The Doctrine of Adverse Possession

In the past, estate owners had to be vigilant as regards the land that they owned but did not use it for themselves. When someone possessed his land and he did nothing about it, then he loses the title of the land. Today, with the introduction of the Land Registration Act 2002, vigilance is not necessary since the estate owner will be informed by the Land Registry when a squatter applies to be registered as title owner. That change was really important because the number of successful claims for adverse possession has been decreased [1] .

In the case of Buckinghamshire cc v Moran [1990] was highlighted the requirements which must be met to establish a successful claim on adverse possession. These requirements have been confirmed in the case of JA Pye (Oxford) Ltd. and others v Graham and Another [2] which is a recent case and many fundamental principles of adverse possession are discussed in this case. Moreover, this case applies equally whether the disputed land is registered or unregistered. The first requirements which must be met is that the paper owner must stop to possess the land and after that the squatter to move onto the land and starts to behave in the same way as if it was his property. The case of Techbild Ltd v Chamberlain (1969) illustrates this. Some examples of that behaviour are to secure the boundary to exclude others or to add a lock to the gate. Secondly, the possession of the land must occur without the consent of the paper owner. Thirdly, there must be a factual possession as in Powell v Mcfarlane [3] . In this case Mr Justice Slade said: “Factual possession signifies an appropriate degree of physical control”. As Chief Justice Cockburn noted in Seddon v Smith (1877) one very strong evidence of factual possession is the enclosure by fencing. Furthermore, there must be open possession. This qualification is provided in Section 32 of the Limitation Act 1980 which says that possession must not be deliberately concealed. This is because it would be unfair a squatter to succeed to his claim without the paper owner has the opportunity to find out what is happening on his land. There must be an intention to possess, too. The intention to posses is known as “animus possessendi”. Mr Justice Slade in Powell v McFarlane [4] gave the definition of intention to possess which is: “The intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title. . . so far as is reasonably practicable and so far as the process of laws will allow” [5] .Finally, according to Section 29 and 30 of the Limitation Act 1980 if the squatter receive any written acknowledgement of the paper owner’s title the time will stop running in favour of the squatter. The case of Edington v Clark (1964) is an example of this necessary qualification. So, any squatter must satisfy all the conditions above before the time started to run in his favour.

The Limitation Act 1980 put a limit of 12 years in relation to unregistered land. Before the expiry of this period the paper owner can evict the squatter. After the expiration of this period the squatter can claim for being the title owner of the land. Section 96 of the Land Registration Act 2002 provides that the time of 12 years under Limitation Act 1980, after which the paper owner can evict the squatter, will not be valid to registered land. This prevents a squatter to claim for the land just because a specific period of time has passed. Under this new Act the squatter must claim for the title to the registered estate by applying to the Land Register in order to become the owner of the land. The Land Registration Act 2002 set 10 years period of time that the squatter can possess a land and not 12 years as in unregistered land.

Before 1833 “adverse possession bore a highly technical meaning. Today it merely means possession inconsistent with and in denial of the title of the true owner, and not, e.g. possession under a licence from him or under some contract or trust” [6] . From 1833 the only question in relation to a squatter was whether had been in possession in the ordinary meaning of the word. As Slade J says that is still the law. After 1833 the notion of “adverse possession” was reintroduced by the Limitation Act 1939 (section 10) and is exactly the same as in paragraph 8(1) of schedule 1 to the 1980 Act. Slade J noted that: “In my judgement the references to adverse possession in the 1939 and 1980 Acts did not reintroduced by a side wind after over 100 years the old notions of adverse possession in force before 1833″. [7]

After 1925 the law has been changed. In relation to registered land, according to 75(1) of the Land Registration Act 1925 after the expiry of the limitation period the title is not extinguished but the registered owner hold the land thereafter in trust for the squatter. Those provisions in relation to registered land have been changed by the Land Registration Act 2002 [8] . Some recent cases are really important since they take the law in a new direction. The case of J A Rye (Oxford) Ltd v Graham [9] applies to all cases of adverse possession. In Ofulue v Bossert [10] the court of Appeal confirms that all principles of adverse possession of land under the Land Registration Act 1925 have returned to the state where they exist before the Human Rights Act 1998 that came into force in 2000. In that case it was held that the adverse possession as provided in LRA 1925 did not constitute any violation of the registered owner’s entitlement to peaceful enjoyment of his possessions. The most important result from Ofulue was that Lord Browne-Wilkinson called in the case of Pye v Graham, the “heresy” in Leigh v Jack [11] .In this case Bramwelll L.J noted that possession by a squatter is only adverse if his occupation is inconsistent with the paper owner’s plans for the land [12] . The decision in the case of Buckinghamshire cc v Moran [13] has been approved by the House of Lords in Pye v Graham. “Possession need not be inconsistent with the future intended use of the land by the paper owner to be adverse” [14] . This means that the rule in Leigh v Jack has been clearly rejected. Even though, the High Court in Beaulane Properties ltd v Palmer [2005] make a try to resurrect the rule in Leigh v Jack. Here it was held that possession can be adverse when the acts done were inconsistent with the purposes for which the paper were inconsistent with the purposes for which the paper owner thinking to use the land. [15] Moreover in Beaulane Properties ltd v Palmer [16] , Nicholas Strauss Q.C. revived the “heresy”. He reached to the conclusion that the meaning of adverse possession as provided in LRA 1925 needed to be interpreted along these discredited lines to prevent the registered owner’s entitlements under Article 1 to be violated. Beaulane V Palmer, now cannot stand after Ofulue. “ Now that Ofulue has followed Pye v United Kingdom, the reasoning of the Grand chamber will be binding in future English cases where the registered proprietor disputes whether the squatter has proved the required intention to possess the land.” [17]

The fact that the reasoning in that Pye v Unites Kingdom has been incorporated into domestic law it is very important because when the grand Chamber held in 2007 that the LRA 1925 regime did not violate the ECHR, the Land Registry continued to faced the case of Palmer as a binding authority in domestic law. [18]

The Land Registration Act 1997 introduce a new section 123 in the LRA 1925, which says that there must be the requirement of compulsory registration to conveyances by way of gift and assents. In that way the situations for any possible registration of a manor were increased, because many manors pass by being included in a settlement or by assent on the death of the lord. [19] Another important issue in relation to the development od adverse possession through the years is that remains a long standing confusing as to what constitutes “dispossession and the place, if any, of “adverse possession” in the modern law. The concept of “non-adverse possession” is deemed to be the root of the problem. This concept was noted by the common law end equity into the limitation statute of James. Before the enrolment of the Real Property Limitation Acts 1833 and 1874, the rights of the papers owner were not taken away save by a “disseisin” and use of the land by the squatter of a kind that was clearly inconsistent with the paper title. As Professor Dakray says “such inconsistent use was called adverse possession”. [20] According to Denman CJ in Nepean v Doe D. Knight [21] soon after the passing of the 1833 Act it was held that “the second and third sections of the Act… have done away with the doctrine of non-adverse possession, and… the question is whether twenty years have elapsed since the right accrued whatever the nature of the possession.” [22] This statement was made also in Culley v Doe D. Taylerson [23] so what constitutes “possession” in the ordinary sense of the word? Slate L said in Powell’s case: “in the absence od evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land as being the person with the prime facie right to possession.” [24] Slad J adopted this definition from Roman law and by all judges and writers from past. The problem could be avoided saying that there are two elements which are necessary for legal possession. Firstly, “ factual possession” and secondly “intention to possess”. As Slade J said in Powell “factual possession signifies on appropriate degree of physical control.” [25] In vary old cases the judges treated the concept of intention to possess as being necessary that the squatter must have an intention to own the land in order to be in possession. For example in Littledale v Liverpool college [26] Lindley MR mentioned to the claimant relying on “acts of ownership”. In the same way Slade J in Powell mentioned to the necessary intention as being an “intention to own”. However Hoffmann J in Moran case [27] submitted that what is necessary is “not an intention to possess”. [28] The court of Appeal in that case adopted this correct proposition. Now the word “possession” has it’s ordinary meaning and the only question is whether the squatter in factual possession has an intention to possess too.

Furthermore, in many cases squatters show that if the paper owner asked from them to pay for their occupation in the land they would have done it. Lord Diplock in ocean Estates ltd v Pinder [29] indicate that the squatter would be able to pay if the paper owner asked it did not means an absence of an intention to possess. In addition to this the decision of the court of Appeal in the case of R v Secretary of state for the Environment, Ex p Davies [30] was wrong. The decision in Pinder is correct since it is consistent with principle.

Under Section is of the Limitation Act 1980, when the period of limitation starts to runs in favour of a person, then he is in the possession of the land, he being in “adverse possession”. The same use of the meaning of the “adverse possession” has been incorporated in the Land Registration Act 2002. This new Act Set a new regime for the registration of an adverse possessor of an estate in land. “ In brief, a person is in adverse possession for the purposes of the 2002 Act, if but for the disapplication by section 96 of that Act of periods of limitation against a registered proprietor, a period of limitation would run in his favour in relation to the estate under section 15 of the Limitation Act 1980″. [31] It is very important to understand for now and for the future too what the use of the word “adverse” in the context of section 15 of the Limitation Act 1980 was intended to convey. The significant point for present purposes is not that we have to show that there was a deliberate intention to exclude the paper owner. According to Section 15(1) of the Limitation Act 1980 this is not necessary. The only intention that we have to probe is that there was an intention to occupy and use the land as our property. The affect of the Land Registration Act 2002 it is very important since it make it much harder for a squatter who is in possession of registered land to obtain a title for it against the wishes of the owner.

The final and really important step in relation to the development of the doctrine of adverse possession through the year is that after Rye v united Kingdom it was incorporated a compulsory purchase compensation is because of the Human Rights Act 1998 and of the European Court of Justice. The ECJ reached to the conclusion that depriving a land owner of land without any compensation is in breach of article 1 which is referred to the entitlement to the peaceful enjoyment of possessions and is also unlawful, except in the case where a compensation is paid. Moreover “from Pye v UK, it would seem that the present limitation regime in compulsory purchase cases is more draconian even than the then regime for adverse possession.” [32]

In concluding “it might be argued that the law has not significantly changed and there is merely a recognition that the term adverse possession is a term of art and does not hold the meaning which on sight, one might expect.” [33]