Intro:

The law of adverse possession is a legal principle in English law that allows a person who has been in
continuous possession of someone else's land for a certain period of time to claim legal ownership of
that land. It is rooted in the feudal origins of English land law, which recognized that a person's title to
land is only as good as the absence of someone else with a better title. The introduction of the Land
Registration Act (LRA) in 2002 has reduced the chances of a successful adverse possession claim for
registered land, but for unregistered land, the principle still applies and the adverse possessor has a good
chance of success. Additionally, the criminal offense of squatting in a residential building, which took
effect on September 1, 2012, may affect a squatter's ability to claim title. The Pye v Graham case sparked
a debate about the fairness of the law surrounding adverse possession, with some arguing that it should
be easier for people to claim ownership of land they have used and maintained for many years.

Common law has established principles that could potentially strip a landowner of their title, but the
impact of this limitation on land ownership varies in different regions. Common law has been more
concerned with the practical use of land and developing remedies for specific situations than abstract
rights. Adverse possession is a policy that aims to deny legal assistance to those who delay their claims
and ensure that disputes over land ownership are eventually resolved. The case of R v Butler (1950)
established an important precedent in British law, making it clear that it is illegal to live off the earnings
of another person's immoral activities. However, it is unwise to unquestioningly accept the relevance of
adverse possession in modern land law, especially in the context of registered land where the State
guarantees the title of the paper owner in an open, public register.

This suggests that we should be cautious about allowing an interloper to acquire ownership simply by
possessing the land. The LRA 2002 has had a significant impact on adverse possession of registered land,
with a decrease in successful claims since its implementation. The Baxter v Mannion case in the UK
highlighted the importance of solicitors providing thorough and accurate advice to their clients.
However, there is a risk of adverse possessors challenging the ownership of those who neglect their land,
especially if it is owned by the Crown, Church, ancient institutions or local authorities. Modern land law
has one set of rules for establishing adverse possession, but two different sets of rules for the effect of
such a claim on the owner's title.

For unregistered land, the "traditional principles" of limitation apply, while for registered land, the LRA
2002 (with a modification for adverse possession under the LRA 1925) applies. The situation for
registered land governed by the LRA 1925 generally favors adverse possessors.

how Is Adverse Possession Established? The Rules Common to Unregistered and Registered Land:

The question of when a trespasser can claim 'adverse possession' of a property remains critical,
regardless of whether the land is registered or unregistered. The underlying principles governing adverse
possession are not explicitly stated in any statute, but have been developed over time through case law.
Recent decisions have been more favorable to adverse possessors, but there is no clear pattern. The law
on adverse possession in the British Virgin Islands is the same as in England and Wales, but does not
apply to land with public rights of way. The Secretary of State challenged the council's decision to grant
planning permission, arguing that it violated national planning policy.
The High Court ruled in favor of the Secretary of State, stating that the council had not properly
considered the impact of the development on the green belt. This case highlights the importance of
complying with national planning policy and that adverse possession does not violate the human rights
of the original landowner. This case highlights the importance of understanding one's legal rights as a co-
owner of a property and the obligation of banks to comply with those rights in the event of a
repossession. The House of Lords' decision in J A Pye Ltd v Graham (2002) was based on the earlier
judgment in Powell v McFarlane (1977). Adverse possession is proven by demonstrating exclusive
physical possession of the land, along with an intention to possess it to the exclusion of all others,
including the original owner.

Intention to possess:
Slade J in Powell v McFarlane (1977) acknowledged that the requirement for adverse possessors to
"intend" to possess the land to the exclusion of all others is not always straightforward. Pye argued that
the essential intent for adverse possession is to possess, not to own, and to exclude the paper owner to
the extent reasonably possible. This means that the claimant does not need to prove that they believed
they owned the land or intended to acquire it, but simply intended to exclude all others if possible.
Moran has settled much, and Lord Browne Wilkinson clarified that this would be rare. The case of
Stadium Capital v St. Marylebone Property Company plc (2009) suggests that the adverse possessor did
not intend to possess the land in the usual sense, but only to occupy it until it was needed by the
landowner.

This is supported by the case of Lambeth LBC v Blackburn (2001), where Blackburn was able to show that
he intended to possess the land through his actions, even though he knew the land belonged to
someone else and would have accepted a lease if offered. However, in Batt v Adams (2001), the belief
that the land is currently possessed with the permission of the paper owner is fatal to adverse
possession. Blackburn argues that acknowledging that the land belongs to someone else does not
necessarily prevent someone from intending to possess it, but acknowledging that the land belongs to
someone else does prevent such an intention. The Privy Council in Smith v Molyneaux (2016) confirmed
that the giving of unilateral permission, unacknowledged or unaccepted, can lead to the inference that
the adverse possessor no longer had the required intention. Pye and Mitchell have shown that if
someone who is allegedly an adverse possessor had permission from the paper owner to occupy the
land, but continued to stay on the land after the permission ended due to the expiration of a lease or
license, or because of a statute, then this may be enough to support a claim of adverse possession.

However, it can be difficult to prove the intention to possess. The Moran case indicates that the actions
of the adverse possessor to assert physical possession of the land may strongly indicate whether they
had the necessary intention. The inquiry in question is whether the claimant has established adverse
possession, and various acts can be used as evidence of possession and intention to possess. In cases
where the true owner has abandoned the land, the burden of proving intent may be lighter. The best
evidence of intent is clear and unequivocal conduct related to acts of possession on the land, but the
required level of overt conduct may vary depending on the circumstances.

Physical possession of the land:

Lord Browne-Wilkinson argued that overanalyzing adverse possession should be avoided to prevent
confusion and complication. The Court of Appeal's decision in Rashid v Nasrullah emphasized that all
that mattered was the non-permissive possession of the claimant. In Dyer v Terry, the court ruled in
favor of Terry because the land had become a public right of way due to long-standing public usage.
Thorpe v Frank highlighted the importance of good faith and fair dealing in business partnerships, and
clear agreements to avoid disputes. Full disclosure of information in property transactions is important,
as failing to provide all relevant information to potential buyers can lead to consequences.

Adverse possession is an act of possessing land that does not need to serve only one purpose or have a
specific motive. In Minchinton, fencing off part of the claimant's land to prevent the escape of her dogs
was enough to demonstrate an intention to possess. The consequences of adverse possession depend
on whether it's been proven against an unregistered or registered title and the potential impact of
human rights principles and criminal offences.

The impact of human rights on adverse possession:

The Pye case clarified the principles of adverse possession, but did not take into account the Human
Rights Act 1998. Wilson v First County Trust Ltd established that lenders have a duty to act fairly and
transparently, which raises the question of whether the principles of the European Convention on
Human Rights (ECHR) should affect the law of adverse possession. The European Court of Human Rights
(ECtHR) ruled in Pye v UK that the system of adverse possession was a legitimate way for a state to
regulate property rights and was not in violation of the Convention. McDonald v McDonald recognized
the relevance of human rights in disputes between private landowners, but there is no basis to challenge
individual applications of the law unless there are exceptional circumstances. Malik v Fassenfelt ruled in
favor of the plaintiff, emphasizing the importance of fulfilling contractual obligations in property
transactions.

Article 8 of the ECHR could apply in cases where squatters have established a home on private land, but
it would be rare for their removal to be disproportionate. It is possible to enforce human rights
obligations in land disputes between private citizens due to courts being public authorities. The
recognition of horizontal effect was contentious at the time, but has since been accepted. Even if Article
8 is engaged, the paper owner usually has the right to possession as it is the proportionate way of
enforcing their property rights. Currently, the general outcome is that if an adverse possessor obtains
legal ownership, they are not likely to be forced to give up their possession due to a violation of the
paper owner's human rights.

The impact of criminal offences on claims to adverse possession:

The criminalization of squatting in residential buildings is already an offense under section 7 of the
Criminal Law Act 1977. The use of reasonable force in the prevention of crime, apprehension of
offenders, and defense of oneself or others is allowed. The Land Registry initially stated that an adverse
possessor would have their application for title rejected, but the Court of Appeal held that committing a
criminal offense was not a complete bar to achieving title. The Bakewell Management Limited v
Brandwood case established a distinction between acts that were always unlawful and those that were
only unlawful because the claimant did not have the right they were now claiming. The Landnet
publication covers various topics related to land management in Europe, and the Land Registry's original
stance was that an application for title by adverse possession would be rejected outright if the applicant
based their possession on acts that would amount to a criminal offense. Illegality does not necessarily
prevent a successful claim to adverse possession, as long as it does not offend the policy of the rule in
question.
Adverse Possession and Unregistered Land:

The principle of limitation of actions underpins the ability of an adverse possessor to gain a better title to
unregistered land than the paper owner. This principle stipulates that a person must take legal action for
an alleged wrong within a specific period of time from the moment it took place. The Limitation Act 1980
sets out these time limits for bringing legal claims in the UK. The purpose of this act is to ensure that
legal disputes are resolved promptly and to prevent stale claims from being brought long after the
relevant events have occurred. In the context of adverse possession of unregistered land, this means
that if the paper owner does not bring a claim against the adverse possessor within the time limit, they
are barred from doing so, and the adverse possessor acquires a better title to the land. However, adverse
possession does not actually give a title to the adverse possessor, but rather the person in actual
possession has the best claim to the land. The idea of limitation of actions does not apply to registered
land governed by the LRA 2002, where it has been replaced by a statutory mechanism that protects the
registered proprietor in most situations.

The limitation period for unregistered land:

The limitation period for adverse possession of unregistered land is 12 years from the start of adverse
possession. However, there are exceptions, such as if the paper owner is a sole charitable corporation or
the Crown. If the land is owned by someone for life with a remainder in fee simple to another person,
adverse possession of 12 years or more against the life tenant will extinguish their interest and a further
six years will be necessary on the death of the life tenant. This ruling has had a significant impact on the
drafting of commercial contracts in Hong Kong and has been cited in subsequent legal cases. The
Limitation Act 1980 sets out time limits for bringing legal claims to ensure that legal disputes are
resolved in a timely manner and prevent stale claims from being brought long after the relevant events
have occurred.

The case of Chung Ping Kwan v Lam Island Development Co established the principle that penalty clauses
are unenforceable and that contractual damages must be a genuine pre-estimate of the loss suffered as
a result of a breach of contract. The period of limitation begins running against the relevant paper owner
of an unregistered title from the first moment of adverse possession. If the alleged adverse possessor
has never been in adverse possession, then time cannot start against the owner and the owner cannot
lose title. If the alleged adverse possessor has completed the relevant period of adverse possession, but
then goes out of possession before the first registration, they have no rights against the first registered
proprietor. In the case of Hounslow v Minchinton, tenants have the right to carry out repairs themselves
and deduct the cost from rent if the landlord fails to do so.

Stopping the clock of limitation for unregistered land:

Adverse possession is the act of occupying unregistered land without the owner's permission. The
owner has a limited period of time, usually 12 years, to take legal action and reclaim the land. To pause
this time limit, a paper owner can take action for possession or seek a declaration of title before the
limitation period expires. Additionally, an adverse possessor cannot be successful if they have
recognized the paper owner's title before the expiration of the limitation period, which can be
demonstrated by paying rent or acknowledging title in writing. Ofulue v Bossert (2009) established that
a statement in court pleadings can be considered an acknowledgment of title for the purpose of Section
29 of the Limitation Act 1980.
However, a written acknowledgment only operates at the time it is given and does not constitute a
continuing acknowledgment. Colchester Borough Council v Smith (1992) established that oral tenancy
agreements are legally binding and enforceable. According to Sections 29 and 30 of the Limitation Act
1980, an adverse possessor cannot succeed if they have acknowledged the paper owner's title before
the expiry of the limitation period. Ofulue v Bossert (2009) established that a statement in court
pleadings can be considered as acknowledgment of title for the purpose of section 29. In some cases,
the paper owner may be able to retake physical possession of the land before the expiration of the
limitation period, but this self-help method is not always successful and may be subject to criminal law.

In certain situations, the limitation clock can be stopped by the paper owner's permission, even if it was
not requested or desired by the adverse possessor. However, an unacknowledged permission,
unilaterally given by the paper owner, may also stop the clock if it suggests that the adverse possessor
no longer intends to possess the land.

The effect of a successful claim of adverse possession in unregistered land:

This part of the document discusses the implications of a proven claim of adverse possession on land
without a registered title. This applies when the evidence supports the claim of adverse possession and
the time limit has elapsed. In such cases, the effects of a successful claim differ depending on the
parties' property interests. The impact on tenants has been a topic of interest in recent times.

Effect on the paper owner:

The Limitation Act 1980 states that once the limitation period has expired for unregistered land, the
paper owner's right to sue and title are extinguished. This principle was established in the legal case of
Nicholson v England in 1926. However, the Court of Appeal's decision in Colchester BC v Smith (1992)
suggests that a written acknowledgment of the paper owner's title by the adverse possessor after the
limitation period has ended can prevent the adverse possessor from relying on adverse possession when
faced with an action for possession by the paper owner. This decision is based on the principle of
estoppel, where the adverse possessor is estopped from denying the paper owner's title by the written
acknowledgment. The court does not offer a convincing reason why the Limitation Act 1980 should be
ignored in this way or why the paper owner deserves to benefit from

Effect on the adverse possessor: freeholds:

The traditional view is that when someone successfully claims adverse possession of unregistered land,
they do not become the legal owner. However, they gain something of value as they are able to deal
with the land as if they own it. In practice, the adverse possessor does not acquire the paper owner's
title, but can find a buyer and transfer the land by deed to that purchaser, who can then apply for first
registration of title. The LRA 2002 was introduced to simplify and modernize land registration and
provide greater certainty and security in land ownership. Adverse possessors of unregistered land can
apply for first registration of title, but must provide evidence to convince the Land Registry. After first
registration, all subsequent dealings with the land will be governed by the LRA 2002.

Effect on the adverse possessor: leaseholds:

The doctrine of adverse possession in leaseholds has unusual consequences, as a successful 12 years'
possession against a tenant extinguishes only the tenant's estate, not the landlord's. The adverse
possessor is not considered the tenant or an assignee of the tenant and cannot be liable for any
leasehold covenants except those enforceable as restrictive covenants. The problem arises when the
tenant uses their relationship with the landlord to challenge the adverse possessor. In unregistered land,
Fairweather v St Marylebone Property Co Ltd (1963) provides a clear answer that the lease is terminated
and the adverse possessor has no right to stay on the land. In registered land, the tenant's interest in the
lease may pass to the adverse possessor, but this rule is unlikely to be overruled.

The substantive nature of the adverse possessor’s rights prior to completing the period of limitation in
unregistered land:

An adverse possessor has a valuable property right in unregistered land, even while in the process of
acquiring title. They can transfer their rights to another person, and the combined period of possession
can be used to defeat the paper owner.

Adverse Possession under the Land Registration Act 1925:

Adverse possession completed before the LRA 2002 is subject to the same limitation period as
unregistered land. A person who has completed 12 years of possession before 13 October 2003 is
entitled to be registered as proprietor of the land. This entitlement is enforceable against a purchaser if
the adverse possessor is in discoverable actual occupation of the land. The case of Crosdil v Hodder
(2011) highlights the importance of meeting the legal criteria for adverse possession. The Court of
Appeal held that an offer of amends made by a newspaper publisher in a libel case can be considered
"serious" if it meets the requirements of Section 2(2) of the Defamation Act 1996. It also clarified that if
the person claiming adverse possession had not completed 12 years of adverse possession before the
2002 Act came into force, their situation will be governed by the new rules.

Adverse Possession under the Land Registration Act 2002:

Most of the legal cases related to adverse possession deal with either unregistered land or claims to
adverse possession under the LRA 1925, although there are some cases now being decided under the
LRA 2002. However, the rules for how adverse possession is established apply to all registered land as
well as unregistered land. The system for regulating the effects of adverse possession on registered land
has been substantially modified from the scheme found in the LRA 1925 and in respect of unregistered
land. This scheme, which is now fully in force, will govern the majority of claims of adverse possession in
the future. Its premise is that a title guaranteed by the state and easily provable from a title register
should not be lost because of the possession of a stranger, regardless of how long that possession has
lasted. This follows from the concept of "title by registration." It's important to note that even under the
LRA 2002, the old limitation period applies in respect of a claim by one squatter to have ousted another
squatter as the ousted squatter has no registered title.

The basic principle:

The LRA 2002 has abolished the period of limitation against a registered title, which means that a
registered proprietor cannot lose title merely because someone else has adversely possessed the land
for a fixed period of time. Although the Act acknowledges that claims of adverse possession are
common, it establishes a procedure whereby the adverse possessor can apply to be registered as
proprietor of the title, triggering the statutory scheme set out in Schedule 6 of the Act. This puts the
onus on the adverse possessor to establish title to registered land, rather than relying on the paper
owner's inaction. As a result, the registered proprietor does not have to remain vigilant to protect the
title, but can instead rely on the system to alert them to any adverse claims, which they can then
respond to and safeguard their interest.

The statutory scheme:

The Land Registration Act 2002 sets out the procedure for an adverse possessor to apply for registration
of title by adverse possession. The application must include a statement of truth, evidence of the
possession relied upon, and a statement of the adverse possessor's belief that the land is registered. If
no objection is made within the specified time period, the adverse possessor will be registered as the
new proprietor. If the registrar takes the view that the application discloses an arguable case for
registration, a written notice will be sent to the current registered proprietor and certain other
interested parties. Failure to respond will mean the adverse possessor is registered with title.

The most important details in this text are the three options available to a registered proprietor when
faced with an application for adverse possession. The registered proprietor can consent to the
application, raise an objection to the application, or serve a counter-notice. The third option is to serve a
counter-notice, which requires the registrar to deal with the application under Schedule 6, paragraph 5
of the Land Registration Act 2002. Paragraph 9 of Schedule 6 of the Land Registration Act 2002 provides
rules for determining when an interest in land is overriding and enforceable against the registered
proprietor, including that the interest must be in actual occupation of the land and must be of a type
that would have been obvious on a reasonably careful inspection of the land. This new scheme will
significantly impact the frequency and success of adverse possession claims, as a registered proprietor
will receive notice of any application made by an adverse possessor to become the new proprietor. If
the adverse possessor does not apply for registration or is evicted, the registered proprietor is safe.

The exceptions:

The LRA 2002 protects registered proprietors, and most conflicts are likely to arise over the exceptions
outlined in Schedule 6. The adverse possessor can only have a realistic chance of being registered as
proprietor if they can establish adverse possession based on the substantive law and rely on one of the
exceptions. In exceptional cases, the adverse possessor can be registered as proprietor, such as if it
would be unjust for the current proprietor to disposess the adverse possessor due to an estoppel or if
the applicant reasonably believed the disputed land to be theirs for at least ten years of the adverse
possession.

Exception 1: estoppel, unconscionability and ‘ought to be registered’:

The first requirement of Schedule 6 refers to the principles of proprietary estoppel, which requires the
applicant to demonstrate both adverse possession and that they have relied on some assurance by the
registered proprietor. Estoppel may be based on either express or implied assurance, and may support a
failed contract. It is unclear why an adverse possessor would choose to rely on estoppel instead of
claiming adverse possession, as estoppel alone does not guarantee title. If registration is refused, the
adverse possessor can pursue an independent claim in estoppel for the same or a different remedy.
Exception 2: the squatter is for some other reason entitled to be registered as the proprietor:

Adverse possession is a broad condition that can be exploited by adverse possessors who are concerned
that the registered proprietor may take advantage of the two-year period of grace. Deputy Adjudicator
McAllister concluded that the exception should be narrowly interpreted and not used to support
adverse possessors on a broad view of entitlement. Evidence suggests that the 'other reason' exception
can be used where an adverse possessor has established a complete claim before 13 October 2003 and
appears outside the scheme of the LRA 2002, but has failed to apply properly for their entitlement to be
registered.

The boundary exception:

The third exception acknowledges the fact that boundary lines between neighboring properties can be
uncertain or may have changed over time without any formal transfer of land. This exception allows for
adverse possession to be used as a practical solution to boundary disputes. The case of Zarb v Parry
(2011) involved adverse possession, with the court ruling in favor of the defendant as the claimant's use
of the land was not sufficient to amount to adverse possession. The Land Registry Practice Guide No. 4,
2020 provides guidance on the registration of land and property in England and Wales, and states that
this exception may be useful in situations where physical features suggest one boundary location, but
the title plan suggests another. This exception is likely to be the most commonly used of the three
exceptions, and is the only one where a claimant can acquire title simply by adversely possessing the
land without relying on additional property law doctrines.

One of the four conditions for the "boundary exception" to adverse possession is whether the applicant
believed the land to be theirs for at least ten years of the period of adverse possession, and that belief
must be reasonable. This is to prevent deliberate theft of land. Two cases, Zarb v Parry and IAM Group v
Chowdrey, illustrate this condition. In Zarb v Parry, the claimant was unsuccessful in acquiring title to a
strip of land by adverse possession because the court ruled that his use of the land did not amount to
adverse possession. However, in the Court of Appeal, it was held that the applicant's belief in their
ownership was reasonable, and therefore they established title under the boundary exception. In IAM
Group v Chowdrey, the court held that it was the claimant's belief that had to be reasonable, not that of
his solicitors, and being told that the land was not his did not make his belief unreasonable. The other
three conditions for the boundary exception are straightforward and only require proof that the land of
the applicant is adjacent to that to which the claim relates, the exact boundary has not been
determined, and the land to which the application relates has been registered for more than one year.

As mentioned in the case of Zarb, there is uncertainty surrounding the scope of the 'reasonable belief'
condition for adverse possession. The tribunal judge in Crosdil v Hodder suggested that it might require
a reasonable belief for any ten-year period before the application is made, while Arden LJ in IAM Group
v Chowdrey suggested that the belief must persist for ten years up to the moment of the application.
The boundary exception is likely to be the most relied upon in practice, but the uncertainty generated by
these unresolved issues is of concern. The case of Zarb v Parry highlights the importance of the
boundary exception in adverse possession, and the requirement for a claimant to reasonably believe
that the land belongs to them. The claim may be defeated if the adverse possessor becomes aware
before applying for registration of the registered owner's objection to their assertion of title, making
their belief unreasonable. In such circumstances, the adverse possessor may be best advised to make an
application as soon as possible. The Law Commission's 2018 Report generally favors the Zarb approach
and proposes that a claimant must apply within 12 months of when their reasonable belief that the land
belonged to them came to an end. It is unclear whether this proposal will become law. The case of Crew
v London & Continental Holdings establishes that employers have a duty of care to provide a safe
system of work to employees, and failure to do so can result in liability for injuries.

The three exceptions to adverse possession laws are designed to ensure that the person who has been
in adverse possession for ten years and "deserves" to be the owner is registered as such. These
exceptions are meant to be rare and normally the registered owner will either object or use the two-
year grace period. However, there is a possibility that sympathetic interpretations of the exceptions may
allow adverse possession of registered land in more circumstances than intended. While the LRA 2002
may signal the end of feudal elements in English land law, it remains to be seen whether it will
encourage landowners to make the most of their land. Prior to the LRA 2002, landowners had to be
attentive to their land or risk losing it to adverse possession. Two court cases, Lambeth LBC v Ellis and
Purbrick v Hackney LB, highlight the importance of landlords fulfilling their obligations to tenants and
the potential liability for personal injury caused by disrepair in rented properties. With the LRA 2002, a
landowner with registered title can wait for the registrar to inform them of another's claim and then
evict within two years, without being attentive to their land.

Effect of registration of the adverse possessor under the Land Registration Act 2002:

If an adverse possessor successfully registers as proprietor, they will take the land subject to any
interests affecting the estate, except for any registered charge. However, if the registration is the result
of one of the three exceptions established by Schedule 6, paragraph 9 of the LRA 2002, the adverse
possessor will take the land subject to any registered charge. This is because the registered charge will
have been served with notice and could have requested that the application be dealt with under the
two-year rule, but if they fail to take action, they cannot object to the loss of their charge. If the adverse
possessor is registered due to one of the exceptions, the mortgagee cannot challenge the registration
and the adverse possessor will take the title subject to all incumbrances, including the mortgage.