ADVERSE POSSESSION1

The law on adverse possession is a set of rules which give an opportunity to a mere
trespasser actually to acquire better title to land than the person who legally owns it and to
whom it was once formally conveyed by way of a deed.

The squatter is sometimes said to acquire ‘an estate’ in the land, and on other occasions to
acquire ‘title’ to it. (However, there is no need to distinguish this). In order to establish
adverse possession the squatter must show that:

a) He has been in possession of the land;

b) The adverse possession has lasted for the prescribed time

POSSESSION

The squatter must take possession of the land either by dispossessing the owner, or by
entering at some time after the owner has discontinued his own possession. There are two
essential elements to possession, both must be established:

- Factual possession
- Intention to possess (animus possidendi)

FACTUAL POSSESSION

The adverse possessor must demonstrate a physical assumption of possession. In Pye v

Graham Lord Browne-Wilkinson stated the question was simply whether the defendant
squatter has dispossessed the paper owner by going into ordinary possession of the land for
the requisite period without the consent of the owner.

It must be noted that a licensee nor a tenant would be in adverse possession, because such
possession is with the land owner’s consent.

Slade J in Powell v McFarlane stated that the question was 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 that no-one else has done so.

The taking of possession can be the result of a series of events (where the last act will
establish possession) or some one-off activity that is maintained thereafter (enclosing the

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land and gating it). It is not necessary for the paper owner to be aware that they have lost
possession2 or as held in Treloar v Nute for the paper owner to be

inconvenienced by the acts of possession (it does not have to bother the paper owner of the
land).

In Wallis’s Clayton Bay v Shell-Max it was held that merely seasonal acts like growing
vegetables will not amount to possession. Moreover, in Leigh v Jack the court stated that
possession will be adverse if it is inconsistent (although it need not be) with the paper
owner’s use of the land.

In Buckinghamshire CC v Moran the court stated that just because the paper owner had
retained the land for a future purpose that does not mean that he cannot be disposed by
the adverse possessor.

In Purbrick v Hackney the successful adverse possessor had cleared a derelict shed, erected
a new roof, fitted a makeshift door and fixed a chain. The court stated that he could have
done no more to secure possession.

It has also been held that the acts of possession may serve a dual purpose. Thus, in
Hounslow v Minchinton fencing part of the claimant’s land to prevent the escape of the
adverse possessor’s dogs was held to be sufficient to establish physical possession,
although the motive behind the possession will be relevant when showing intention to
possess.

In Lambeth v Archangel it was held that padlocking a front door is a clear demonstration
of possession.

Port of London Authority v Ashmore – Court held that factual possession depended on the
nature of the land and the manner in which that land of that nature is commonly used. It
was not necessary to show physical presence every minute of the day.

Walker v Burton – issuing licenses to shoot amounted to factual possession.

THE INTENTION TO POSSESS

Slade J in Powell stated that “the intention… to exclude the world at large, including the
owner with the paper title… so far as it reasonably practicable and so far as the process of
the law will allow.”

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You should know that all that is required is an intention to possess, it does not have to show
that the squatter intended to acquire title. Thus, in Buckinghamshire CC v Moran the
squatter knew that the council had plans for the future use of the land, and made it clear
that he only intended to keep it until the council required it. Nevertheless the court held
that the adverse possessor cultivating the land, fencing it and installing a new gate
amounted to a final unequivocal demonstration of the adverse possessor’s intention to
possess the land and to exclude the owner.
This means that it is immaterial whether the squatter was aware of the paper owners
intention of future use, and the squatter’s use was consistent with that intention.2

Simpson v Fergus clarifies that acts of exclusion of the paper owner are required. A
declaration of intention, however clear, will not alone amount to possession. Further in Batt
v Adams fencing to keep in animals did not show intention to exclude others and so could
not find adverse possession.

However, in Clowes Developments v Walters it was held that the claimant’s mistaken
belief, that the land was held under a license meant that they could not have had the
intention to possess the land.

The recent case of Collingwood King v The Incumbent of the Benefice of Newburn in
the Diocese of Newcastle [2019] UKUT 176 (LT) may not break new ground but the
factual matrix is novel. After a church became redundant, it was closed and locked in 2004.
The respondent church authorities wanted to remove coffins from the private burial vault
belonging to the appellants, bury them elsewhere, and redevelop the building as a house.
In 2016, when the respondent church authorities applied to the Land Registry for first
registration of title, they claimed adverse possession of the appellant’s vault. The Upper
Tribunal rejected the claim. Judge Hodge QC accepted that nobody from the respondent
church authorities had ever entered the vault, nor had they prevented the appellants from
exercising their right to enter it. Their locking of the church amounted to an equivocal
act because it was done to exclude the general public and not to stop the appellants
from entering their family vault. Therefore, Judge Hodge found that the church had
never taken adverse possession of the vault and the appellants had not abandoned or
discontinued their possession of it.

In Malik v Malik [2019] indicates that there may sometimes be a need for subjective
evidence, particularly if the acts of user are not sufficiently unequivocal to give rise to proof
of intention. At different times, the claimant in Malik explained his occupation of his
father’s flat as being on different bases (for different reasons). His state of mind, which
was relevant because he had to occupy on his own behalf and for his own benefit to

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establish adverse possession at the relevant time, was therefore remitted to be determined
at trial. (This means that the squatters subjective intentions may also be relevant).

In Heaney v Kirkby [2015], creating hardstanding for parking on a roadside verge, along
with various gardening activities such as laying topsoil and planting a flower border,
constituted sufficient possession. Occasional vehicular use by others did not matter, nor
was it necessary or reasonable for the land to be enclosed.

In Thorpe v Frank [2019], the Court of Appeal found that, by permanently repaving and
altering the level of a small triangular piece of the forecourt to a semi-detached bungalow,
the claimant had shown a sufficient degree of control that amounted to adverse possession
even without enclosing the land.

In Amirtharaja v White [2021] the court found the claimant’s actions of gating and
enclosing a passageway was insufficient and too equivocal to be evidence of their intention
to possess the land by excluding the owners. What they had done was equally consistent
with them having a right of way on the land, access to which they wanted to protect.

Permissive occupation, payment and acknowledgement

a. Acts done by permission (by way of a lease or license) of the paper owner do not
exclude them from the land and so cannot contribute to an adverse possession claim,
even where that permission is an informal licence (implied licence).

b. Payment for land is an admission that the recipient has rights over the land
concerned. But ceasing to make payments can start adverse possession.

c. Acknowledgement of the paper owner’s title by other means will prevent adverse
possession, not only by the acknowledger but also by their successors, but only
when made in writing.

HOW CAN THE OWNER STOP THE TIME RUNNING?

The most obvious way to do this is to start proceedings to recover the land within the
limitation period. Another way is to ensure that the occupier provides an
acknowledgement of the paper owners title.

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In BP properties v Buckler the appellant’s parents had been in adverse possession of a farm.
The owner of the property had made several attempts to recover the land but it resulted in
hostility. The owner later sent a letter informing the occupiers that they would be allowed
to stay in the house in the house rent-free. The Court of Appeal held that permission given
by the paper owner had stopped the time from running. This means that a unilateral
declaration of granting permission to the squatter may deny adverse possession.

Although the decision in BP Properties v Buckler was criticized at the time it has been
approved by the Privy Council in Smith v Molyneaux.

COMPLETION OF PERIOD BY ANOTHER PERSON

If another person takes the property, the time will continue to run in his favour, and he can
complete the possession period by adding his time to that of his predecessor. This can be
done irrespective of his co-operation with that of the other squatter. However if the squatter
had abandoned his rights or had been dispossessed by another squatter, the time would re-
set against the paper title owner.

Points to note

Old law

• If another person takes the property, the time will continue to run in his favour, and
he can complete the possession period by adding his time to that of his predecessor.
This can be done irrespective of his co-operation with that of the other squatter.
• Moreover, a squatter who has been dispossessed by another squatter may bring
proceedings against the new squatter for possession
In Asher v Whitlock - Williamson, a squatter on the unregistered land of a Lord, built a
cottage which housed himself, his wife (widowed) and their daughter. Williamson died,
leaving the land upon which the cottage was built to his widow until she remarried, and
then to his daughter.

His widow remarried, but his daughter did not take possession of the property. The
remarried wife and daughter died at a similar time. Both the daughter’s descendant and the
wife’s husband claimed possession of the land.

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The Lord (original owner who is not relevant to the case) could have claimed possession at
any time within 20 years of the start of Williamson’s squatting (adverse possession) but he
did not do so. Here the court held that an earlier title will take priority over a later title. As
the daughter’s descendant’s title originated before that of the wife’s husband (on the death
of Williamson as opposed to the start of the new husband’s occupation), the descendant’s
title took priority.

• Remember that Asher v Whitlock will only apply under the old law (pre-LRA
2002).

New law

Schedule 6 Para 11

a) It is possible for a person (squatter) to come in between and continue the occupation
of another former adverse possessor

b) O is the registered proprietor of land. A goes into AP, and after 6 years, dies.
Through A’s will B is the successor in title and B remains there for balance period
(4 years).

c) O is dispossessed by C, who occupies the land for 6 years and then is dispossessed
by D. D occupies the land for 2 years and is then dispossessed by C, who occupies
the land for the balance period. C can rely on D’s possession.

d) In Sze To Chun Keung v Kung Kwok Wai David – Court held that the rights
between the successive persons who adversely possessed the land is irrelevant, when
considering whether the paper title owner’s rights have been extinguished.

ADVERSE POSSESSION OF UNREGISTERED LAND

According to section 15(1) Limitation Act 1980 no action shall be brought by any person
to recover any land after the expiration of 12 years from the date on which the right of
action accrued to him or, if it first accrued to some person through whom he claims (e.g.
the person who sold him the land), to that person. So the period is generally 12 years and
it may be established by a continuous series of adverse possessors of land.

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Section 17 states that when a squatter has completed the limitation period the dispossessed
owner’s rights to recover the land is barred and his title to the estate is extinguished. In
other words there is no one with a better title to the land.

It must be noted that this will not amount to a conveyance and the adverse possessor
will take the land subject to all third party rights over that land (this is because he is
not a ‘purchaser’ of the land).

LEASEHOLDS

If a stranger adversely possesses land which is held on a lease, time will begin to run against
the tenant from that moment, but it does not begin to run against the reversioner (the
landlord) until the lease has expired. Note also that where a tenant encroaches on adjoining
land, there is a presumption that they have done so for the benefit of their landlord.

Further as held in the case of Fairweather v St. Marylebone Property The freeholder may
evict the adverse possessor once the lease has determined (e.g. after the tenant has
surrendered their tenancy to the freeholder).

ADVERSE POSSESSION OF REGISTERED LAND UNDER LRA 1925

This is where the squatter has completed 12 years of adverse possession before 13th
October 2003. According to Section 75(1) LRA 1925 upon completion of 12 years of
adverse possession the paper owners title will not be extinguished, but would be held on
trust by him for the squatter who could apply for registration of title under his name by
virtue of section 75(2) LRA 1925.3

In the event the paper owner attempts to sell the property before registering the title in the
squatter’s name, the purchaser would be bound as the squatter has an overriding interest
under schedule 3 paragraph 2 LRA 2002

3
Schedule 12, para 18 LRA 2002

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ADVERSE POSSESSION OF REGISTERED LAND UNDER LRA 2002

Under the new arrangements, an adverse possessor who wishes to be registered as the
proprietor of an estate can obtain registration:

- By applying for it; or

- By a court order following the defence of a court action

APPLICATION BY AN ADVERSE POSSESSOR FOR REGISTRATION

1. Schedule 6 para 1 states that the squatter may apply to the registrar to be registered
as the proprietor of a registered estate if he has completed ten years of adverse
possession

2. Schedule 6 para 11 states that in completing the period it is possible for a person to
complete a period begun by another
3. On receiving the application the registrar must give notice of it to the registered
proprietor. The squatter will normally be in possession when the application is
made.

4. Schedule 6 para 4 states that where notice is given and the paper owner does not
respond or does not oppose the application the applicant may be registered as the
proprietor of the estate.

5. Where the paper owner responds and opposes the application, it will in general be
rejected. There are however 3 situations despite objection the squatter will be
registered as the proprietor.

THREE EXCEPTIONS

Estoppel

Under LRA 2002 Schedule 6 para 5(2) an adverse possessor can insist on registration where
it would be unconscionable for the registered proprietor to dispossess them.

Independent right to estate

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Under LRA 2002 Schedule 6 para 5(3) if the squatter separately has a proprietary claim to
the land (e.g. where they have agreed to buy it and have taken occupation they will be
entitled to seek registration, also where the squatter may be entitled to the property by will
or under the rules on intestacy)

Boundary disputes

Under LRA 2002 Schedule 6 para 5(4) an adverse possessor will be registered as proprietor
of any such strip of land (Schedule 6 para.5(4) if:

a. they own land adjacent to that for which their own application is made
b. the exact line of the boundary has not been determined
c. the applicant has held adverse possession for a period of at least ten years, ending
at the date of the application
d. throughout that period the applicant or their predecessor in title reasonably believed
that the land belonged to them (or was at least unsure who the owner was), and
e. the estate to which the application relates was registered more than a year before the
application.

In IAM Group plc v Chowdrey ([2012], IAM was the registered proprietor of 26 Rye Lane
and C was the registered proprietor of 26A which was physically connected to 26. C had
had exclusive possession of part of 26 since 1990. He had used these rooms as storage for
his business and the only means of access to them was through his property. IAM brought
possession proceedings in August 2010. C’s defence relied on adverse possession pursuant
to sections 98(1)(a) and (b) of the Land Registration Act 2002 and he applied to be
registered as proprietor with title absolute.

IAM argued that C did not reasonably believe that the disputed property belonged to him
as required by Schedule 6, para. 5(4)(c). First, the filed plan at the Land Registry showed
the true boundaries of the property very clearly and C’s solicitors knowledge of this could
be imputed to C. Second, IAM’s solicitors had written to C’s solicitors in 2009 telling him
that he had no interest in the property.

IAM failed. First, it was a question of C’s knowledge and belief and there could be no
imputing of his solicitor’s knowledge to him. Second, (applying Zarb v Parry) C was not
obliged to take IAM’s solicitors claims at face value and was entitled to dispute them.

Etherton LJ said:

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‘The question in each case is what, in all the circumstances, is the proper conclusion as to
the reasonableness or otherwise of the continued belief as to ownership by the adverse
possessor.’

Dowse v Bradford Metropolitan District Council [2020] UKUT 202 (LC) offers
guidance on the point, indication that it only applies to true boundary disputes where the
whole of the land, or a substantial part of it, is adjacent to the squatter’s land. This perhaps
goes some way to support a narrow reading of the exception as being to ensure that land
registry plans are inconclusive as to boundaries.

More recently in Crook v Zurich Assurance it was held that the claimants belief that he
owned the land should last for 10 years, however such a belief need not last until the
application for adverse possession is made.

Adverse Possession and Human Rights

As explained above particularly under unregistered land or under registered land operating
under the LRA 1925, the law on adverse possession has the eefect of destroying title of the
land owner. It was ar gued in Beaulane Properties v Palmer that this right may contradict
the land owners right to peaceful enjoyment of his/her land as protected by Article 1,
Protocol 1 of the ECHR which has been incorporated by the Human Rights Act 1998.

A similar argument was raised Pye v Graham where it was decided that removal of title by
limitation defines the terms on which ownership is allowed by the English legal system,
and so is neither an interference with nor a deprivation of the owner’s possession of the
land. The court conceded an interference with the paper owner’s right of access to a court
under Article 6 of the European Convention on Human Rights, but considered the
interference justifiable in view of the time limits involved. Mummery LJ stated that the
rules on adverse possession prior to the introduction of the LRA 2002 were a lawful and
proportionate application of limitation principles and so a title defeated by adverse
possession was not a title denied in violation of Article 1 of Protocol 1 of the ECHR.

This issue was subsequently considered by the European Court of Human Rights. In JA
Pye (Oxford) Ltd v United Kingdom, the court of first instance found that the deprivation
of registered title to land under LA 1980 and LRA 1925 was a breach of Article 1 of the
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First Protocol of the European Convention on Human Rights. The court based its decision
on the lack of compensation and the lack of procedural safeguards for the registered title
holder.

The United Kingdom government appealed successfully to the Grand Chamber of the
European Court of Human Rights. The Grand Chamber held that there was no violation of
the Convention: JA Pye (Oxford) Ltd v United Kingdom (2008).

In Ofulue v Bossert, the Court of Appeal confirmed that the law of adverse possession does
not violate human rights and that the decision of the Grand Chamber in Pye should be
followed unless there were ‘very good reasons’ for departing from it. Thus, it appears that
the doctrine of adverse possession does not violate human rights.

More recently, in cases such as Manchester City Council v Pinnock and Hounslow
LBC v Powell although the Supreme Court acknowledged that it is possible to bring a
Human Rights defence in a claim for adverse possession, it would only succeed in truly
exceptional circumstances.

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