UKT Revision 2023

ADVERSE POSSESSION
Q6, 2021- Main Paper

Andy is the registered proprietor of Greenacre, a vast estate comprising three houses. Andy has
recently died, and has named his niece, Carrie, as the beneficiary of Greenacre. Upon visiting
Greenacre, Carrie discovers that Edmund is living in House 1. Edmund tells Carrie that he
purchased the house from the Andy in 2009. He shows her a copy of the contract for sale and a
receipt for the purchase price.

Carrie also discovers Thomas locking the door to House 2. When Carrie challenges him, Thomas
says that he has acquired rights in House 2, and explains that Andy had given him a lease of House
2 in 1997. Thomas had paid rent for only the first six months, but has lived in House 2 ever since.
Carrie finds a copy of a letter written by Andy to Thomas asking Thomas to pay the rent or vacate
House 2. Thomas received the letter, but ignored it.

Carrie also finds that the boundary fence between House 3 and the neighbouring property is not
where it is as indicated in the land plan drawing that Andy had. Frederick, the owner of this
neighbouring property, tells Carrie that he replaced the fence in 2011 when it got destroyed in a
storm. Frederick did not check the land plan drawing when he put up the new fence, and assumed
that he has put it up at the correct place. As a result, two feet of the garden of of House 3 is on the
wrong side of the fence.

Advise Carrie as to whether Edmund, Thomas or Frederick might successfully apply to be

registered as proprietor of the parts of Greenacre they occupy.

Answer Outline

1. Requirements of adverse possession – Powell v Mc Farlane: factual possession and intent to

possess

2. Definition of factual possession

• Powell v Mc Farlane: appropriate degree of physical control ; what acts amount to
sufficient factual possession will depend on the circumstances
• Pye v Graham: ordinary possession by the squatter without consent of the owner

 Edmund: living in the house constitutes sufficient factual possession

 Thomas: storage and locking establishes factual possession – Purbrick v Hackney LBC
 Frederick: enclosing the land with a fence clearly establishes possession

3. Definition of intent to possess

• Powell v Mc Farlane: intent to exclude the world at large, including the paper owner,
so far as reasonably practicable
• Pye v Graham: does not include an intent to own
 UKT Revision 2023
 Thomas and Frederick’s acts of locking and enclosure clearly demonstrates an intent to
secure the premises
 Surely Edmund would have also secured the house from entry by intruders

4. Determining whether the provisions of LRA 1925 or LRA 2002 will apply
• 12 years of factual possession for Edmund, Thomas and Frederick ending after 13
October 2003
• LRA 2002 applies

5. What Edmund, Thomas and Frederick must do in order to be successfully registered as the
new proprietors:

• must comply with the procedure in Sch 6 LRA 2002

• Para 1: apply to be registered as properitors after being in possession for at least 10
years
• Para 2: the Registrar must notify Carrie of the applications
• Land Registry Practice Guide: Carrie has 65 business days to respond to the notice

Options open to Carrie: do nothing, consent, oppose (object & serve counter-notice): - If the
council does nothing or consent: their applications are successful
- If the Carrie opposes : their applications are rejected, unless the exceptions under para 5
applies:

Exceptions:
• Para 5(2): it is unconscionable because of an equity by estoppel
• Para 5(3): the applicant is entitled to be registered for some other reason 
Explanatory Notes: example – the squatter paid the full purchase price, but
title was never formally conveyed to him
- Edmund can rely on this exception
- Edmund’s application will be successful

Para 5(4): relates to a boundary dispute where the squatter is under a reasonable belief that the
land belonged to him
- Frederick’s claim relates to a boundary dispute
- However, he replaced the fence where he assumed it should be, without seeking
professional advise
- His belief that he placed the fence at the correct place may be unreasonable
- Frederick’s application may be rejected

Para 6(1): where a person’s application under Para 1 is rejected, he may make a further application if
he remained in factual possession from the date of the application until the end of 2 years from the
date of the rejection

Para 7: the second application will be successful, unless action has been brought within para 6(2)(a)
(b) or (c):
- Exception: Para 6(2)(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
 UKT Revision 2023
the last two years, or (c)he has been evicted from the land pursuant to a judgment for
possession

 Carrie is advised to take steps to evict, Edmund, Thomas and Frederick immediately, or at
least within 2 years of their applications

Q5, 2021 – Re-Sit paper

Robert is the registered proprietor of Rose Cottage. Rose Cottage is situated next door to Lily
Cottage, a property that has never been occupied ever since Robert moved into Rose Cottage.
Robert does not know who owns Lily Cottage, but he had for some time been interested in
purchasing it. In 2010, he broke the lock on the front door of Lily Cottage to store his camping
gear. In 2011, he decided to contact the Land Registry to find out who owns that cottage. He
discovers that Nigel is the registered proprietor of Lily Cottage. Being a keen gardener, Robert used
the garden of Lily Cottage to grow organic vegetables and some wild flowers(Buckinghamshire
case). Robert also used his own money to renovate Lily Cottage to make it suitable for occupation
by his guests. Robert has frequently put up his weekend guests in Lily Cottage. Robert’s efforts
have increased the value of Lily Cottage.

In 2017, Nigel visits Lily Cottage and sees Robert tending to the vegetable patch. He tells Robert
that he does not mind Robert using the cottage for now. Robert proceeded to ask Nigel if he would
like to sell Lily Cottage. Nigel explains that he has a sentimental attachment to Lily Cottage, and
does not want to sell it.

Robert now seeks your advice as to whether he has acquired any rights in Lily Cottage.

Answer pointers:

1. Requirements of adverse possession – Powell v Mc Farlane: factual possession and intent to

possess
2. Definition of factual possession
- Powell v Mc Farlane
- Purbrick v Hackney LBC
- The clock begins in 1990

3. Vegetable patch and wild flowers

- Dyer v Terry, Ellett-Brown v Tallishire

4. Interruption of / stopping the clock

- Issue: Robert asking Nigel about the sale of Lily Cottage
- s29(2) Limitation Act 1980: If the person in possession of the land acknowledges the title of
the person to whom the right of action has accrued, the right shall be treated as having
accrued on and not before the date of the acknowledgment
- s30(1) Limitation Act 1980: To be effective for the purposes of section 29 of this Act, an
acknowledgment must be in writing and signed by the person making it
- Lambeth London Borough Council v Bigden (2000): an offer to rent the property amounts
to an implied acknowledgment of title
 UKT Revision 2023
- Lambeth LBC v Blackburn -The intention to possess can still exist even if the claimant would
have been prepared to accept that permission to use the land had it been offered
- J Alston & Sons Ltd v BOCM Pauls Ltd : Intention to possess would also exist even if the
squatter would have prepared to quit possession if required

5. Definition of intent to possess

- Powell v Mc Farlane: intent to exclude the world at large, including the paper owner, so far
as reasonably practicable
- Pye v Graham: does not include an intent to own

6. Determining whether the provisions of LRA 1925 or LRA 2002 will apply
- Factual possession begins in 1992 or later - 12 years of factual possession ends after 13
October 2003
- LRA 2002 applies

7. What Robert must do in order to be successfully registered as the new proprietor:

Discuss procedure in Sch 6 LRA 2002
Para 1: apply to be registered as proprietors after being in possession for at least 10 years Para
2: the Registrar must notify Nigel of the applications

- Land Registry Practice Guide: Nigel has 65 business days to respond to the notice
- Options open to Nigel: do nothing, consent, oppose (object & serve counter-notice)
- Option 1 and 2: Robert’s application is successful - Option 3: Robert’s applications is
rejected - Exceptions:
- Para 5(2): it is unconscionable because of an equity by estoppel
- Para 5(3): the applicant is entitled to be registered for some other reason
- Explanatory Notes: example – the squatter paid the full purchase price, but title was never
formally conveyed to him
- Para 5(4): relates to a boundary dispute where the squatter is under a reasonable belief
that the land belonged to him

 Discuss the possibility of Schedule 6 paragraph 5(2) applying

Para 6(1): where a person’s application under Para 1 is rejected, he may make
- a further application if he remained in factual possession from the date of the application
until the end of 2 years from the date of the rejection

Para 7: the second application will be successful unless the exceptions below applies:
- Exception: Para 6(2)(a), (b), (c) – o If he is a defendant in proceedings which involve
asserting a right to possession of the land, or
o judgment for possession of the land has been given against him in the last two
years,
o or he has been evicted from the land pursuant to a judgment for possession

Robert is advised that Nigel can take steps to evict him immediately or at least within 2 years of his
application. However if Nigel remained did nothing then Robert may reapply at the end of a further
2 years and be registered as the new owner of the land
UKT Revision 2023