Question 2

In 1989 Zeb moved from his farm, Greengate, to live in a nearby village after all his cattle and sheep were
slaughtered as part of a government scheme to control the spread of foot and mouth disease. Florence,
the owner of Hillside, a neighbouring farm to Greengate, told her friends that she was anxious to ensure
that Greengate did not deteriorate in case Zeb decided he wanted to return to farming. She therefore let
her goats graze the fields on Greengate.
By 1992 Florence had regularly repaired the dry stone walls between Greengate and the road to stop the
goats from escaping. In 1994 she installed a permanent water supply and built a shed in which to store
animal feed. When Florence died in 1999, her son, Dylan, inherited Hillside. Dylan continued to graze
goats on Greengate land and repair the walls. Zeb sold Greengate to Macdonald, who asked Dylan to
remove his goats.

Advise Dylan on the basis of each of the following alternative assumptions:

(a) title to Greengate is registered; and
(b) title to Greengate is subject to unregistered land law principles and there had been no sale by Zeb.

ANSWER:

In advising Dylan on the alternative assumptions of the Greengate property as per means of adverse
possession the likelihood of such phenomenon in both the situations are to be taken into consideration.

From the question it is clear that the paper title owner is Zeb and the likely squatter is Dylan continuing
to inherit from his mother Florence. It is clear from the facts that here Florence has adversely possessed
Zeb’s property. Adverse possession means rights of ownership in land acquired by simply taking
possession of the land. There is no such formal conveyance or monetary transaction of the realty in
question. However to claim the property Dylan must satisfy three main conditions:
a) he must show that he had factual possession of the land
b) he must show next that the possession had been adverse to the paper owner
c) he must have had the intention to possess.

Dealing first with factual possession it must first be shown by Dylan that he met this requirement. Time
will only begin to run against Zeb from the date that he was dispossessed and Dylan took possession
instead, here in this case his mother Florence from which he is to inherit. Whether or not factual
possession was satisfied by Dylan a few requirements to prove so must be considered. The trespasser
must, as a matter of fact, be “in possession” of the land. This concept is synonymous with
the concept of exclusive possession – the trespasser must have control of the land to the
exclusion of all other persons, including the paper owner.
“Factual possession signifies an appropriate degree of physical control. It must be a
single and [exclusive] possession….Thus an owner of land and a person intruding on that
land without his consent cannot both be in possession of the land at the same time. The
question what acts constitute a sufficient degree of exclusive physical control must
depend on the circumstances, in particular the nature of the land and the manner in
which land of that nature is commonly used or enjoyed.” (Slade LJ in Powell v
McFarlane (1977) 38 P & CR 452 at 470 – 471).

Generally, clear evidence of exclusion of other persons is required and any continued use
by the paper owner will usually defeat the trespasser’s claim. A mere trespass is not
sufficient – for example the occasional walking over the land could not amount to
adverse possession. In Powell v McFarlane (1977) grazing a cow, coupled with making
hay and limited repairs to fencing did not suffice. Enclosing the land by erecting a new
fence (Buckinghamshire County Council v Moran [1989] 2 All ER 225) or fitting new
locks to doors (Lambeth LBC v Blackburn (2001) 82 P & CR 494) are generally the types
of actions that will be required.

The type of physical control shall be judged in light of the type of property concerned in the question. It is
evident that Greengate is a farm and that Florence had used it to let her goats graze continuously since
1989. By 1992 Florence had regularly repaired the dry stone walls between Greengate and the road to
stop the goats from escaping. In 1994 she installed a permanent water supply and built a shed in which to
store animal feed. All of the above prove her physical control over the land.

The whole notion of adverse possession is that possession must be inconsistent with and
contrary to the rights of the paper owner. It is apparent from the facts that there had
been no permission bestowed on part of Zeb to let Florence possess the land. There is no
such lease or license from either express or implied actions.

This does not mean that possession must necessarily cause an inconvenience or
annoyance to the paper owner (Treloar v Nute [1976] 1 WLR 1295). There is not even a
requirement that the paper owner should be aware that the trespasser is in possession
(Rains v Buxton (1880) 14 ChD 537).

There can be no adverse possession unless the trespasser also has an intention to possess
the land (animus possidendi). There is clear evidence that Florence wanted to prevent
the land from being ruined and from her very conduct of repair and installing of water
supply and building shed it shows that she had intention to possess.
The trespasser’s attitude to ownership is irrelevant. He may know that the land belongs
to someone else or he may mistakenly believe that it is his. Alternatively, he may never
have thought about the question of ownership but simply treated the land as his because
it was there and it suited his purposes.
Whatever the trespasser’s understanding about the ownership of the land, he must
intend to exclusively possess it – in other words he must intend to take control of it as if
it were his own and to exclude everyone else from it. (Slade LJ in Powell v McFarlane
(1977) 38 P & CR 452 at 471 – 472).

It will always be a question of evidence as to whether the trespasser had the necessary
animus possidendi. In many circumstances this will be inferred from his acts of factual
possession – for example, enclosing land by erecting a new fence or fitting new locks to
doors will usually be taken as convincing evidence that the trespasser intends to
establish exclusive possession. (Slade LJ in Buckinghamshire County Council v Moran
[1989] 2 All ER 225).
a) Dylan cannot acquire rights over the land until he has occupied the land for a sufficient length of time.
For this analysis the Act of Land Registration Act 2002 must be given concern to.

The legal requirements for adverse possession itself remain unchanged. However, for
registered land only, title will only be capable of acquisition by following a three-stage
procedure laid down in the Act rather than by acquiring it automatically after 12 years’
adverse possession.

The 12 year limitation period in section 15 of the Limitation Act 1980 is “disapplied” by
the Act in the case of registered land [s. 96]. Hence, a trespasser can have been in
adverse possession for considerably more than 12 years without the paper owner’s right
to possession becoming statute-barred.
However, if a trespasser has been in adverse possession of land for the last 10 years he
can apply to be registered as proprietor of the relevant title [sch. 6, para. 1]. His
application triggers a notification, by the Land Registry, to the registered proprietor who
then has a certain period [to be determined by Rules which have not yet been enacted] to
object.
If the registered proprietor fails to object to the application within the required time
period, the trespasser will automatically be registered as the new proprietor [sch. 6, para.
4].

If the registered proprietor objects within the required time period, the trespasser’s
application will be refused unless one of three grounds is satisfied [sch. 6, para. 5].
The trespasser may be registered in circumstances where the doctrine of estoppel applies
or for Some Other Entitlement to be Registered or by Reasonable Mistake as to
Boundary. From the scenario the ground reckoning boundary shall be applicable due to
Florence’s contributions in maintaining the property as discussed above.
If the trespasser’s application is unsuccessful then the registered proprietor must obtain
possession of the land within the next two years.
If he fails to do so then the trespasser can make a further application to be registered as
the proprietor. He is then automatically entitled to be registered as proprietor and there
is no facility for the registered proprietor to object [sch. 6, paras. 6 & 7].

b) Furthermore if the title to Greengate is unregistered then the issue of Limitation Act 1980 is to be
taken into account and applied to facts accordingly. Adverse possession is a mechanism which
allows a trespasser to acquire title to land and to displace the rights of the ‘paper owner’.
It is based on the principle of limitation of actions whereby an action in the courts
becomes ‘statute-barred’ after a certain period of time. For unregistered land the
squatter has to only surpass the 12 year time period in possession of the land in question.
The limitation period for actions for the recovery of land is 12 years (Limitation Act
1980, s.15). Thus, once a trespasser has been in possession of land for 12 years, the paper
owner is statute-barred from recovering possession. His rights, as paper owner, have
therefore become useless.

Additionally, once the 12 year period has elapsed, the paper owner’s title is actually
extinguished (Limitation Act 1980, s.17).