Adverse Posession

Front 1

Elements of Adverse Possession

Back 1

Factual possession
Intention to possess
Possession must be adverse

Front 2

LRA 2002

Back 2

In force 13th October 2013
Schd 6 + s96,97,98
10 year limitation period applies for registered land

Front 3

Elements of factual possession

Back 3

Physical control
Single+exclusive possession
Dealing with land as own

Front 4

Slade J in Powell v McFarlane (1977)
On factual possession

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'Factual possession signifies an appropriate degree of physical control'
Determined by an objective test in the same case:

'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'

Front 5

Slade J in Powell v McFarlane 1977
On intention to possess

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'..to exclude the world at large, including the paper owner..so far as is reasonably practicable and so far as the law will allow'

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Animus possidendi

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Intention to possess

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Buckinghamshire CC v Moran 1990

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Factual possession + intention to possess

Fencing off land, padlocking gate, constructing flowerbeds, cultivating land

Knowledge of future plans of council not relevant.

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Seldon v Smith 1877

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'Enclosure is the strongest possible evidence of adverse possession.'

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Fruin v Fruin

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Intention of fence must be to exclude the world at large, fence erected to keep senile relation IN

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Basildon DC v Charge 1996

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Fence to keep in geese short term did not suffice

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Inglewood Investments Co Ltd v Baker 2002

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Fence to keep in sheep did not suffice

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Generay Ltd v The Containerised Storage Co Ltd 2005

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Fencing can backfire

Front 13

Pye v Graham 2002

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Factual possession- HOL held they had this as licences/willingness to pay rent were not granted

Intention to possess- maintained the land and used it as their own, grazing animals on the land + fencing off. Using land to its full potential. Lord Browne-Wilkinson- look at intention of acts not nature


Intention to possess not intention to own
Knowledge of intended future use

Front 14

Purbrick v Hackney LBC 2004

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Added corrugated iron and chain with padlocks to derelict property for equipment storage
No-one had easy access to it

Front 15

Redhouse Farms Ltd v Catchpole

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Island used for shooting wildfowl
Used it to max potential

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Intention to possess

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Normally inferred

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Techbild v Chamberlain 1969

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Transient and trivial acts, children playing on land & tethering of ponies not sufficient

Front 18

Lambeth LBC v Blackburn 2001

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Changing the locks

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Smith v Lawson

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Possession must be adverse not hostile.

D had been given a licence for life therefore got adverse possession under estoppel

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Lambeth LBC v Bigden 2000
Edginton V Clarke 1967

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Acknowledgement of title by squatter

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Beaulane Properties Ltd v Palmer 2006

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Adverse possession contravenes Art 1

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Baxter v Mannion 2010

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Land owner lost title due to not replying to application due to illness (later found that possession was not adverse)

Front 23

Leigh v Jack

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Possession must be adverse

Front 24

Edginton v Clark

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Adverse possession-

If AP makes offer to buy land he is acknowledging paper owners title & stops the clock ticking

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Williams v Usherwood 1982

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Successive adverse possessors amounts to continuous possession

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Markfield investments Ltd v Evans 2001

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Action for possession does not stop the clock ticking

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IAM Group Ltd v Chowdry

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Boundary dispute. Did the adverse possessor reasonably believe the land belongs to him?

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Registered land requirements for application

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Must prove all 3 elements been in existence for at least 10 years
Have to be in the property when applying
Lodge an application with Land Registry supported by statutory declaration

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Schd 6 para 8

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Application cannot be made if registered proprietor is unable to communicate decisions due to mental illness/physical inability preventing communication

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Reply to application

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65 working days to respond
no response= adverse possessor can be registered owner

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Objection to application

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RP has 2 years to stop possession from being adverse unless:
a) estoppel
b) adverse possessor legally entitled to land
c) boundary dispute

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Schd 6 para 2

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Application procedure

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s.28 LRA 2002

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Death of registered proprietor. Adverse possessor takes the property subject to interests which bound donor

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Mortgage

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Mortgage company notified of application, if they do not object adverse possessor takes free of mortgage

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Criminal offence

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s.114(1) + (2) Legal Aid Sentencing and Punishment of Offenders Act 2012

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s.114(1) Legal Aid Sentencing and Punishment of Offenders Act 2012

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a) The person is in a residential building as a trespasser having entered it as a trespasser
b) the person knows or ought to know that he is a trespasser
c) the person is living in the building or intends to live there for any period

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s.114(2) Legal Aid Sentencing and Punishment of Offenders Act 2012

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Not an offence if the trespasser had originally been a lessee or licensee

Front 38

European Convention of Human Rights 1950

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Art 1- entitlement to peaceful enjoyment of possessions
Pye states law is compliant with this

Front 39

Powell v McFarlane

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Factual possession
Dealing with land as the owner would
Intention to exclude the world at large including RP