Question 7 Zone A 2021 (L6)

Adverse Possession problem

Charlotte bought the registered title to a small cottage in May 2004. The house used to be the
gatekeeper’s lodge for a country property, Branwell House. As the cottage did not have its own
garden, Charlotte agreed with her neighbour, Anne, to make use of a neglected secret garden
at the rear of Branwell House. Anne is the registered proprietor of Branwell House. Charlotte
used the secret garden to grow vegetables. When Charlotte’s licence of the secret garden
expired in December 2011, Anne was not prepared to renew it because she had plans to replace
the garden with a maze. Shortly afterwards Anne, who was not in the best of health, boarded
up Branwell House and moved to live in her cottage in Yorkshire. In Anne’s absence, Charlotte
continued to use the secret garden to grow vegetables. To deter the birds, she installed a sonic
device to scare them and erected a Perspex roof to protect the soft fruit.
In March 2021 Anne sold Branwell House to Emily. A few weeks after she moved in, Emily
discovered that Charlotte was using the secret garden to grow vegetables. Emily has written to
Charlotte insisting she vacate the garden immediately. A few days later, Charlotte received a
letter from the legal department of Wuthering Council. The letter instructed Charlotte to
remove the picket fence at the front of her cottage so that Wuthering Council can make use of
the land inside the fence to build a pavement. It claimed that a previous owner of the cottage
must have wrongly enclosed the strip of land, which Wuthering Council’s plans show rightly
belongs to it.
Advise Charlotte.

Charlotte is advised that she should initiate a claim for adverse possession for the secret garden
and the land inside her fence in front of her cottage. We will deal with both in turn below.
Secret Garden
• The basic requirements for the establishment of a successful claim for Adverse
Possession will be that the claimant must prove the fact of their possession and that
they did so with the necessary intention to possess.
• The fact of Possession - The locus classicus in this area is found in the judgment of
SladeJ in Powell v McFarlane (1979) where he held that the test for determining
whether the fact of possession has been proven is whether “the alleged possessor has
been dealing with the land in question as an occupying owner might have been expected
to deal with it and no one else has done so”.
• Browne-Wilkinson LJ held in Pye v Graham sought to further simplify this notion and
stated that no benefit comes from over conceptualising the notion of Adverse
Possession. The simple question to be asked is whether the claimant is in possession of
the land without the permission of the landowner.
• We see that Charlotte used the secret garden to grow vegetables. The issue here would
be if this will be considered as equivocal in nature or temporary in purpose. In Techbild
v Chamberlain the act of the claimant in clearing the land for his children to play and
tethering his ponies there was held to not be sufficient. Perhaps one or two rows of
vegetables in a small garden may not satisfy the requirements of possessing the land on
 its own, however, rows and rows over a large piece of land might do so. We are not
told how big the secret garden was or how much vegetables were grown by Charlotte.
• But there are other factors that can be considered in Charlotte’s case. The taking of
possession of the claimed land can reside in a series of events. We are told that to deter
the birds, she installed a sonic device to scare them and erected a Perspex roof to protect
the soft fruit. These things put together with the assumption that the secret garden was
fenced and locked and Charlotte has the key to access it, it is submitted that this does
satisfy the requirements of proving that Charlotte has indeed taken possession of the
secret garden.
• Even if the garden was not fenced up and locked, Charlotte should argue the case of
Thorpe v Frank (2019) where the mere laying of slabs of cement on the ground and
parking the claimant’s car was held to be sufficient for a claim of AP. It would seem
that the courts are acknowledging that the lack of fencing or enclosing over an area of
land specifically will not prevent a claim for adverse possession
• The fact that the secret garden was neglected prior to Charlotte making use of it also
does not matter. It is not necessary for the paper owner to be inconvenienced by the
acts of possession. This is seen in the case of Treloar v Nute (1976). As such it doesn’t
matter that Anne was not using the land anyway.
• The fact of Charlotte taking possession of the land is proven
• Intention to possess - Powell v McFarlane recognises that the concept of the adverse
possessor intending to possess the land adversely to the exclusion of all others is
somewhat artificial.
• What is needed is an intention to possess and not necessarily and intention to own –
Williams v Jones (2003). Most of the time the very acts that were used to prove the fact
of possession will also be used to prove that the adverse possessor had an intention to
possess.
• In Mitchell v. Watkinson (2013) a claimant who for various reasons believed he had a
right to the land was still held to be a successful AP. As such, what we look at is merely
whether the claimant had an intention to possess the land and put it to his own use,
whether or not he also knew that some other person had a claim or right to the land.
• It does seem that Charlotte has the intention to put the land to her own use and this is
evidenced by the acts that she did on the land as discussed above. However, there are
several issues that crop up that must be addressed
• Issue:- Charlotte was on the land with permission and would have accepted a continued
permission if it was given to her. She even asked for a continuation of the license when
it expired in December 2011.
• In Lambeth LBC v. Blackburn (2001), Blackburn was able to demonstrate an intention
to possess the land – through clear acts of possession – even though he knew that the
land was another’s and would have accepted a permission (a lease) if one had been
offered.
• In Pye v Graham (2002), Graham had made it clear that he would have accepted a
grazing licence from Pye, but as one was not offered, Graham’s current intention to
possess the land until a licence was offered (and accepted) was enough to secure title
by adverse possession. It is submitted that our facts here are similar to this and as such
Charlotte should not have a problem here.
• Another issue that must be addressed is the reason why Charlotte put up the sonic device
and erected the Perspex roof. These were not done for the purposes of establishing the
possession of the land. They were done to prevent the birds from getting to the
vegetables and to protect the soft fruit.
• The cases of Fruin v Fruin and Basildon v Charge are similar where fences were erected
to keep a senile member of the family from wandering off and to keep the geese from
running out respectively. Here the courts held that there cannot be a successful claim
of adverse possession.
• However in the subsequent case of Hounslow v Minchinton (1997), where the claimant
had erected a fence to allow her to exercise her dogs without them running away, the
courts held that what is important is the effect of the act and not the motive behind it.
If the effect is to prevent people from coming on to the land or it clearly shows
possession then this will be sufficient.
• It is submitted that the purpose behind Charlottes actions will not matter given the effect
of her acts indicates that she has properly taken possession of the land. As such
Charlotte has also established the necessary intention to possess.
• A third issue is that Ann has some future use of the land, to create a maze and Charlotte
knew about this. It is immaterial whether the claimant was aware that the landowner
had an intention to use the land in the future that was consistent with the actual present
use by the claimant – the landowner’s state of mind is irrelevant. There will be no
implied license here to defeat Charlotte’s claim in this situation. This was made very
clear in Buckinghamshire County Council v Moran (1989). It is, in the language of Lord
Browne-Wilkinson, ‘heretical and wrong’.
• Other issues - Emily has written to Charlotte insisting she vacate the garden
immediately. It is clear that a mere letter from the actual owner to the claimant asking
them to quit the land will not be sufficient to stop the clock from running for the adverse
possession claim. Authorities for this include Buckinghamshire County Council v
Moran (1989) and Mount Carmel Investments v Peter Thurlow (1988). The letter will
not have any impact on Charlotte’s claim for AP.
• Having resolved the substantive issues on a claim for AP we now move into the
registration issues.
• The law today is found in s.96 and Schedule 6 of the LRA 2002
• After a minimum of 10 years of successful and uninterrupted adverse possession,
Charlotte is advised that she will be able to apply to become the registered proprietor
of the strip of land.
• Charlotte will only be said to have begun adverse possession on the secret garden after
the expiry of the license that she was granted. This was in December 2011. She has not
 reached the minimum required 10 years (today being May/June 2021-the date of the
paper)
• However, there seems to have been no attempt to evict Charlotte as yet by Emily. The
only way that would have been of any effect would be to initiate legal proceedings to
evict Charlotte. Even if a claim was issued it would not stop time from running until it
is successful – Markfield Investments Ltd v. Evans (2001). As such, we can assume that
she stayed on the land for a further 6 months or so thus making her eligible to apply to
become the registered proprietor under the LRA 2002.
• After making the application, the land office will send a notice to Emily informing her
of the application. Emily then will have 3 choices as to what she can do. It is argued
that in all probability, Emily will choose to make a counter claim for the land. If she
does so, she will have 2 years to evict Charlotte from the land.
• Judging by the letter that Emily has sent it is likely that she will proceed with the
eviction proceeding. If this is done then Charlotte will have no choice but to leave
unless she can argue that she falls within one of the Schedule 6 para 5 situations.
• It is submitted that Charlotte will in all probability not be able to argue any one of the
3 situations found in Para 5 schedule 6. (Do you agree?)
• Charlotte will have to leave the secret garden.

The land inside Charlotte’s fence in front of her cottage

• Charlotte has been using the land as if it were hers. She in fact genuinely thought it was
hers. It’s fenced up – Seddon v Smith and she has full control of the property. The
requirements of possessing the land and intention to possess are quite easily established.
• The registration discussion will go very similarly to the discussion for the secret garden
as above and that will bring us to the para 5 schedule 6 discussion. She has been staying
in the cottage since May 2004 so the 10 year requirement will not be an issue as it was
above.
• Will Charlotte be able to argue any one of the exceptions here? She should argue for
the boundary exception found in para 5(4).
• 4 conditions to be satisfied (laid down in 5(4) itself)
o The land of the applicant is adjacent to the land claimed
o The exact boundary has not been determined
o The land has been registered for at least a year
o For at least 10 years prior to the application the applicant reasonably believed
that the land was theirs – Zarb v Parry (2011)
• The council acknowledges that the previous owner of the cottage must have wrongly
enclosed the strip of land indication that in all probability Charlote did not know that it
was not part of her land. It would be very reasonable for her to believe that the land
within the enclosure fence would belong to her.
• But she was sent a letter by the council informing her of the mistake. Does this affect
her claim? - In Crew v. London & Continental Holdings (2016) the Tribunal thought
that the ‘reasonable belief’ rule meant either reasonable belief for any 10 year period
before the application, or an application within a reasonable time of the 10 year period
 of reasonable belief ending. Otherwise, hardly anyone would succeed under this
exception.
• In its 2016 Consultation Paper, the Law Commission suggest that the adverse possessor
may have held the reasonable belief for any period of ten years and not necessarily at
the date of application, but propose by way of clarification and amendment that the
possessor must apply within six months of that reasonable belief ending. It is not clear
whether this will become law.
• As such, since it is likely that Charlotte would’ve made her claim soon after finding
out, we argue that she would be successful in her claim for the land in front of her
cottage.

Prepared by
Daniel Abishegam