Adverse Possession

LECTURE

Justin Brunskell.
Meaning
Adverse possession of land is the possession of it by
someone other than the registered proprietor or
unregistered owner without their consent.
If adverse possession continues for long enough, the
adverse possessor (squatter) may acquire a better right
to the land than the original or ‘paper’ owner.
Why allow adverse possession?

Limitation on legal actions

Land is a finite resource

“Possession is nine tenths of the law” – any person in peaceful possession of land is treated
as having good title to it, see Harrow London Borough Council v Qazi [2004] 1 AC 983

Relativity of title
Why adverse possession should not be allowed?

Land registration

Pye v Graham [2002] UKHL 30

Distress of displaced homeowners?

entitled to the peaceful enjoyment of his
prived of his possessions except in the public
tions provided for by law and by the general

Human Rights – Pye v UK (2007)

not, however, in any way impair the right of the
deems necessary to control the use of property
nterest or to secure payment of taxes or other
 Relevant Law
Type of land Dates Relevant law

Unregistered Since 1980 Limitation Act 1980

Registered Limitation Periods completed by Limitation Act 1980 and

12th October 2003 Land Registration Act 1925
s.75
Registered Limitation Periods completed Land Registration Act 2002
after 13th October 2003

Registered and Limitation Periods completed Legal Aid, Sentencing and

unregistered after 1st September 2012. Punishment of Offenders
residential building Act 2012 s.144
(“LASPOA 2012”)
Limitation Act 1980
Applies to unregistered land whatever the date of adverse possession. It also
applies to registered land where the required period of adverse possession has
been completed before 13th October 2003

Main period of limitation is 12 years

See Schedule 1 and s.17

Land Registration Act 1925
The main purpose of LRA 1925 s. 75 was to apply the
Limitation Act 1980 to registered land where the period of
limitation was already complete before 13th October 2003,
the date at which LRA 2002 came into force.

Trust mechanism imposed

Land Registration Act 2002

ss. 96-98 apply to

No automatic barring of
registered land where the
title – requires squatter to
limitation period under
apply to be registered
the Limitation Act 1980 is
after being in adverse
not complete before 13th
possession for 10 years.
October 2003.
LASPOA 2012 s.144

This makes squatting in residential premises a criminal offence.

The Act does not state what effect it has on adverse possession.
Best v Chief Land Registrar [2015] EWCA Civ 17
What a squatter needs to show
Discontinuance or dispossession of the paper owner and

Adverse possession by the squatter:

Intention to possess Without consent of the
Physical possession (animus possidendi) original owner

For the required time.

Discontinuance or dispossession
LA 1980 sch.1 para. 1

Rains v. Buxton (1880) 14 Ch. D. 537 at pp. 539-540 by Fry J:

"the difference between the dispossession and the discontinuance
of possession might be expressed in this way - the one is where a
person comes in and drives out the others from possession, the
other case is where the person in possession goes out and is
followed into possession by other persons".
Dispossession
Powell v McFarlane (1979) 38 P. & C.R. 452

Pye v Graham [2002] UKHL 30

 there will be dispossession where the squatter ‘assumes
possession in the ordinary sense of the word’
- Lord Browne-Wilkinson
Adverse possession
Limitation Act 1980 schedule 1 para.8(1): If the land simply
remains unoccupied, the limitation period will not start to run.

An intention to possess
An absence of consent
The required degree of the land to the
by the original owner
exclusive exclusion of all others,
i.e. the original owner
physical possession, including the actual
did not give permission
owner
meaning occupation or for the squatter to be
-
control of the land on the land
‘animus possidendi’
Physical Possession
Red House Farms (Thorndon) Ltd v Catchpole [1977] 2 EGLR 125
Tecbild Ltd v Chamberlain (1969) 20 P. & C.R. 633
Prudential Assurance v Waterloo (1999) 17 E.G. 131
Buckinghamshire County Council v Moran [1990] Ch. 623
Pye v Graham [2002] UKHL 30
George Wimpey & Co Ltd v. Sohn [1967] Ch. 487
Battersea v Wandsworth (2001) 19 EG 148
Greenmanor Ltd. v Pilford [2012] EWCA Civ 756
Intention to possess
Powell v MacFarlane at p.471, Slade J :
‘animus possidendi involves the intention, in one's own name and
on one's own behalf, to exclude the world at large, including the
owner with the paper title if he be not himself the possessor, so far
as is reasonably practicable and so far as the processes of the law
will allow.’
Buckinghamshire County Council v Moran [1990] 1 Ch 623
Inglewood Investment Co Ltd v Baker [2003] 2 P. & C.R. 23
Pye v Graham [2002] UKHL 30
 Without consent
Tenancies
LA 1980 Schedule 1 paras 5(1) (2
London Borough of Tower Hamlets v Barrett [2005] EWCA Civ 923

Trustees
A trustee cannot acquire title by adverse possession against a beneficiary
– Limitation Act 1980 s. 22(2).
This will also mean that one co-owner of property cannot acquire title
against the other by adverse possession.
Licences

Express Licences
• Pye v Graham
• Trustees of Grantham Christian Fellowship v
Scouts Association [2005] EWHC 209 (Ch)
• BP Properties v Buckler [1987] 2 EGLR 168
• Smith v Molyneaux [2016] UKPC 35.
Licences

Implied Licences
• Leigh v Jack (1879) 5 Ex.D. 264
• Wallis’s Cayton Bay Holiday Camp v Shell-Mex [1975] Q.B. 94
• Limitation Act 1980, Schedule 1, para. 8(4)
• Buckinghamshire County Council v Moran
• Pye v Graham.
Stopping the Clock
• Successful action for possession within limitation period
• Regaining physical possession (must be meaningful)
Zarb v Parry [2011] EWCA Civ 1306
• Acknowledgement of the paper owner’s title by the squatter
LA 1980, sections 29 – 30 (in writing and signed)
Archangel v Lambeth (2000) EGCS 148
Bigden v Lambeth (2000) ECGS 147
• Payment of rent by the squatter

• The grant of a licence

• BP Properties v Buckler [1987] 2 EGLR 168
• Smith v Molyneaux [2016] UKPC 35

• Letter threatening action

• Wallis’s Cayton Bay Holiday Camp v Shell-Mex [1975] Q.B. 94
• Buckinghamshire County Council v Moran [1990] 1 Ch 623
• Pye v Graham

• Fraud, concealment or mistake

• LA 1980 s.32
• Beaulane v Palmer [2005] EWHC 817
The effect of adverse possession
LA 1980 s.17 -
• No conveyance of land to the squatter
• The squatter takes land subject to all proprietary obligations, even
if they are unregistered, since they are not a purchaser: Re Nisbet
and Potts’ Contract (1906) 1 Ch 386

Mortgages
LA 1980 s.29(3):If the mortgage was taken out before the adverse
possession commenced, the squatter will be bound by it, unless no
payments were made under the mortgage for the limitation period
Unregistered Land
• Possessory title
• Title insurance
Free
• Registration
hold
land
• Squatter extinguishes tenant’s estate after 12 years.
• Does not extinguish the landlord’s estate until 12 years after the landlord
Leas
has the right to possession against tenant.
ehol
• Fairweather v St Marylebone Property [1963] AC 510
d
land
Registered Land - Periods of limitation completed by 12th October
2003
• LRA 1925 s. 75
Free
• s.70(1)(f) LRA 1925
hold • LRA 2002 schedule 3 para. 2.
Land
• LRA 1925 s. 75
• Spectrum Investment Co v Holmes [1981] 1 WLR 221
Leas
ehol • Central London Estates v Kato Kagaku [1998] 4 All ER 948
d
land
Registered Land - Limitation periods completed after
13th October 2003
Land Registration Act 2002 ss. 96-98

Adverse possession, by itself, does not bar the registered proprietor’s title (LRA 2002 s.96)

Until they have made an application to be registered, the squatter has no rights in the land

Can defend an action for possession only if they can make out one of the grounds in
schedule 6 paragraph 5

It is for the Land Registry to determine initially whether someone is in adverse possession,
not the courts: Swan Housing Association v Gill [2012] EWHC 3129 (QB)
• Notification by the land registry to:

 the registered proprietor;

 any registered chargee (mortgagee);
 if the estate is leasehold, the registered proprietor of any superior
registered estate (for example, the freehold);
 certain other people interested in the land (LRA sched. 6 paras.1,2)

• 65 days to respond

• If no response, land treated as abandoned, and squatter registered.

Baxter v Mannion [2011] EWCA Civ 120
 Objections
If there is an objection, then the squatter will not be registered as the proprietor
unless they fall within one of the exceptions in paragraph 5 of schedule 6:
(1) proprietary estoppel;
(2) squatter otherwise entitled to the land; or
(3) where the squatter is the owner of adjacent property and has been in
adverse possession of the land in question under the mistaken but
reasonable belief that he or she was the owner of it.

IAM Group Plc v Chowdrey [2012] EWCA Civ 505

Rejected applications
Rejected applications: Registered proprietor has 2 years to evict
the squatter or otherwise regularise the position.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.144

• Originally unclear how it fit with the general law of adverse

possession – could a squatter of a residential building still acquire
title?
• Not clear what a residential building is – e.g. a flat above a shop?
A shop with a living room behind it? A kitchen and rest room in a
warehouse?
• Retrospective nature of the offence – ss(7)
See you next week