‘degree of physical control [which must be]…single and exclusive’ [3] and that the squatter must have been ‘dealing with the land…as an occupying owner might have been expected to deal with it’. From 1995, five years into the purported period of adverse possession, Charlotte installed a brick barbecue and erected a fence and a padlocked gate. This seems to be appropriate evidence to demonstrate her factual possession since all these alterations are performed according to her wish and not the Council’s, and these are all physical additions to the land that have changed its appearance. Furthermore, it was stated by Cockburn CJ in Seddon v Smith [4] that an ‘enclosure is the strongest possible evidence of adverse possession’. Although there have been cases where it was held that enclosures in the form of fences did not constitute sufficient evidence for factual possession, the reasoning does not seem to be applicable here. This is because it was deemed that the squatter had intended to use the fence for other reasons, such as to prevent a senile family member from straying in Fruin v Fruin [5] , rather than to exclusively possess the land. But in this case Charlotte erected a fence and a padlocked gate to deter people from breaking into her hut, which is an action that can be expected from property owner.

Another element of factual possession is that the squatter must be exercising the possession as a trespasser rather than as one who is entitled to do so due to permission conferred by the owner. However, in 1990 when Charlotte’s lease expired, she was informed by her friend that the strip of land was part of the Council’s plans for redevelopment. She assured her that she would return the land to the Council if it she was asked to vacate it, and in 2000 when Malcolm, a council surveyor, came to look at the land, he complimented Charlotte on the way she was taking care of the land. One may argue that these two factors may act as an implied licence for Charlotte to use the land. Hence, she was in possession of the land not as a trespasser but someone who had been granted permission to do so. This idea is propounded by Lord Denning M.R. in Wallis’ Cayton Bay Holiday Camp Ltd v shell Mex and BP Ltd [6] who held that because there was an implied licence the farmer had not defeated the petroleum company’s title to the land. As a result, this meant that the squatter’s possession, no matter how strong or continuous, is unable to disturb the paper owner’s title [7] . Therefore, since possession must always be adverse, it may be argued that Charlotte did not factually possess the land. Furthermore, it was held in this earlier case that earmarking land for a future use could prevent adverse possession until the intended use for the land was abandoned. If this is the case, then perhaps Charlotte’s period of adverse possession did not begin until last month where the Brightsea Herald accurately reported that the Council has abandoned its development plans for the seafront. Consequently, Charlotte has not been in adverse possession for a long enough period to apply for registration. However, in the more recent case Pye v Graham, the House of Lords held that it would only be in very rare occasions that an intended future use will prevent adverse possession. Furthermore, Nourse LJ in Buckinghamshire CC v Moran [8] dismissed the implied licence theory as Lord Denning’s ‘own’ ‘heresy’. In addition, the Limitation Act 1980 provided that a licence will not be implied simply ‘by virtue of the fact that [the claimant’s] occupation is not inconsistent with the [owner’s] present or future enjoyment of the land’ [9] . Thus, in this respect, one may infer that Charlotte has factually possessed the land since 1990.

The second requirement, previously mentioned, for Charlotte to establish adverse possession is also known as the animus possidendi. Although historically it was believed that the requisite intention meant an intention to own the land, the House of Lords in Pye v Graham held that it was not necessary for the squatter to show an intention to own the land; one only had to shown an intention to possess the land ‘in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with paper title’ [10] . This test of intention is objective and so it should be demonstrated by conduct where one has acted consistently with a claim to exclusive possession. Thus in this case, it seems that by erecting a fence and a gate that is padlocked, Charlotte has openly and clearly shown that she wishes to exclude the world at large. Furthermore, although she knew that the Council had future redevelopment plans for the strip of land, therefore implying that she did not intend to own the land, Charlotte could still adversely possess the land since she intended to occupy it for the time being, and during this period, everyone is excluded, including the paper owner. Further to this point is the concern whether a squatter can still have the intention to possess when he or she knows that the true owner has a future use for the land. Prior to Pye v Graham, various authorities such as Leigh v Jack [11] indicated that ‘a squatter could not have the necessary intention to possess the land if he was aware that the owner intended to [use it] in the future’ [12] . However this notion was rejected by the Court of Appeal in Buckingham CC v Moran and by Lord Browne-Wilkinson in Pye v Graham who considered this ‘suggestion [as] heretical and wrong’ [13] . Thus, based on these authorities, one may infer that Charlotte can still have the intention to possess the strip of land even though she was aware of the Council’s future plans.

Now that it has been established that Charlotte has adversely possessed the land since she satisfies the two requirements, she should have the right to be registered as the legal owner, providing she shows that she has been using the land for the necessary number of years. Since Charlotte began the adverse possession in 1990, this means that by 13th October 2003, when the new adverse possession regime under the Land Registration Act (LRA) 2002 came into force, she has completed and exceeded the requisite period of 12 years of adverse possession, which is under the old regime of Land Registration Act (LRA) 1925. As a result, the new regime does not apply to Charlotte.

because even though one assumes that the period of adverse possession commenced between 1st January and 2nd October 2000 inclusive, since it is unknown what the exact date she began to adversely possess the land,

since it is unknown what the exact date Charlotte began the adverse possession, one would need to clarify this first. But for the purposes of this exercise, if one assumes that it commenced any time between 1st January and 2nd October 2000 inclusive, then the new adverse possession regime under the Land Registration Act (LRA) 2002 will not apply to her since it only came into force on 13th October 2003. As the strip is a registered piece of land owned by Brightsea Council,

her registration

For factual possession to arise, Charlotte must also show that she was in possession to the exclusion of the world at large, including the paper owner, the Council.

Whilst under the lease, Charlotte used the strip of land as a storage space and it seems that she continued to do so after the lease expired in 1990 until 1995. Utilising an area of land as storage space

Adverse Possession and Article 1 of the European

Convention

This clearly corresponds to what Slade J said in Pye (JA) (Oxford) Ltd v Graham (from here forth Pye v Graham), that

In order to establish he has a claim by adverse possession, Fred must show that he and Captain Flint had both the factual possession and the intention to possess the land for the duration of the purported period of adverse possession1. Factual possession is defined as exercising ‘complete and exclusive physical control’ over the land2. Both Fred and Captain Flint appear to have had this control for the relevant period, both using the land as they wished. However it was noted in Seddon v Smith3 that the enclosure of an area of land is the ‘strongest possible evidence of adverse possession’, and thus Captain Flint‘s failure to fence off the land may weaken Fred‘s claim to factual possession. The possession must also be adverse to the paper owner; any written or signed acknowledgement of the paper owner’s

1 JA Pye Ltd v Graham (2003) 1 AC 347 2 Buckinghamshire CC v Moran (1990) Ch 623, CA 3 Seddon

To show the requisite intention to possess, Fred need not necessarily show intention to own the land, but must show ‘the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with paper title’5. This intention is to be inferred from conduct and thus Fred must show him and Captain Flint acted in a manner which is objectively consistent with a claim to exclusive possession on their own behalf. Such conduct must be sufficiently plain that the paper owner, if present on the land, would clearly appreciate that the claimant is not merely a persistent trespasser, but is actually seeking to dispossess him6. The actions of Captain Flint in growing his in developing the land for his own use would seem to be acting in a manner consistent with a claim to exclusive possession. The facts are silent though as to whether Mr. Rubble was ever present on the land, but given that he knew of the use and did not think either Captain Flint or Fred was seeking to disposes him, it seems likely there may be evidence against objective intention to disposes.