THE INSTITUTE OF LEGAL STUDIES

PROPERTY LAW

ADVERSE POSSESSION

GENERAL STRUCTURE & SAMPLE ESSAY

If there is an essay question on adverse possession, it’ll be an evaluation of the law, probably an
assertion that it has become difficult to claim adverse possession to registered land today. You’d start
with the idea behind the doctrine, some justifications for the existence of the doctrine. You may
mention Manchester CC v Pinnock where, reiterating the decision of Pye v UK, the courts have again
said that the doctrine does not contravene with Art 8 of the ECHR. You can then discuss the law that
was before 2002. You must give a brief account of what the law was only then will you be able to
highlight how radically different it is today.

So, you start with some discussion about factual possession, intention and adversity, some about the
clock stopping. Remember this is not a note you are writing. You can compress the information and
have to give the gist of it in this kind of a question and not go case by case. Then you move on to the
procedure that applied under s 75 and the Limitation Act 1980 etc.

Then you introduce the LRA and how it has reformed the law and eliminated the idea of limitations and
finally endorsed the idea that registration is true ownership and title is secure and insured once on the
register. The idea of relativity of title and the medieval/feudal concept that possession gives ownership
is no longer applicable in light of the idea of registration. You explain the process under schedule 6
and the requirement that the squatter be in at least 10 years of possession, up to the date of bringing
application to the registrar. Then you must highlight that any person who is not in possession cannot
bring a claim anymore. Then any person who vacated property at any time before completion of 10
years, the clock will stop and start fresh if he were to come back. The fact that there is no concept of
aggregate time must be emphasized here. Then highlight the process of application and then how only
in the most limited of situations can title pass to the squatter:

1) Where the owner consents to the application,

2) Where the owner doesn’t respond to the application within 65 days,
3) Where the owner rejects the application (successfully) but then fails to take physical possession of
land for a further 2 years,
4) Where the owner rejects the application but the squatter can come within the exceptions of para 5.

Other than these scenarios, it has become impossible to claim title by adverse possession. You may
also mention the criminal aspect of a squatters actions.

Another angle for an essay question is where the examiner gives a statement that the new system is
flawed and that the old laws were better. Of course that statement is inaccurate. So, this essay you would
start in the same way, as the previous one. Give some background and the reasons why such a doctrine
exists in English Law (I have outlined many reasons in the slides). Then move on to how adverse
possession arose under the old law, the common law rules of possession and adversity. Then the
collection of prescribed time of 12 years and especially focus on the idea of congregate possession
when one squatter leaves and another comes. The idea of s 75 and Limitation Act etc as I have
structured above.

Then you talk about the new law, how there is no limitation etc, and you will describe the process: how
the common law pertaining to possession and adversity is the same (you will not repeat it) BUT the
collection of time has been modified so that there is no aggregate possession anymore which is a
welcome change (see discussion above) and then explain the procedure under schedule 6, the
challenges it has created for the squatter (as discussed above) and while doing that you will highlight
that the main source of criticism is the fact that in some situations now, adverse possession can be
achieved in 10 rather than 12 years:

1) Where the owner consents to the application by the squatter,

2) Where the owner doesn’t respond to the application within 65 days,
3) Where the owner rejects the application (successfully) but then fails to take physical possession of
land for a further 2 years,
4) Where the owner rejects the application but the squatter can come within the exceptions of para 5.

You should argue that these are situations where either the owner really doesn’t care about his property
(where he consents or doesn’t respond or after rejecting does not remove the squatter from land, I
mean who would do that “insert eye roll”) or situations where the squatter is actually otherwise entitled
and the claim has nothing to do with adverse possession (the exception of para 5(2) and para 5(3)).
The only situation where adverse possession is being granted in its true sense is cases of boundary
dispute, but that also has strict requirements and the squatter cannot simply succeed without satisfying
each requirement.

You can conclude by highlighting how some academics assert that it should have been removed
altogether. However, there is some utility in the doctrine being retained despite the LRA 2002. The
reasons why the doctrine exists have been given in my slides on adverse possession. Please write them
in your own words if you choose to do so.

In your conclusion to either essay, another possibility is that you talk about the Law comm report no
380: Updating the LRA. Presented before parliament in July 2018, received with approval. It is not a
reformulation of the law at all. But rather, suggests improvement to specific aspects of operation. In its
470 plus pages, the report mainly focuses on recommendations that, amongst other problems, will
iron out some of the ambiguities of the law on Adverse possession particularly with reference to the
application process. Whereas the report that led to the LRA 2002 was adopted into law rather swiftly,
it remains to be seen what the fate of the report will be given that the govt was neck deep in the Brexit
negotiations and is now dealing with the repercussions of a deadly pandemic.
PLEASE NOTE: THE FOLLOWING MATERIAL HAS BEEN TAKEN FROM TEXTBOOKS,
PUBLISHED WORKS AND EXAMINER REPORTS. PLEASE DO NOT COPY ANY OF THIS
WORK AS YOU WOULD IMMEDIATELY BE FLAGGED FOR PLAGIARISM.

Q. ‘The Land Registration Act 2002 has significantly diluted the impact of the
law on adverse possession, at least in relation to registered land. This shift in the
law is entirely welcome.’
Discuss

Adverse possession embodies one of the most fundamental principles of English land
law: that a person may only own an estate in the land, not the land itself. However, if an
estate owner sleeps on their rights, a court will not enforce those rights against the
person actually in possession of the land. Adverse possession involves three basic issues:
first, after what period of time does a paper owner of land lose their right to sue to
recover possession of it for unregistered land? In registered land the question becomes:
how long must a possessor be in possession before he can make an application to be
registered? Second, when does that period start to run and how can it be brought to an
end? Third, what is the effect of expiry of this period, both for the paper owner and the
adverse possessor? What must be determined here is the extent to which each of these
issues can be defined with precision.

As to the period of limitation, this is the period after which no action can be brought to
recover land. In most cases concerning unregistered land, this will be 12 years from the
moment of adverse possession by the squatter (s 15 of the Limitation Act (LA) 1980).
There are certain special cases in which the period is different, as where Crown lands
are involved (30 years: Sched 1 to the LA 1980). For registered land, the rules are no
longer based on the concept of limitation, but an application may be made to the land
registry after ten years’ adverse possession.

Second, at what moment in time does the actual occupation of land by another person
become adverse to the paper owner so as to start the relevant period running? The rules
concerning this vital question are not to be found in statute: they are entirely judge-made
and thus flexible, open-ended and subject to a variety of applications as the
circumstances of each case permits. Following a number of cases that illustrated the
uncertainties in the law, the House of Lords in Pye v Graham (2003) sought to codify,
and clarify, the principles of adverse possession and, together with the earlier decision
of the Court of Appeal in Buckinghamshire CC v Moran (1990), may be regarded as
embodying the definitive statement of the modern law. In Moran, there was a successful
claim of adverse possession by a squatter against the council and the court enunciated
the following principles.

First, the adverse possessor should have an intention to possess the land to the exclusion
of the whole world, including the paper owner (Pye v Graham). So, a belief that
possession might become authorised by the paper owner can mean that the adverse
possessor fails to demonstrate a sufficient immediate intention to possess to the
exclusion of all (Pye). Second, the squatter must take adverse possession of the land as
a matter of fact, either in consequence of the dispossession of the paper owner or
following discontinuance by him. Dispossession occurs where the paper owner is
effectively driven out by another (Rains v Buxton (1880)) and discontinuance where the
paper owner abandons the land (Smith v Lloyd (1854)). In either case, the loss of
possession by the paper owner must be followed by actual adverse possession by the
squatter. This will be a question of fact in each case, although it is clear that the degree
of physical possession required will vary with the type of land involved. It may well be
easier to establish adverse possession over land that is not susceptible to developed use
(Red House Farms v Catchpole (1977)) and there are some indications that adverse
possession is easier to prove in cases of discontinuance as opposed to cases of
dispossession (Red House Farms). Yet, it is a question of fact in each case (Powell v
McFarlane (1970)) and there is no requirement that the adverse possession must
actually inconvenience the paper owner (Treloar v Nute (1976)). But, possession will
not be taken from acts equivocal in nature or temporary in purpose, such as growing
vegetables or clearing land so as to enable one’s children to play (Wallis’s Cayton
Holiday Camp v Shell-Mex and BP (1975); Techbild v Chamberlain (1969)), but motive
is irrelevant if the acts of the squatter effectively exclude the paper owner (Minchinton;
Lambeth v Blackburn). Of course, the possession must be adverse to the paper owner:
it must not be with their consent or permission as that amounts to a licence to occupy
and will not start the period of limitation.

Assuming, then, that adverse possession is running against the paper owner, the paper
owner may then seek to ‘stop the clock’ by reasserting their own possession. An action
to recover possession of the land necessarily will stop the adverse possession. The same
is true of other acts that show an intention on the part of the adverse possessor to
acknowledge the paper owner’s title, as where the squatter pays rent or by written
acknowledgement of title before time has expired (ss 29 and 30 of the LA). However,
apart from actually initiating proceedings, it is not clear what other actions by the paper
owner will be sufficient to ‘stop the clock’. In Moran, a letter asserting title was not
sufficient, although a letter evincing a definite intention to sue may well be (Shell-Mex).
Recent guidance has been provided by the Court of Appeal in Zarb v Parry (2012). Here
the registered owner of the land had attempted to end the adverse possessor’s
possession by starting to put up a fence. They did not finish the construction of the
fence, however, and so the court concluded that although they had started the process
that would have brought the adverse possessor’s possession to an end, they had not
completed it.

Once the relevant period has expired, in unregistered land, both the paper owner’s right
to sue and their title are extinguished by operation of statute (s 17 of the LA). After this
date, the conventional wisdom is that no acknowledgement, written or otherwise, and
no payment, can revive the paper owner’s title (Nicholson v England (1962)), unless the
parties can be taken to have settled their ongoing dispute where it would be inequitable
to challenge the solution (Colchester Borough Council v Smith (1992)). In registered
land, expiry of the ten- year period triggers the ability of the squatter to apply under
Sched 6 of the Land Registration Act 2002, although this does not mean that they will
actually achieve title.

The law of adverse possession also has been clarified in two other ways, one of which has
been alluded to already. First, in respect of human rights, in JA Pye (Oxford) Ltd v
United Kingdom (2007), the Grand Chamber of the European Court of Human Rights
held that the Land Registration Act 1925 was human rights-compliant in that it might
deny title to a paper owner, and the reasoning applies also to adverse possession of
unregistered land and under the Land Registration Act 2002. Confirmation in the
courts of England and Wales that principles of adverse possession are, in general, not at
odds with human rights law can be seen in Ofulue v Bossert (2008).

Second, it is well known that the Land Registration Act 2002 has effected radical
changes in the way modern law approaches claims to title by adverse possession. Thus,
under Sched 6 to the 2002 Act, a registered owner can no longer lose title simply by
reason of the passage of time.

The squatter can apply to the Land Registry to be registered as proprietor of the estate,
but notice of this application is then given to the registered proprietor who, save for
exceptional circumstances, has two further years to evict the squatter. The exceptional
cases – which may be summarised as estoppel, some other right to the land or a
reasonable mistake as to boundaries – will enable the squatter to acquire title, but clearly
these are of limited effect (Baxter v Mannion).
Although in recent years the substantive law of adverse possession has taken on more
clarity and certainty, mainly due to the clear exposition in Moran and the application in
cases like Minchinton and Pye, the chances of a successful claim being made are falling
away because of the impact of the Land Registration Act 2002. After all, the vast
majority of land is now registered. In addition, the introduction of a new criminal offence
of ‘residen- tial squatting’ indicates that policy has turned against squatters. As things
stand, the commission of this new criminal offence (s144 of the Legal Aid, Sentencing
and Punishment of Offenders Act 2012) does not mean that a criminal squatter cannot
claim title (illegality does not prevent the claim – Best v Chief Land Registrar (2014)),
but the trend in the law is in favour of formal ownership and away from possessory title.