1

[ADVERSE POSSESSION]
Definition of Adverse Possession. How Adverse Possession can be established. Adverse Possession over HRA. Adverse Possession ". #hat is Adverse Possession$ Re!istration.

The definition of "adverse possession" involves legal "terms of art" - words which have a special legal meaning that may differ from their standard definitions. The elements of "adverse possession" are that possession of the real estate is actual, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period. Traditional common law provided a method for someone to obtain title to land through use. Statute allows a person to get title to land from the actual owner simply by using the land, out in the open for all to see. For example, your neighbor built a fence on your land with the intention of ta ing the property, paid property taxes, and you new about it but did nothing. !f this continued for a period of time set by state law, your neighbor may be able to claim this property as his"her own. The theory is that, by not disputing your neighbor#s use of your property through a lawsuit, you, as the actual owner have abandoned your rights to the property. The $laimant must satisfy % &three' main re(uirements before the rights are gained in the land. 1' )e must show that he had factual possession over the land. *' )e must show that he had the necessary intention to defeat in the interest of the paper owners. %' +oth factual possession and intention to possess must have been exercised over a significant length of time and"or the ,ossession is -dverse. )owever, the length of time re(uired for adverse possession in title varies - it could be as short as a few years or could run for twenty years or more. Typically p ublic entities must establish a longer period of possession than individuals. The possession must be open for all to see. The possession must be exclusive to him or her The possession must be hostile to the actual owner of the land. To gain title to land through adverse possession re(uires strict compliance with the law, but can have dramatic impact upon land ownership rights. -n encroachment could result in title to your property being transferred to an adverse possessor. .nder these circumstances, you might have to bring a lawsuit for trespass in order to prevent your neighbor from getting title to your land through adverse possession. !f you own land, it is important that you do not "sleep on your rights" since you could lose ownership of the land.
%. How Adverse Possession established$

/hether the claim for adverse possession is made in respect of unregistered land or registered land is sub0ect to old regime of the 12- 13*4 or registered land sub0ect to the new regime of the 12- *55*. The principle for establishment of adverse possession are not found in the statute, not even in the 1imitation -ct 1365 but have been developed through case laws over generations. -s 0udge made law are flexible, changeable and not always been uniform in approach. Therefore, there is no doubt that some recent decisions have been 7adversepossessor-friendly#. -lthough adverse possession cannot operate in respect of land over which public rights is exist. The )ouse of 1ords provided a frame wor within the $ase as in &A P'e (i)ited v *raha) where codified some principles of adverse possession to bring some certainty and clarity to the law. !n simple terms adverse possession may be established by demonstration the re(uired degree of exclusive physical possession of the land, coupled with an intention to possess the land to the exclusion of all others including the paper owner. !t is therefore, the con0unction of acts of possession with an intention to possess that established adverse possession. )owever, there are * &two' elements a person needs to establish for a claim of adverse possession, regardless of whether the claim is in respect of registered or unregistered land. To claim title to land by adverse possession, the claimant needs to prove the following8 .ninterrupted 9factual: possession of the land by the claimant for the re(uisite period of time. 9!ntention: on the part of the claimant to possess the land during that period.
+act,al Possession of the (and

The land must have been in the claimant#s factual possession for the re(uisite period. For factual possession, the claimant may ac(uire possession of the land by dispossessing the title owner of the land i.e. occupying land belonging to someone else or by ta ing possession of land that has been abandoned by the owner. The occupation of the land must be without the consent of the owner. The claimant at the time of the possession must not be legally entitled to occupy the land i.e. with the owner#s permission or under a legal interest such as a lease, licence or tenancy. There must be a sufficient degree of exclusive physical control over the land. /hat is sufficient will depend on the circumstances and, in particular, the nature of the land and the manner in which land of that nature is commonly used. +roadly, the person in possession must have been dealing with the land as an occupying owner might have been expected to deal with it and no one else must have done so. -n example would be the occupation of a 9field:. The claimant would need to maintain the land and regularly cultivate the land for example by mowing the grass, tending to flowers, and cutting trees. The claimant would need to regularly use the land perhaps by growing crops or gra;ing animals on it and treat the land li e their own exclusively and as the registered title owner would have done. !t may be possible, in appropriate circumstances, to ac(uire title by adverse possession of an unregistered foreshore and river bed by reason of mooring. There is no re(uirement that adverse possession should be apparent to anybody inspecting the land.
An Intention to Possess-

The re(uirement is that the -dverse ,ossessor must 7intend# to possess the land adversely to the exclusion of all others including landowner. !t needs not the permission of the real owner of the land to get possession. <raham ma es it clear that necessary intend is an intend to possess not to own and an intention to exclude the paper owner only so far as is reasonably possible. !n the other words, the $laimant is not re(uired to prove that he believed that the land was his, or he wanted to ac(uire but more simply that he meant to exclude all others if he could. That the focus is on the intentions of the claimants not the intention of the land owners. The claimant must establish that they intended to possess the land during the period of possession i.e. the claimant must intend to possess the land and not be occupying it by mista e. Such a mista e could involve uncertainty over a boundary line, resulting in them thin ing the land was theirs, for example by way of an extension of their garden encroaching on neighbouring land. This must be an intention to possess in the claimant=s own name, on their own behalf and to the exclusion of all others, so far as is reasonably practicable and so far as the processes of law will allow. - claimant could show they had possessed the land continuously to the exclusion of all others for example by fencing the land off or growing hedges around the land for their exclusive use. -n intention to possess to the exclusion of all others is not the same as an intention to own or ac(uire ownership.
Ph'sical Possession-

!ntention must be supported by ,hysical ,ossession over the land. ,hysical possession means sufficient control over the land. -dverse possession consists of actual occupation of the land with the intent to eep it solely for oneself. >erely claiming the land or paying taxes on it, without actually possessing it, is insufficient. ?ntry on the land, whether legal or not, is essential. - Trespass may commence adverse possession, but there must be more than temporary use of the property by a trespasser for adverse possession to be established. ,hysical acts must show that the possessor is exercising the dominion over the land that an average owner of similar property would exercise. @rdinary use of the propertyAfor example, planting and harvesting crops or cutting and selling timber Aindicates actual possession. !n some states acts that constitute actual possession are found in statute.
#hat acts constit,tes adverse .ossession de.end on the character and val,e of the .ro.ert' and the ,sa!es to which it can be .,t /(ord Advocate v (ord (ovat0. 1h,s2 the )ere act of shootin! was held eno,!h /Red Ho,se +ar)s (i)ited v 3atch.ole0. On the contrast2 the .la'in! of children were held to trivial to a)o,nt to adverse .ossession as held in /1ecbild v 3ha)berlain0. (i4ewise2 the !ra5in! of !oats on land was held ins,fficient as held in /6oose' v Davis0. Above all2 acts that chan!e the nat,re or .otential ,se of the land are li4el' to s,ffice as held in /1relora v N,te0.

7. Disc,ss the i).act of si!nificant of Adverse Possession over H,)an Ri!hts.

.pon analy;ing the definition of adverse possession it is clear to us that the result in the destruction of the title of the land owner. The nature of a claim in adverse possession is that it can be seen to be in contravention of a person#s right to peaceful en0oyment of their property under -rt 1, ,rotocol 1 of the ?uropean $onvention on )uman 2ights now enacted in the .nited Bingdom as a )uman 2ights -ct 1336. )owever, the court were initially reluctant to ma e a ruling whether adverse possession challenge basic human rights of the land owner.

The )uman 2ights -ct 1336 has been recently critici;ed for protecting the position of illegal occupiers of land. !n a landmar decision, in 6ea,lane Pro.erties (i)ited v Pal)er has used the -ct to strengthen the rights of landowners. Facts8 >r. ,almer occupied registered land close to )eathrow -irport. )e used the land to gra;e his and others= horses, for a continuous period of 1* years. .ntil *55%, the owners, including +eaulane ,roperties 1imited, were content to allow >r. ,almer to remain in possession of the land. )owever, in *55%, >r. ,almer applied to the 1and 2egistry to be registered with possessor title. This prompted +eaulane to commence proceedings. The Decision8 -lthough the )igh $ourt accepted that >r. ,almer had occupied the land for the necessary 1* &twelve' years period, it upheld the position ta en by +eaulane. The provisions on which >r. ,almer relied on to ac(uire possessory title by adverse possession breached -rticle 1 to the 1 ,rotocol to the ?uropean $onvention on human rights. This states that no one is to be deprived of their possessions except in the public interest and sub0ect to the conditions provided for by law and by the general principles of international law. !t was stated that the legislation which led to a registered proprietor inadvertently losing his title without proper compensation did not comply with -rticle 1. Section % of the )uman 2ights -ct 1336 provides that, so far as it is possible to do so, legislation "must be read and given effect in a way which is compatible with the $onvention rights". The approach ta en in this case is most ingenious. -fter a thorough review of the development of the law of adverse possession, the Eudge concluded that matters went awry from 1365 onwards and culminated in &. A. P'e /O8ford0 (i)ited v *raha). -ccording to ,ye an occupier needed only to prove factual possession and an intention to possess and as a result it became far easier for landowners to lose their title inadvertently through no fault of their own. !nstead, the Eudge decided that the occupier must prove that his occupation was "adverse" and the 1* year period did not start until the occupation was "inconsistent with the use or intended use" of the land by the landowner. +eaulane had no immediate plans for the land and was content to allow >r. ,almer to remain on the land. Therefore, >r. ,almer was unable to show that his use was inconsistent and his claim failed. $omment8 this case only affects registered land. @ccupiers of unregistered titles can still apply for possessory title by proving 1* years occupation and satisfying the re(uirements of the 1and 2egistration -ct *55*. +ecause the )uman 2ights -ct 1336 is not retrospective, where the occupier of registered land can prove 1* years occupation prior to * @ctober *555, +eaulane does not affect what he has to prove and he can rely on <raham. /here occupier relies on occupation between * @ctober *555 and 1% @ctober *55%, the 1and 2egistry has issued a practice note that it will re(uire evidence that the occupation is inconsistent with the use or intended use by the landowner. !f the occupier cannot prove 1* years prior to 1% @ctober *55%, then the new more onerous provisions of the 1and 2egistration -ct *55* will apply. [Difference with P9E and 6elanie for adverse .ossession]
[Short disc,ssion abo,t Adverse Possession]

The law generally presumes that the owner of the legal title possesses the land. )owever, Schedule. F, ,ara 1&1' of the 1and 2egistration -ct *55* states that after ten years of adverse possession - that is possession by someone other than the legal owner without permission - the s(uatter can apply to be registered as the legal proprietor. !f this happens, the 1and 2egistry will notify the current registered proprietor, anyone else with a registered charge and where the property is leasehold, the freehold owner. Thereafter, the registered proprietor or anyone else aforementioned must raise ob0ections to the registration or issue a counter-notice. !f such ob0ections are raised, the s(uatter will not be able to register unless he continues to remain in possession for two years after he first applied to register or he falls within the exceptions of Schedule. F ,ara. 4 of the

1and 2egistration -ct *55*. The most li ely claim under this schedule would be under ,ara. 4&C' if it concerns boundary disputes. That is, if the s(uatter and the owner are neighbors, therefore most probably own ad0acent lands, which would satisfy the first re(uirement. The second re(uirement is that the boundaries between the two properties are not determined by the rules of Section F5 of the same act. The third re(uirement of the act would be met if the estate has been registered for more than a year. !t is (uestionable however whether the final and most important re(uirement is met as it re(uires a reasonable belief by the adverse possessor that he owns the land, a belief which is held for a period of at least ten years of adverse possession. The 1and 2egistration -ct *55* holds the concept of adverse possession. Therefore, past 0udicial interpretations of this concept under older acts remain relevant. 1h,s2 in Powell v :c+arlane it was stated that adverse .ossession re;,ires a fact,al .ossession and an intention to .ossess the land to the e8cl,sion of all others2 incl,din! the owner, as far as it is reasonable. Factual possession re(uires a degree of physical control which is a matter of fact to be determined in each case. -ll the circumstances will be ta en into account therefore, such as the nature of the land and its usual purpose. For example, in &.A. Pa' v *raha) where the land in (uestion was a farm land, thus gra;ing sheep on it was suggested to be a natural use of the land. /hen considering the entire circumstances, the most important in(uiry in determining the factual possession of the land and an intention to possess the land seems to be the test of whether the owner would have done to the land anything more and above what the s(uatters did. To establish whether the test is met, the acts of the s(uatter on the land are the most practical way the 0udiciary will determine his intention to posses the land and also the degree of factual possession of it. This simple in(uiry in establishing whether the s(uatters used the land as if they were the owners seems to suffice in proving factual possession and the animus possessor re(uirement and thus be found to be in adverse possession of the land or otherwise. The s(uatter would also need to establish that he reasonably has believed for at least ten years that the land is his. /hat would constitute a reasonable belief will of course depend on the facts of the case. There seems however to be an overlap between the animus possessor principle and reasonable belief as in practice the 0udiciary might be limited to derive an intention to possess or reasonable belief as to ownership from the acts of the s(uatter as mentioned above. !f the s(uatter succeeds, the owner might be able to challenge the decision under ,rotocol 1 -rticle 1 of the ?uropean $onvention on )uman 2ights and Fundamental Freedoms. The owner might be unli ely to succeed however following the recent decision on the sub0ect by the ?uropean $ourt of )uman 2ights.
<. #hat is Adverse Possession and Re!istration$ [Adverse Possession for =nre!istered (and]

Time frame is 1* years. @n completion of 1* years of successful adverse possession, the right of the paper owner will be automatically extinguished and the adverse possessor had the better chance in that land. !n this regard, the $ourt will issue certificate in his favor as the owner of the land.
[Adverse Possession and the (aw Pro.ert' Act ">%?]

Time frame is 1* years. -fter expiry 1* years the paper owner become Trustee and the -dverse ,ossessor become +eneficiary and this process is continuing after expiry of 1* years and before registration of the property. For registered land under 1,- 13*4, on completion of successful 1* years of adverse possession, the S(uatter will become

entitled to get the land. )owever, the title owner will hold that land on Trust for the S(uatter pending registration and after completion of such registration the S(uatter will become the registered title owner.

Adverse Possession and the (and Re!istration Act %@@%

The 1and 2egistration -ct *55* came into force on 1% @ctober *55% and introduced a new legal scheme for the ac(uisition of registered land &title to land previously registered at the 1and 2egistry' by adverse possession. The 1and 2egistration -ct *55* disapplies the previous law in relation to the adverse possession of registered land so that there are now two regimes8 1. The regime applicable for registered land under the 1and 2egistration -ct *55*. This new scheme relates to registered land only. *. The previous regime, which only applies to unregistered land and registered land where the possession relied up on is for a period of at least twelve years ending before 1% @ctober *55%. 12- *55* abolished the concept of automatic -dverse ,ossession. @n completion of minimum 15 years, the adverse possessor will be entitled to ma e an application re(uesting transfer of title. @n receiving such application an automatic notice will be given to the title owner informing him of the intention of the adverse possessor. Gow the title owner has % months ac nowledgement and * years to respond to such application. The owner may response either by giving consent or by ob0ecting and"or by counter claim. !f owner ob0ect or counter claim, then the application of the adverse possessor will fail. )owever, if the owner fail to ma e response within that time period and after the * years the S(uatter will ma e a further application for getting registration in the 2egistry +oo . - land owner who, d,e to illness, failed to respond to a trespasser=s claim under the provisions contained in the 1and 2egistration -ct *55* within the re(uisite time period, and thus lost his registered title, was able to have the land re-registered in his name after it was found that the trespasser had not been in adverse possession for a period of ten years ending on the date of the application. .nder the "new" provisions contained in the 1and 2egistration -ct *55* "a person may apply to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application". &Sched F, para 1'. !f the 1and 2egistry is satisfied with the application, notice is sent to the registered proprietor who then has F4 "business days" to serve a counter-notice if he ob0ects to the registration. !f a counter-notice is served, the a..licant needs to establish one of the three !ro,nds set o,t in Sched,le A2 Para ? before he can be registered as owner &i.e. an estoppel, some other reason, or a reasonable mista e.
1he Ri!ht to A..l' for Re!istration followin! Adverse Possession. 1i)e- How lon! does a .erson need to .ossess the land$

The period of adverse possession and occupation of the registered land re(uired is 9ten years:, not the 9twelve: year period which continues to apply to unregistered land and registered land where the possession relied upon is for a period of twelve years ending before the 1and 2egistration -ct *55* came into force. This means that a person

wishing to claim adverse possession of registered land would need to continuously occupy the land for ten years or for a period of twelve years if the land is unregistered or if the period of time of occupation is ended before *55%.
!t would appear that the property has been adversely possessed for such a period i.e. 1* years. !n unregistered title an adverse possessor is permitted to add the period of adverse possession whom he dispossesses as held in #illis v Earl Howe where

:a4in! the Adverse Possession A..lication

@nce the above conditions are satisfied, the claimant will need to ma e an application to the 1and 2egistry. This application will need to be accompanied by a statutory declaration or a statement of truth &a sworn statement' outlining details of the claimant#s possession of the land for the re(uisite period of time and without the consent of the owner. - legal professional will be able to assist with this application. The evidence must show that the applicant had been in adverse possession of the registered estate for a period which, if it were to continue from the date of the applicant=s statutory declaration or statement of truth to the date of the application, would be not less than ten &or twelve' years ending on the date of the application. !t is prudent to include any additional evidence that the applicant considers necessary to support their claim such as plans of the land and boundaries, photos of the land or supporting statutory declarations of friends or neighbours that confirm that the applicant has been using the land continuously and exclusively for the re(uisite period. @nce the application has been received by the 1and 2egistry, they will usually send a surveyor to visit the land. The surveyor may ta e measurements of the landI this is merely to establish that the land applied for exists and to assist in plotting accurate boundaries to the land on the title plan. @nce the application is complete and the land is registered, the applicant will be granted 9absolute: title to the land. /here the applicant is registered as the proprietor, they will generally ta e the land free of any registered charges. !n some cases, where there is insufficient evidence, the applicant will only be granted a 9possessory: title &this is a lesser (uality title to the land.' /here the previous registered proprietor had been registered with absolute title, the applicant will also be registered with an absolute title. ?(ually, where the previous proprietor had been registered with possessory title, the applicant will be registered with possessory title. @nce the applicant is registered as the new proprietor of the land, this is a proprietary right, and as such, it can be asserted against the previous registered proprietor. !t will bind any third party to whom the previous registered proprietor ma es a registered disposition of the land, provided that the applicant was in actual occupation of the land at the time. !f so then the applicant#s unregistered interest would override the registered disposition. Special circumstances The general rule is that a person will be entitled to apply to be registered as the proprietor of a registered estate in land if the person can prove to the 1and 2egistry that they have been in adverse possession of the land for ten years ending on the date of the application. - person may still apply for registration of land via adverse possession even if evicted after ten years of adverse possession. !f a person who has already been in adverse possession for ten years is then evicted by the registered proprietor or by a person claiming under the registered proprietor, that person can still apply to be registered as the new proprietor. The person must satisfy the following8

They must ma e the application for registration within six months after the eviction. They must have been entitled to apply to be registered the day before the eviction. They must not have been evicted pursuant to a court order for possession.
3irc,)stances where no a..lication can be )ade

?ven if a person has been in adverse possession for the re(uisite ten year period, there are certain situations in which the person is not entitled to apply for registration as the new proprietor of the property8 /here the person is a defendant in proceedings involving possession of the land. /here Eudgment for possession has been given against the person. /here the registered proprietor is an enemy or detained in enemy territory. /here the registered proprietor cannot ma e decisions or communicate decisions by reason of mental disability or physical illness.
Protection a!ainst Adverse Possession

The adverse possession scheme under the 1and 2egistration -ct *55* offers more protection to registered landowners against claims for adverse possession than the previous scheme which will continue to apply to unregistered land. .nregistered land owners may apply for voluntary first registration and the 1and 2egistry has stated that one of its strategic ob0ectives is to achieve the registration of all land in ?ngland and /ales by *51*.
3hec4in! and )aintainin! acc,rac' of .ro.rietorBs na)e and address on re!ister

2egistered proprietors should chec that their current names and addresses are complete and accurate, so that any notice of an application by a claimant for adverse possession will be properly received. This is important. - failure to respond to notification of an application may lead to the registration of the claimant as the new registered proprietor of the land.
+i8in! bo,ndaries

-ny landowner who is concerned that the boundaries of their land are not clear and who is concerned that there may be a potential encroachment and claim for adverse possession, may consider applying for the boundaries to be fixed to exclude the possibility of a person establishing the adverse possession conditions and being entitled to be registered as the proprietor. !f you found this guide useful then we hope you will en0oy the other property guides in our 1aw 1ibrary.
#h' do we allow adverse .ossession at all$

!t stri es many people as un0ust, that the law allows people to ta e ownership of a valuable and expensive land by =s(uatting=. )owever, land is a limited resource for any country, and the view ta en by ?nglish law is that its owners must use it, or lose it.

-dverse possession does not always arise because of the deliberate actions of s(uatters. !n some cases it even arises by mista e. For example, it is not unusual for the boundaries between properties to be unclear, and if a person has built an extension to his house that has one wall on a contested boundary, and his neighbor has not complained for over a time, it hardly seems far to ma e him noc it down. /hile people do lose their property by s(uatters, the limitation period of 1* years should be long enough for the owner to ta e some ind of action against them. The law will ta e a dim view of a claim that property really does need to stand idle for 1* years. >oreover, if we did not allow adverse possessors eventually to register themselves as the owners of the and they occupy, this would seriously inconvenience the owners of unregistered land who have mislaid their title deeds. Such people could never sell their property. ,eople sometimes claim that adverse possession represents a =loophole= in the law. !t doesn=t the legislature has gone to a lot of trouble to ensure that adverse possession can operate. !t would have been a trivial matter for ,arliament simply to repeal the relevant sections of the 1imitation -ct 1365 that apply to land claims, and not replace them with anything else. The fact that this has not happened and instead there are some complicated legislative provisions aimed at ensuring that adverse possession can occur, should ma e it clear how important it is seen as being for the general good of society. @n the other hand, however, there are some cases where the dispossessed landowner has been largely blameless, and is greatly inconvenienced by the adverse possession. ,articularly affected are local authorities, which can hardly be expected to police every piece of land they own, twenty-four hours a day. !n addition, a person who allows another to live in his property without paying rent has traditionally been in a precarious position, as non-payment of rent can amount to adverse possession &see below'. This is a very poor reward for such generosity. !n preparing the draft of the 12- *55*, the law commission responded to criticism that it was too easy to obtain land by adverse possession. !t was unwilling to increase the difficulty of obtaining adverse possession in 1* years for land that was genuinely vacant. -t the same time, it recogni;ed that it had to be made more difficult to ta e over land whose owners still had and interest in it, and planned to develop it in the future. The compromise that was reached was to eep the limitation period of 1* years, but compel the s(uatter to serve notice on the registered owner, as we shall see. - registered owner who fails to respond to a properly-served notice that he is about to have his property ta en away, can=t really complain when it happens.
Establishin! adverse .ossession

To establish adverse possession, the s(uatter must show that he did, as a matter of fact, dispossess the previous owner, and he had the re(uisite animus possidendi, and his occupation was adverse to the previous owner, and he has been in possession for the re(uired time period, and &since *55% for registered land' he has notified the 2egistrar of his possession

Dis.ossession of the .revio,s owner

Dispossession need not be forcible -- the land could be, and often is, unoccupied. Factual possession could be established by, for example, living in a house on the land,

15

cultivating the land, or fencing it. The important point is that the s(uatter is dealing with the land as if he were the owner, and no-one else is doing so.
BAni),s .ossidendiB2 or Bintention to .ossessB

!n addition to factual possession, the s(uatter must provide evidence that he had animus possidendi, an =intention to possess=. -lthough intention is a sub0ective matter, the court will expect to see evidence of conduct on the part of the s(uatter that demonstrates the re(uisite intention. )e must show that he intended to ta e the land for himself, not to share it with the previous owner, or to use it with the previous owner=s consent. -nimus possidendi might be inferred if a person ta es possession of a house and changes the loc s, or if a person moves a fence, or puts a loc on a gate. )owever, intention to possess does not e(uate to =intention to achieve legal title= or even =intention to possess indefinitely=. -dverse possession can be established even where the s(uatter nows that the land is going to be used, and plans only to occupy it until it is &+uc inghamshire$$ v >oran'. Similarly, if the s(uatter believes he has permission to occupy the land, but in fact has not, he still has an intention to possess &1odge v /a efield$$'. The fact that the s(uatter would be willing to pay rent if as ed for it is not fatal to his claim of adverse possession, either &,ye v <raham'.
Possession ),st be BadverseB

The s(uatter must also show that his possession was =adverse=, a term hard to define. !n general, =adverse= is ta en to mean =without permission=. !n general, a tenant cannot establish adverse possession against his landlord, as he lives in the property by express permission. )owever, if the tenant ceases to pay rent, his possession does become adverse, even if the landlord agrees to this. $ases where the owner of land eeps it vacant for some future purpose have always caused problems. For some time there was a 0udicial view that if the adverse possessor new of the future intentions of the owner, and his use of the land was not inconsistent with those intentions, then he had implied license to occupy the land. This is now expressly re0ected by the 1imitation -ct, which provides that an implied licens cannot be inferred only because the adverse possessor=s actions do not conflict with the owner=s future plans. >oreover, as we now from +uc inghamshire v >oran, an intention to possess is not the same as an intention to possess indefinitely.
1he stat,tor' ti)e .eriod

For both unregistered and registered land of pre -ct *55*, the statutory time period is 1* years. /e will discuss later when this time period starts to run. For the occupier, he must show the re(uisite time of possession, but there are a number of factors that may assist him. First, the time period can be begun by one person, and completed by another. This is a strange technicality, which will be discussed in more detail later. Second, the time need not be continuous. !n particular, if a s(uatter is forcibly evicted from the premises, without a court order, he is considered to remain in occupation. This position is unchanged by the *55* -ct. 2egistration of adverse possession under the *55* -ct

11

!f the land at issue is registered, the new provisions apply. -fter at least ten years in occupation, the s(uatter may apply to the registrar to be registered as proprietor. The registrar notifies the current registered proprietor, and certain other parties with an interest in the land &mortgage lenders, for example'. These people then have two years to ob0ect to the registration. !f any do ob0ect, then the 2egistrar appoints an ad0udicator to settle the matter. The -ct sets out three grounds on which the ad0udicator should favour the s(uatter8

,roprietary estoppel arises in his favour The s(uatter can show that he does have a right to possession of the land, despite the registration of a different properietor The s(uatter has made a reasonable mista e about his boundary

!t is anticipated that adverse possession cases be settled by the ad0udicator without the need for court action. This is why proprietary estoppel is listed as a reason to favour the s(uatter. !f proprietary estoppel genuinely arises, then the s(uatter would be able to defend his claim in a court action anyway, but the use of the new procedure is thought to be cheaper for all parties. $ircumstances in which the s(uatter might have a right of possession that is unregistered include, for example, cases where a person has been left a property in another person=s will, but the personal representative of the deceased refuses to ma e the transfer re(uired. Jou should notice that the minimum limitation period remains 1* years, provided that the s(uatter registers his interest immediately after 15 years= occupation. !f the s(uatter registers his occupation and two years elapse with no ob0ection from the registered owner, then the s(uatter is registered as propietor without further formalities. The fact that adverse possession is now much harder to establish against registered land is a good reason for people to register their land voluntarily. !t is also a reason why the 12- *55* ma es it possible for the $rown to register its land, as adverse possession is possible against the $rown in certain circumstances.
Defendin! a!ainst adverse .ossession

The usual defense raised against a claim of adverse possession is that the limitation period had not started to run at the time the s(uatter claimed, and this he has not been in occupation long enough to (ualify. !n general, under the 1imitation -ct &1365', limitation periods run from the time that the person see ing to ta e action found out that he had a cause of action, or ought reasonably have been able to find out. For adverse possession, this means that time starts to run when the s(uatter ta es possession. -s a general principle of the 1imitation -ct &1365', if a cause of action is fraudulently concealed, time only starts to run when the fraud is, or reasonably could have been, discovered. !n the case of adverse possession, it is difficult to conceal the fact of occupation of the land, and the dispossessed owner will have some difficulty relying on this provision. !f the dispossessed owner is a minor, or mentally incapable, extensions of the limitation period are allowed. The rules are complex, so ! won=t describe them here &see s.*6 of the 1365 -ct'. /here the dispossessed owner is in possession, the limitation period is 1* yearsI but what about a person who has a vested interest !n 2emainderK Should his rights be extinguished because the owner in occupation has been too careless to protect his own rightsK The 1imitation -ct gives a further six-year period to persons entitled to a future interest, and time starts to run from the moment that the interest comes into possession. Suppose, for example, that person - leaves his

1*

house to his wife + for life, then to his son $. + abandons the house and emigrates to a far corner of the ?arth, losing all interest in it. S(uatter D then moves in. $ cannot act against D, because he does not have an interest in possession. )e can act only when + dies, which might some time be off. This means that s(uatter D could displace the original owner, and then be displaced himself many years later when that owner dies. The sale of an estate in land does not automatically destroy any adverse possession rights held by s(uatters, so a purchaser could find himself in the unfortunate position of buying property from a person who has lost his title. The purchaser therefore gains nothing of value, and must see redress against the vendor. .nder the 13*4 legislation, whatever rights the s(uatter had were overriding so they would ta e priority over the purchaser, whether or not the purchaser had notice of them. .nder the *55* -ct, a s(uatter will in future only be able to enforce against a purchaser if the purchaser has notice of the s(uatter=s rights &this is one of the few places where =notice= continues to be significant in registered conveyancing -- see s 11&C'&c''. )owever, for the time being s(uatter=s rights ac(uired before *55% continue to override.
#hat is adverse .ossession$

!n certain circumstances a person can ac(uire land belonging to someone else by "s(uatting" on it for a defined period. Dealing first with unregistered land, to ac(uire title by adverse possession the s(uatter must show he has had exclusive possession without the consent of the true owner for 1* years. The best evidence for this is that the land has been fenced off so that only the s(uatter has access to it. )ence it is very difficult to ac(uire title to paths and roadways, which many people could use. Similarly, it isn=t grounds for a claim if someone par s their car occasionally on your land.
How is it different for re!istered land$

The 1and 2egistration -ct *55* has reduced the re(uired period to 15 years &the old rules still apply if a person had adverse possession for more than 1* years before the act came into force on @ct 1% *55%'. +ut it has made it much more difficult to get title this way. The application will be automatically re0ected unless the s(uatter can ma e out one of three grounds. !f the registered proprietor of the land has led the s(uatter to believe that the s(uatter did indeed own it and if the s(uatter has acted in some way to his own detriment on the basis of this then the registered proprietor cannot change his mind and get the land bac . -lternatively, the s(uatter may be entitled to be registered as proprietor for some other reasonI perhaps he has a contract to buy it. 1astly, the s(uatter may have been in adverse possession of land ad0acent to their own under the mista en but reasonable belief it belonged to them. This only applies if the boundary has not been determined by the 1and 2egistry &and it is very rare for it to determine boundaries' and where the land has been registered for more than a year.
#hat if the s;,atter loses the clai)$

The true owner must force to leave him promptly. !f the s(uatter can show he has occupied the land for a further two years after the re0ection of his original application, he will be entitled to be registered as owner.

B1he (and Re!istration Act %@@% )a4es a .oor atte).t at refor)in! the law of adverse .ossessionB C Disc,ss this state)ent.

1%

=The 1and 2egistration -ct *55* ma es a poor attempt at reforming the law of adverse possession=. @ne often hears the maxim =possession is nine tenths of the law=, although strictly spea ing this is incorrectI there is some truth in relation to the law of =adverse possession=. This is perhaps unfair in modern day land law where there is a reliance on registration. Thus reform has been sought, materialising as the =1and 2egistration -ct *55*=&12- *55*'. The <overnment proclaim that the =12- *55*= provides for a =radical change= to the law of adverse possession in registered land. )owever assumes a =no change= criti(ue regarding unregistered land. Therefore with the lac of effect on unregistered land, we are posed with the (uestion, =does the -ct go far enough=. @r are we simply left in agreement with the above statement that the new -ct =ma es a poor attempt at reforming the law of adverse possession= failing to address the widespread grievance that the law on adverse possession =does not accord with 0ustice=1 !t is proposed that the new =*55* -ct= will come into force on the 1%th @ctober this year, therefore the existing law of adverse possession remains enforceable. The current law is archaic and has been sub0ect to much criticism, the 1aw $ommission have proclaimed that, =the main wea ness of the present law is that the principles which determine whether a registered proprietor will lose his or her title by adverse possession were developed by a possession - based system of title and not one founded on registration=* The current law on adverse possession is governed by the =1and 2egistration -ct 13*4= &12- 13*4' and the =1imitation -ct 1365=&1-' and will remain unchanged in relation to unregistered land after the new -ct is implemented. -t present =adverse possession= is based on the principle that if the legal owner fails within twelve years to initiate eviction proceedings against a s(uatter or trespasser on his land the legal owner will loose his title &s14 &1' of the =1- 1365'. This possession must be continuous for twelve years, however cumulative periods of adverse possession will suffice providing there is no brea in the chain of possession &s14 &F'.%' ?nsuing this, the right of action commences when two elements are present. Firstly the paper owner must have given up possession of the land and secondly the s(uatter must have ta en possession of the land. This possession must be =factual= and the s(uatter must have the =necessary intention to possess= the land. =Factual possession signifies an appropriate degree of physical control. !t must be a single and exclusive possession, though there can be a single possession exercised by or on behalf of several persons 0ointly...broadly, ! thin what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land as an occupying owner might have been expected to deal with it and that no-one else has done so.=C Thus the s(uatter ta es physical possession of the land, excluding all others including the paper owner. There is an additional re(uirement that possession must be adverse to the paper title owner, thus it cannot be en0oyed by virtue of a lease, licence or consent from the paper title owner. =,ossession is never adverse...if it is en0oyed by lawful title.=4 Furthermore the factual possession must not be hostile and should not be concealed. =S%* of the =1- 1365= provides that any actions of the possessor which were fraudulent or deliberately concealed from the owner subse(uently means that the limitation period does not initiate until the owner discovered or at least should have discovered, the concealment ensuring that the paper title owner is given the chance to challenge the possession. Failure by the s(uatter to ma e, =perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can=F will ensure that he will be unable to sta e his claim in adverse possession. >oreover s(uatters must show that they have complete physical control over the property in =+uc s $$ v >oran=H the claimant had completely enclosed an area belonging to the $ouncil with fences and hedges and incorporated it as part of his garden by adding a loc and gate. This enclosure was sufficient enough to constitute possession. -s previously mentioned the s(uatter must also have the necessary intention to possess the land in (uestion, =the critical factor in adverse possession is not

1C

an intention to own but an intention to possess=. =/hat is crucial is to understand that, without the re(uisite intention, in law there can be no possession. ...There has always, both in 2oman law and in common law, been a re(uirement to show an intention to possess in addition to ob0ective acts of physical possession. Such intention may be, and fre(uently is, deduced from the physical acts themselves=6 This re(uires that the s(uatter intends to treat the land as his own, this does not include an intention to own, =an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title=.3 /here the re(uisite intention of the true owner for future use of the land is nown the issue of whether a s(uatter can subse(uently claim sufficient intention with this nowledge has been raised. This was addressed in =1eigh v Eac =,15 here the claimant stored scrap metal on land which he new was intended to be used in the future by the owners for construction of a street. !t was found that because of the claimant=s prior nowledge of the owners future intentions meant that he did not intend to act as a trespasser. )owever despite this decision the case of =+uc ingham $$ v >oran=,11 gave a somewhat different result, here the defendant incorporated land owned by the $ouncil into his. #hen ,.on !ettin! the obDection2 the adverse .ossessor hold the re!istered title to the land ,nder Re!istration Act2 %@@%$ The exceptional cases are listed in Sched,le A2 Para!ra.h ? of the (RA %@@% those where first, it would be unconscionable for the current proprietor to dispossess the adverse possessor because of an estoppel and the circumstances are that the adverse possessor ought to be registered, secondly, where the adverse possessor is 7for some other reason# and thirdly, where there is a boundary dispute concerning ad0oining land and for at least 15 years the applicant reasonable believed the disputed land is to be his. ?stoppel8 it suggest that as well as establishing adverse possession for at least ten years, the applicant must also show that he has detrimentally relied on some assurance by the registered proprietor. @ther 2easons8 where the S(atter is entitled to the land under the /!11 or ma e contact and paid the purchase price or other similar documents but the same was not registered and"or properly executed. The boundary exception8 the third exception reflects the reality of neighborhood living where the extra boundary line between ad0oining properties may be uncertain or have been altered over time without any formal transfer. !t preserves a valuable role in adverse possession where there is a boundary disputes. /here physical features suggest that the boundary is in one place but according to the title plan it is in another or where the dividing walls or fences on estate were erected in the wrong place and not in accordance with the plans in the title deeds. Refor)s C (RA %@@% 1. adverse possession of itself, for however long, does not bar the owner#s title to a registered estateI &12- s.3F' *. a s(uatter is entitled to apply to be registered as proprietor after 15 yearsK adverse possession, and the registered proprietor, any registered chargee, and certain other persons interested in the land will be notified of the applicationI &12- Schedule F, ,ara.1,*'

14

%. if the application is not opposed by any of those notified the s(uatter will be registered as proprietor of the landI &12- Schedule F ,ara. C' C. if any of those notified oppose the application it will be refused, unless the adverse possessor can bring him or herself within one of three limited exceptionsI &12- Schedule F ,aras 1,4'. 4. if the application for registration is refused but the s(uatter remains in adverse possession for a further two years, he or she will be entitled to apply once again to be registered and will this time be registered as proprietor whether or not the registered proprietor ob0ectsI &12- Schedule F ,aras F,H' F. where the registered proprietor brings proceedings to recover possession from a s(uatter, action will succeed unless the s(uatter can establish % &three' exceptions. E8ce.tions$
1. under the principles of proprietary estoppel, it would be unconscionable for the registered proprietor to ob0ect to the s(uatter#s application to be registeredI *. where the s(uatter was otherwise entitled to the landI or %. where the s(uatter is the owner of ad0acent property and has been in adverse possession of the land in (uestion under the mista en but reasonable belief that he or she was the owner of it. &12- schedule F ,ara. 4'

E,estion- what wo,ld be the then when the Adverse Possessor !ot re!istration of the .ro.ert' fro) Re!istr' 6oo4 where the .ro.ert' is s,bDect to lease 2 what the be the .rotection of freeholder and what wo,ld be the differences for re!istered and ,nre!istered land$
+ind o,tRe!istered (and F (andowner Re!istered (and F Adverse Possessor =nre!istered (and F (and Owner =nre!istered (and F Adverse Possessor

Answer- the point arose in [S.ectr,) Invest)ent 3o. v Hol)es] where the plaintiff company ac(uired the registered freehold title of a house in 134H. The house was already demised on a long lease. The leaseholder had sublet to the defendant, who, by continuous non-payment of rent, had, by 13F%, ac(uired a prescriptive title against her. !n 13F6 the defendant sought registration as proprietor of the leasehold interest and, in the absence of any response from the leaseholder=s solicitors to the notice that they received, the 1and 2egistry closed the registration of the latter=s title, and opened a new registration of the defendant=s title, describing the property as leasehold land held on the terms of the 135* lease. Seven years later, in 13H4, the leaseholder sought to defeat the defendant=s title by executing a deed of surrender to the freeholder. !t was held that as it was admitted to be, failed the s(uatter claims to have ac(uired a title to =a registered

1F

estate in the land= &i.e. the leasehold interest' and applies to be registered as a proprietor =thereof=. Therefore under Se H4&*', references to the s(uatter having ac(uired title to a registered estate must include the rights which under the 1imitation -ct 13%3 the s(uatter ac(uires in relation to leasehold interests. Section H4&*' then refers to the s(uatter applying to be registered as proprietor =thereof=. This word can, in my 0udgment, only refer bac to the registered estate in the land against which the s(uatter has ac(uired title under the -ct of 13%3, i.e. the leasehold interest. The clear words of the -ct therefore seem to re(uire that, once the 1* years have run, the s(uatter is entitled to be registered as proprietor of the lease itself, and is bound to be so registered if he applies for registration. !t follows that in my 0udgment the defendant is correctly registered as proprietor of the lease itself in accordance with the clear re(uirements of section H4. !f that is right, L Mthe leaseholderN cannot be entitled to rectification of the register as against the defendant, and she can therefore never get into a position in which she is competent to surrender the lease to the plaintiff." in that case the adverse .ossessor ac;,ired title to a re!istered lease and beca)e its re!istered .ro.rietor. The dispossessed tenant intended to surrender the lease to the freeholder. The legal owner then applied to remove the adverse possessor#s title from the registrar. )is reasoning was based on the decision as laid down in [+airweather v St. :ar'lebone Pro.ert' 3o (i)ited] which was an unregistered land case. The adverse possessor in that case had ac(uired a possessory title after the 1* years period against the tenant. -fter that the tenant surrendered the lease to the legal owner and he argued that the lease was then merged. The )ouse of 1ords held that the owner was entitled to evict the adverse possessor immediately. 1he Ho,se of (ords held that a s,rrender of lease b' the tenants !ives the land lord the ri!ht to i))ediate .ossession2 thereb' acceleratin! his ri!ht of action a!ainst the Adverse Possessor. That was because the land was unregistered, no (uestion of registration arose. +ut the freeholders in Spectrum !nvestment $o did not meet with the same success. The $ourt held that when the -dverse ,ossessors title was re!istered, the dispossessed tenant#s title to the lease was transferred to the adverse possessor and subse(uently, the tenant has no lease to surrender. The process of merge of the lease could not ta e place and therefore the freeholder was not entitled to remove the adverse possessor from the registrar. E,estion- what wo,ld be the effect of land owner if he !rants lease and so)eone adversel' .ossessed the land fro) the lessee$ +ind =nre!istered (and F (andowner Re!istered (and F Adverse .ossessor. Answer- The title of the land owner is no barred unless the adverse possession continues for 1* years after the expiration of the lease &1imitation -ct 1365, Schedule 1, ,ara C' which has not yet occurred and"or occurred. >oreover, until the lease period is not comes to an end, the land owner is not entitled to bring an action for possession against -dverse ,ossessor. This is because the statute bars the tenant#s title only as regards the adverse possessor, the tenant#s lease continues. !f, therefore, the owners want to gain possession of the estate, he must see to terminate the lease. !f the land owner is unable to use the method to terminate the lease, he will be unable to gain possession of the land from adverse possessor. The above mentioned scene will be the then when the land is ,nre!istered but if the land is re!istered then the following scenario may appear8

1H

The period of 1imitation under the 1imitation -ct 1365, Sec. 14 does not run against the person in respect of an estate in land, the title to which is registered MSec 3F&1' of 12- *55*N. -t the end of ten 'ears adverse possession, the possessor may apply to register the property as a proprietor. The registrar must give notice of such application to the land owner. !f the landowner ma es counter claim, then the application of the adverse possessor#s must satisfy the conditions as set out in M,ara 4N. -ssuming that none of the conditions of the adverse possessors is satisfied, and then the application will be re0ected. !f the possessor remains in adverse possession, she will be entitled to ma e a further application two years after such re0ection M,ara F&1'N. !f the adverse possessor remains in possession for a further two years after the re0ection of his initial application, he will be entitled to be registered as proprietor on ma ing such further application. Then the burden is for adverse possessor for ma ing registration. +ut if the owner brings an action for possession against adverse possessor before his application for registration. The possessor can not ma e such application during the proceedings. The -dverse ,ossessor can establish an initial period of ten years for adverse possession in order to ma e first application. -dverse ,ossessor#s ten years period against land owner runs only from 1336, he will not be able to ma e first application until *515. !f he would apply before that period, his application would probably be re0ected. E,estion- 3an S;,atter .ass his adverse .ossession to an'one2 i.e. can S;,atter sell the land as adversel' .ossessed$ Answer- !f a S(uatter who was not barred by the true owner, sells the land then he can give the purchaser a right to the land as his own. !n that regard, the person who is ta ing the S(uatter#s interest can add the S(uatter#s period of possession to his own. The rules also apply if the S(uatter ma e gift to the land.
[#RI1IN* :E1HOD IN 1HE EGA:INA1ION] -dverse ,ossession, with which the (uestion is concerned, means possession inconsistent with the title of the true owner. O will be unable to resist J#s action for possession unless he can establish that he has ac(uired a title by way of adverse possession and"or J#s right of possession has been barred by 1imitation -ct 1365. The period of limitation can not run unless and until J was either dispossessed or discontinued possession of the plot. )ere it will be necessary to consider the following main issues. a' when did adverse possession by x commencedK, b' successive periods of adverse possession i.e. that O is first then y, c' the significant of communication of the owner with the adverse possessor, d' what action can adverse possessor should ta e against true owner. ?ach of these issues will be considered in turn. /hat acts constitutes adverse possession depend on the character and value of the property and the usages to which it can be put &1ord -dvocate v 1ord 1ovat'. Thus, the mere act of shooting on land was held enough &2ed )ouse Farms 1imited v $atchpole'. @n the contrast, the playing of children was held to trivial to amount to

16 adverse possession as held in &Tecbild v $hamberlain'. . -bove all, acts that change the nature or potential use of the land are li ely to suffice as held in &Trelora v Gute'. !f some other persons enters the land and uses it for some seasonal purpose li e growing vegetables was not amount to adverse possession as held in /allis#s $ayton +ay )oliday $amp. Sec 14 of the 1imitation -ct 1365 sets a 1* years period for the recovery of the land. !t provides that 9Go action shall be brought to recover land after the expiration of 1* years from the date on which the right of action accrued:. Thus, the period of adverse possession was begun by O in 1335 and was continued till *55*. So that owner#s title was barred in *55*. Twelve years from those dates ta es us up to 13PP, in this day twelve year period has already been elapsed. Finally, it is important to note the raison d#etre of the 1imitation -ct 1365. !t is that those who go to sleep upon their claims should not be helped by the courts in recovering their property and that there should be an end to litigation. !t would appear that the property has been adversely possessed for such a period i.e. 1% years. !n unregistered title an adverse possessor is permitted to add the period of adverse possession whom he dispossesses. )is possession was merely ten years. The owner would be able to bring an action for possession against adverse possessor. The owner is not entitled to bring an action for possession against D.

!n 1335 >r. O purchased the land which is registered land. The registered title include from PPPPPPP to PPPPPPPP. She went into the side land which beyond her registered land and began to treat as her own. O can ma e an application to the 1and registry for title to the land on the basis of his adverse possession.