Adverse Possession

Front 1

Schedule 6 para 5(4)

Back 1

AP’sor places fencing or boundary line in its present position for 10 years.

If the squatter reasonably believed that the boundary belonged to him/her - applicant is entitled to register as proprietor for the overlapped strip of land.

Front 2

Boundary Dispute example:

Zarb v Parry (2012)

Back 2

Reasonable mistake must be proven - if at anytime the mistake becomes unreasonable, that is a potentially disqualifying factor even if it did start as reasonable.

Otf - reasonable - property dispute was dormant - Surveyor’s report confirmed D’s belief - written by qualified surveyor and had given reasons suppporting his opinion.

Front 3

Boundary Dispute example:

Zarb v Parry (2012)

Back 3

Reasonable mistake must be proven - if at anytime the mistake becomes unreasonable, that is a potentially disqualifying factor even if it did start as reasonable.

Otf - reasonable - property dispute was dormant - Surveyor’s report confirmed D’s belief - written by qualified surveyor and had given reasons suppporting his opinion.

Parties believed in the report

Front 4

Statutory Change: LRA 2002

Back 4

For registered land:

s.96-98 + Schedule 6 LRA 2002 namely paragraphs 5(1)-(5)

Contrast it with s.75 LRA 1925

(Essay - no need to go into detail)

Front 5

Factual possession: must be exercised openly

Back 5

Roberts v Swangrove Estates (2007) - must be exercised openly and must not be concealed; ensures fairness - title owner has opportunity to challenge possession.

Front 6

New Law Procedure: Step 2

Back 6

Land Registrar - if allowing application - mandatory notice must be given to the title owner - 65 days to object to the registration.

(No such requirement under the old law - “Let the sleeping dog sleep”)

If owner does nothing despite notice - he really deserves to lose the land.

Front 7

Factual / Actual Possession:

Back 7

MacFarlane v Powell per Slade LJ

Physical exclusion of others including the owner himself e.g. building a fence

Front 8

Baxter v Mannion

Back 8

A registration could be mistaken - obtained by a person who was not entitled to apply for it.

A person not entitled to apply to be registered as the proprietor - Parl could not have intended such a person could get registered title.

Front 9

New Law’s procedure:

Back 9

AP for 10 years - applies to Land Registrar to be registered as new proprietor (Land registrar has discretion to allow application) - must prove a case for AP (establish elements)

Front 10

New Law’s procedure: Step 1

Back 10

AP for 10 years - applies to Land Registrar to be registered as new proprietor (Land registrar has discretion to allow application) - must prove a case for AP (establish elements)

Front 11

New Law’s procedure: Step 1

Back 11

AP for 10 years - applies to Land Registrar to be registered as new proprietor (Land registrar has discretion to allow application) - must prove a case for AP (establish elements)

Front 12

Boundary Dispute example:

Zarb v Parry (2012)

Back 12

Unreasonable mistake = disqualifying factor (even if it was initially reasonable)

Otf - reasonable mistake (relied on qualified surveyor) - property dispute was dormant - Surveyor’s report confirmed D’s belief - written by qualified surveyor and had given reasons supporting his opinion

Purchasers may need to take neighbouring landowners to reaffirm boundaries.

Front 13

Pye v Graham today

Back 13

Pye v Graham may not have been decided differently:

Old law: G clocked in 12 years - automatically entitled to land

Today: even if P was informed and rejects, G could argue Proprietary Estoppel - G asked for license renewal but nothing was done and P later promised G he could stay as long as he wanted at least until planning permission for a new building was obtained - clear assurance

Front 14

The New Law: LRA 2002

Back 14

No longer an automatic barring of title by adverse possession

Owner has now a much better opportunity to challenge the adverse possession

Front 15

Exceptions for Squatter (Adverse Possessor better in this case)

Back 15

Very common - boundary disputes

Schedule 6 para 5(4) - genuine cases where land boundaries are not fixed by Land Registration Rules.

Front 16

Exceptions for Squatter (Adverse Possessor better in this case)

Back 16

Very common - boundary disputes

Schedule 6 para 5(4) - genuine cases where land boundaries are not fixed by Land Registration Rules.

Front 17

Concept:

Back 17

It offers an opportunity to a mere trespasser/squatter to acquire a better title to the land than a person who legally owns it.

Front 18

Practical concern:

Back 18

How and when can a landowner take action against someone compromising his land?

This reflects the old common law focus on remedies for concrete principles rather than creating abstract rights.

Front 19

Terms of Legal Process:

Back 19

AP is an expression of policy that prevents people from sleeping on their rights.

By sleeping on these rights, they allow the squatter to take the advantage of their rights.

Front 20

Problem: Public Perceptions

Back 20

Undeniable that the public regard Adverse Possessors as “land thieves” - as they gain “everything from nothing.”

Front 21

Problem: Registry

Back 21

In regards to even today, with the LRA 2002, it stands doubtful whether registering one’s title truly provides protection.

If registration guarantees validity of the title (subject to exceptions) - should paper owners be vulnerable to claims of trespassers?

Front 22

Rationale: Why is it maintained?

Back 22

Land is a scarce and finite resource - issues of vacancy can be resolved.

Hounslow v Minchinton (1997) - AP’sors can bring neglected land up to use - D built a summer house (enroached onto dispute strip) and maintained the hedge.

P had possession of the land but made no use of it.

Front 23

Law Commission Report No. 254 identifies reasons to maintain:

Back 23

Dealings with land that are never registered - denying registration renders the land unsaleable

Squatters fulfills useful roles in ensuring the land remains in commerce and is not rendered sterile - in the event the registered proprietor disappears

Reasonable mistake as to rights and they acted in their detriment over those many years.

Front 24

Utilitarianism Argument:

Richard Posner, ‘Economic Analysis of Law’ 2007

Back 24

Referring to land law as a means to guide the allocation of resources:

“...without property rights there is no incentive to incur these costs because there is no reasonably assured reward for incurring them”

Front 25

Auchmuty, “Not just a good children’s story: a tribute to Adverse Possession” 2004

Back 25

“On a broader construct of social morality the sanctity of land ownership generates the idea of respect of property rights.”

(Those with land must appreciate it and not leave it to waste. Those who properly utilize the land deserve to have it)

Front 26

Elements to constitute AP:

Reiterated in Pye v Graham by HoL

Back 26

The conjunction of acts of possession with an animus possidendi (intention to possess) that establishes AP.

Established by demonstrating required degree of exclusive possession of the land + intention to possess to exclusion of all others (including actual paper owner).

Front 27

Possession must demonstrate possession is adverse (contrary to owner’s rights)

Back 27

Squatters sitting with legal rights (i.e. leases, licenses or even with consent of the owner) - no AP, not adverse to title owner

Colchester Borough Council v Smith

Front 28

Factual / Actual Possession:

Back 28

MacFarlane v Powell per Slade LJ

Physical exclusion of others including the owner himself e.g. building a fence

Front 29

Examples of Physical Exclusion:

Back 29

Seddon v Smith - fencing / enclosure of the land

Buckinghim CC v Moran - new lock & chain on the gate (good evidence)

Front 30

Factual possession: must be exercised openly

Back 30

Roberts v Swangrove Estates (2007) - must be exercised openly and must not be concealed; ensures fairness - title owner has opportunity to challenge possession.

(This case concerned fishing and dredging a river)

Front 31

Intention to possess:

Back 31

Hoffman J in Buckingham CC v Moran - intention to possess - need not be an intention to own

Pye v Graham - owner gave permission to Squatter - (regarded as squatter - initial license had expired = no legal permission) to stay until planning permission for a new building is obtained - actions and intentions of AP matched - sufficient to establish

Front 32

Intention to Possess:

Prepared to accept lease

Back 32

Lambeth LBC v Blackburn - intention to possess can still be established even if Cl is prepared to accepted a lease on the property had it in been offered.

Front 33

Adverse =/= Hostile

Back 33

Owner must have been “dispossessed” by squatter - Owner left with no possession over the property

Powell v McFarlane - Slade LJ: “dispossession” - taking of possession from another without others’ license or consent

Front 34

Lord Browne-Wilkinson:

Back 34

In Pye v Graham - dispossession where squatter assumes possession in the ordinary sense of the word - owner cannot be in possession at the same time.

Front 35

Statutory Change: LRA 2002

Back 35

For registered land:

s.96-98 + Schedule 6 LRA 2002 namely paragraphs 5(1)-(5)

Contrast it with s.75 LRA 1925

(Essay - no need to go into detail)

Front 36

Larrissa Katz, “The Moral Paradox in Adverse Possession” (2010)

Back 36

Post LRA’02 - AP better described as “bloodless coup de’tat” - “a new ruler ousts the old office holder and steps into her place.”

Parliament has been persuaded to changed the law by “land theft” political influence.

AP only successful where “peaceful, open and notorious” - theft requires a factor of dishonesty (i.e. hiding the activity)

Front 37

In light of Roberts v Swangrove Estates (2007)

Back 37

Exercising of possession must be done openly and must not be concealed.

Front 38

Statutory Adverse Possession:

Unregistered Land

Back 38

Still governed under s.15-17 of the Limitation Act 1980

Front 39

Old Law and New:

Back 39

s.75 LRA 1925 and s.15 LA 1980 once Squatter satisfies 12 years - nothing could be done - Owner’s claim is barred and property now held in trust for the AP

12 years must be continuous - no short breaks in between at all.

Front 40

The New Law: LRA 2002

Back 40

No longer an automatic barring of title by adverse possession

Owner has now a much better opportunity to challenge the adverse possession

Squatter has to apply and prove a case to land registrar - owner is informed and given time to expel.

Front 41

New Law’s procedure: Step 1

Schedule 6 para 1

Back 41

AP for 10 years - Squatter has the right to apply to Land Registrar to be registered as new proprietor (Land registrar has discretion to allow application) - must prove a case for AP (establish elements)

Front 42

New Law Procedure: Step 2

Back 42

Land Registrar - if allowing application - mandatory notice must be given to the title owner - 65 days to object to the registration.

(No such requirement under the old law - “Let the sleeping dog sleep”)

If owner does nothing despite notice - he really deserves to lose the land.

Front 43

Application can be intervened:

Back 43

Registered mortgagees and other people interested in the land (including purchasers if deposits / instalments are paid) are also notified.

If anyone of them intervenes, LR will check their claims of interest - AP is prima facie denied application

Front 44

No response?

Back 44

If no one responds at all - the land is deemed abandoned and the title is transferred properly to the squatter (Adverse Possessor)

Front 45

Exceptions for the Squatter (two-fold):

Back 45

Even registered proprietor (rp) rejects - Schedule 6 para 5(2) may be raised:

Conduct of rp was unconscionable - squatter may raise proprietary estoppel - owner had made assurances, squatter relied and act to his/her detriment to the strength of the assurance.

Front 46

Discretion:

Back 46

Land Registrar still holds the ultimate discretion to allow the squatter’s application or not.

Front 47

Exception 2 for Squatter:

Back 47

Schedule 6 para 5(3)

Squatter is for “some other reason entitled” to be registered as proprietor

e.g. beneficiary under a will / intestacy of the previous registered proprietor

Rarely happens - narrow application

Front 48

Pye v Graham today

Back 48

Pye v Graham may not have been decided differently:

Old law: G clocked in 12 years - automatically entitled to land

Today: even if P was informed and rejects, G could argue Proprietary Estoppel (Schedule 6 para 5[2])- G asked for license renewal but nothing was done and P later promised G he could stay until planning permission received - clear assurance

Front 49

Exceptions for Squatter (Adverse Possessor better in this case)

Back 49

Very common - boundary disputes

Schedule 6 para 5(4) - genuine cases where land boundaries are not fixed by Land Registration Rules.

Front 50

Schedule 6 para 5(4)

Back 50

AP’sor places fencing or boundary line in its present position for 10 years.

If the squatter reasonably believed that the boundary belonged to him/her - applicant is entitled to register as proprietor for the overlapped strip of land.

Front 51

Boundary Dispute example:

Zarb v Parry (2012)

Back 51

Unreasonable mistake = disqualifying factor (even if it was initially reasonable)

Otf - reasonable mistake (relied on qualified surveyor) - property dispute was dormant - Surveyor’s report confirmed D’s belief - written by qualified surveyor and had given reasons supporting his opinion

Purchasers may need to ask neighbouring landowners to reaffirm boundaries.

Front 52

Baxter v Mannion

Back 52

A registration could be obtained by a person who was not entitled to apply for it - could be a mistaken one

A person not entitled to apply to be registered as the proprietor - Parl could not have intended such a person could get registered title.

Front 53

Reg. proprietor may claim for Rectification of Register - on Boundary mistake

Back 53

Baxter v Mannion - “correction of mistake” should not be limited to only those caused by official errors in the system.

Plaintiff could apply correction of a mistake made by parties - not just those made by system error

Front 54

Stringent?

Back 54

65 days is all the owner gets - there is no provision for an extension of time no matter what the excuse.

Submitted: 65 days is more than enough - only in very exceptional circumstances would an owner not receive notice at all or be unable to act upon it - safeguard: other interest holders may object too

Front 55

Conclude:

Back 55

LRA 2002 has definitely reduced AP claims to “trickle.”

It retains the fairness of procedures and only really takes away land where the paper owner has truly slept on his rights (deserving to lose the land).

Katz’s description is the best.