Adverse Possession Problem Question

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Land Law (Adverse Possession) Problem Question (3000 words)

In this scenario, Molly is concerned to establish the status of the plot of land that lies beyond the garden of the house that she has inherited from her cousin, Ms Twigg. The plot is adjacent to the garden of the property, and is a natural extension of the garden’s length. Ms Twigg, and subsequently Molly, have taken measures to demarcate the plot of land, clear it, and assert a measure of control over it. Molly is not keen to establish title over the land, in order to prevent the local council from proceeding with their plan to convert it into a highway lay-by. It is possible, as will be seen, that the doctrine of adverse possession operates in this situation so that by virtue of the fact that Ms Twigg and Molly have asserted some control over the plot, and there has not, until 1997, been any expression by the local council of its control over the plot, Molly can rightly claim ownership of the plot.

Section 15 of the Limitation Act 1980 is entitled ‘Time limit for actions to recover land’. The section is concerned with the time limits after which a legal owner of a piece of land cannot bring an action to recover the land in question where third party rights have been accrued. It states ‘No action shall be brought by any person to recover any land after the expiration of twelve 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, to that person’ (section 15(1)). There are, of course, certain provisos in the latter part of the section, the relevant ones of which will be discussed, but if the section does indeed apply, it would mean that after the period of 12 years from the date Ms Twigg obtained a right in the land, the local authority would lose their title to it. This is provided for by section 17 of the Act.

This, then, is one of the statutory bases for the doctrine of adverse possession. What are the elements of this doctrine? It is clearly a manifestation of the concept of relativity of title that is so central to English land law; that is that all title to land is only relative to other claims on that land, and never absolute in the true sense. It is a means of granting ownership to persons who do not have legal title to the land in question, as is the case here. Indeed, it is usually very clear in cases of adverse possession that not only does the claimant not have title, but an identified other party does have legal title. This is why the doctrine is so controversial; it deprives one party of a legal right in favour of a second party with no legal title. Adverse possession operates where, within the period of time mentioned above in the Limitation Act 1980, the legal owner (in this case the local council) fails to take action to evict a so-called ‘squatter’ (in this case Ms Twigg and subsequently Molly) from the land in question. In the case of Newington v Windeyer (1985), the doctrine was applied in practical terms. It was stated that possession gives title that is ‘good against everyone except a person who has better, because older, title.’ This means that even a wrongful intruder can acquire title in another’s land.

The doctrine of adverse possession was most recently considered in the seminal case of JA Pye (Oxford) Ltd v Graham (2003), in which the importance of possessory control was highlighted. There are, however, two elements to this concept. The first is factual possession (or factum possessionis in the parlance of the judgments). Secondly, and equally importantly, there is a mental component, characterised by an intention to possess on the part of the squatter (animus possidendi). Although considered in the case of Pye, the duality of the possession factor was mentioned by Gibson LJ in Prudential Assurance Co Ltd v Waterloo Real Estate Inc (1999). The squatter must have ‘subjective intention to possess the land but he must also show by his outward conduct that that was his intention.’ This idea was confirmed in Pye by Lord Hope, who acknowledges that such an intention was usually evidenced by ‘acts which have taken place.’ How, then, does this apply to the present scenario?

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The first element, factual possession, can be seen to be met by the fact that the boundary fence has been knocked down by Ms Twigg, thereby removing a barrier to the plot in question, and by her removal of the debris in the new area. In Powell v MacFarlane (1977), it was held that possession throughout the period of alleges adverse possession must be exclusive to the claimant, although a single possession by or on behalf of several persons jointly is adequate. This, then, applies to Ms Twigg’s situation, and her subsequent conveyance of the property to Molly. Furthermore, that possession must, in the words of Lord Templeman in Browne v Perry (1991), be ‘peaceable and open’. This requirement has also been met by Ms Twigg and Molly, as a physical inspection of the plot by the local authority would reveal that the occupant of the house was now in factual possession of the plot of land. It is also important to note that if there was any element of permission from the local authority for Ms Twigg to use the land, this would negate any claim of adverse possession, as the whole essence of the doctrine is that the possession must be adverse to the paper owner. Even some implied licence would defeat the claim of possession. In the present case, however, it seems unlikely that such a licence exists.

The amount or ‘factum’ of physical possession required to meet the requirement of adverse possession was considered in Buckinghamshire CC v Moran (1990), in which Slade LJ said that ultimately, it depended on the claimant asserting ‘complete and exclusive physical control’ over the land in question. He had deliberated on this point in the earlier case of Powell v MacFarlane (1997) when he stated that it must be shown that ‘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.’ Will Ms Twigg’s and Molly’s actions be sufficient to establish this necessary level of factual possession? As we know, the plot is bounded on three sides by hedges and trees, and the fence boundary shared with the house has been knocked down. In Seddon v Smith (1877), it was held that enclosure is the ‘strongest possible evidence of adverse possession.’ While Ms Twigg did not actually construct an enclosure, she did remove an artificial boundary so that the garden and the plot are now bounded in their entirety. This will probably be a sufficient degree of factual possession. The sufficiency of the possessory control depends on the context, and here, it seems likely the clearance will be sufficient. In Hounslow London Borough Council v Minchinton (1997), an unsubstantial use of the land in question was considered sufficient because it was the only sensible use of the land. A similar situation applies here.

The second element of possessory control, then, is the requisite intention to possess. Ms Twigg and Molly must have shown a continuing intention to possess throughout the period of adverse possession, following Railtrack plc v Hutchinson (1998). In Powell v MacFarlane (1977), this was held to mean ‘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 … so far as is reasonably practical and so far as the processes of the law will allow.’ This intention must be both genuine, and also must be made clear to the world. This includes the paper owner (that is, the local authority as the legal title holder) if that owner was present on the land in question. Again, as was mentioned above, it seems likely that this requisite intention will be satisfied by the removal of the boundary fence, and the clearance of the debris on the plot by Ms Twigg and subsequently by Molly. The relevant intention can, and usually will, be inferred from conduct, so to some extent it can be met by the same measures as demonstrating factual possession. It seems, then, that between them, Ms Twigg and Molly have met all of the pre-requisites of making a successful claim of adverse possession of the plot of land.

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The potential for controversy caused by this doctrine was illustrated in the case of Ellis v Lambeth London Borough Council (2000), in which a squatter successfully claimed a council house worth £200,000. Indeed, in Buckinghamshire CC v Moran (1990), Nourse LJ described adverse possession as unashamedly ‘possession as of wrong’. How can this doctrine be squared with the increasing awareness of and focus on human rights, and particularly on those enshrined in the European Convention on Human Rights, which was incorporated into English law by the Human Rights Act 1998? This issue was considered in the case of JA Pye (Oxford) Ltd v Graham (2001). It was noted that the doctrine often results in the deprivation of possessions, and hence might be thought to be in breach of human rights contained in the Convention. It was considered, however, that the rule operates, ultimately, in the public interest, and is therefore justified under the Convention.

How, then, does the doctrine apply in the present circumstances? In the first scenario, the dates are significant because they pre-date the Land Registration Act 2002, which had a significant impact on the area of adverse possession (which will be considered under the second scenario). The significant dates here, then, are 1980, when Ms Twigg moved into the property, and at which time there was no question of the local authority holding the title to the plot of land at the bottom of Ms Twigg’s garden; and 1984, when Ms Twigg removed the broken down fence, and commenced clearing the ground of the bracken and rubbish that had built up there. In the strict operation of the Limitation Act 1980, then, under section 15(1), this is the date on which the right to the land accrued to her. That is to say, the clock started running at this time. Also under section 15(1) of the Act, the successor in title to Ms Twigg – that is, Molly – will also be able to claim the title. A significant factor is whether the property was registered by Ms Twigg when she purchased it. Since there was no compulsory registration in 1980, it will be assumed that the property was not registered.

As was mentioned above, under section 15(1) of the Limitation Act 1980, the legal owner of the plot of land (the local council) has a period of twelve years from the date on which Ms Twigg accrued a right to the property, even as a squatter. The date in question, then, is 1984, when Ms Twigg asserted control over the land by removing the broken down fence, and clearing the area. Furthermore, the local authority did not take any action even insofar as repairing the boundary fence in order to evict Ms Twigg. Again, the fact that the property passes from Ms Twigg to Molly in 1985 does not affect the claim of adverse possession. This is because under the Act, immediately consecutive periods of adverse possession (as Ms Twigg’s and Molly’s were) can be aggregated to contribute to the twelve year time limit. This was applied in Mount Carmel Investments Ltd v Thurlow Ltd (1988). After this period of 12 years, then, the local authority’s title will be ‘extinguished’ in favour of Molly. Molly, therefore, emerges as the legal title holder.

This, then, is the situation in the first scenario, where the dates in question pre-exist the Land Registration Act 2002. In the second scenario, however, the outcome may be different as the dates have been moved forward. The two factors that are likely to affect the claim of adverse possession in this second scenario are, firstly, that Ms Twigg did not taken action to exert her control over the land in question until 2000; and secondly, that the LRA 2002 will apply in the present circumstances. To reiterate, the significance of Ms Twigg taking down the broken fence completely and commencing to clear the plot of land is that it is at this point that she becomes a ‘squatter’, with some measure of possession of the plot of land. Again, it is from this point in time that the clock starts to run in respect of adverse possession. As several commentators have noted, it is perhaps strange that even after the passage of the LRA 2002, adverse possession should continue to play a significant role, given that the registration of title is supposed to be definitive in assessing ownership. This was also noted by Lord Bingham in the seminal case of JA Pye (Oxford) v Graham (2003). This case involved the acquisition of 25 hectares of development land, reportedly worth over £10 million, which prompted the Guardian to report on ‘Britain’s biggest ever land grab’ (9 July 2002).

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The effect of the LRA 2002 can be seen as a response to the criticisms that have increasingly been targeted at adverse possession, particularly in the case of squatters claiming rights in the land of registered proprietors. Smith describes the impact of the LRA 2002 as ‘undoubtedly one of the most fundamental changes to property law in the pat century’ (Smith, R. (2002) ‘The Role of Registration in Modern Land Law’, in Tee, L. (Ed) Land Law: Issues, Debates, Policy (London: Willan), p55). One of the key provisions of the Act, then, is that unlike under the pre-2002 doctrine, mere passage of time does not bar a registered title holder from regaining possession. This means that time is no longer in Ms Twigg’s and Molly’s favour under the LRA 2002, section 96. Furthermore, the onus is now very much on the squatter rather than the legal title holder to assert their control over the property in question. For the first time, under the LRA 2002, a positive application is required by either Ms Twigg or Molly. This application must be made to HM Land Registry to be registered as the proprietor of the plot of land in question. Under section 97 of the Act, this application can only be made in the event that the ‘squatter’ has been in adverse possession of the property for a period of ten years immediately preceding the date of the application. In this instance, then, that time frame has not been reached.

Even if Molly had been able to make an application to HM Land Registry to be registered as the proprietor of the plot, the local authority would have been able to defeat this application simply by registering objection to it. Again, this shows the change in focus ushered in by the LRA 2002 in favour of the legal owner at the expense of the squatter, who was in a better position with regard to the land on which they were squatting prior to 2002. Not only can the local authority object to the application for registration from Molly, however; so too can any legal charge holder or, if it were relevant, the proprietor of a superior leasehold estate. Under Schedule 6 of the Act, any objection by any of these parties within a period of 65 business days of the application being made will defeat the application. It should be noted that had Ms Twigg’s and Molly’s time ran successfully prior to the date at which the local authority wished to proceed with its lay-by plan in 2003, Molly would retain some protection for her rights over the land under the LRA 2002.



Human Rights Act 1998

Land Registration Act 2002

Law of Property Act 1925

Limitation Act 1980


Browne v Perry [1991] 1 WLR 1297

Buckinghamshire CC v Moran [1990] Ch 623

Ellis v Lambeth London Borough Council (1999) 32 HLR 596

Hounslow London Borough Council v Minchinton (1997) 74 P & CR 221

JA Pye (Oxford) Ltd v Graham [2000] Ch 676

Mount Carmel Investments Ltd v Thurlow Ltd [1988] 1 WLR 1078

Newington v Windeyer (1985) 3 NSWLR 555

Powell v MacFarlane (1977) 38 P & CR 452

Prudential Assurance Co Ltd v Waterloo Real Estate Inc [1999] 2 EGLR 85

Railtrack plc v Hutchinson (1998) (unreported)

Seddon v Smith (1877) 36 LT 168

Secondary sources

Davies, C.J. (2000) ‘Informal Acquisition and Loss of Rights in Land: What Justifies the Doctrines?’, 20 Legal Studies 198

Gray, K. and Gray, S.F. (2003) Land Law, 3rd Edition (London: LexisNexis)

Gray, K. and Gray, S.F. (2005) Elements of Land Law, 4th Edition (Oxford: OUP)

Rhys, O. (2002) ‘Adverse Possession, Human Rights and Judicial Heresy’, Conv 470

Smith, R. (2002) ‘The Role of Registration in Modern Land Law’, in Tee, L. (Ed) Land Law: Issues, Debates, Policy (London: Willan)

Thompson, M.P. (2002) ‘Adverse Possession: The Abolition of Heresies’, Conv 480

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