Thursday, 25 April 2013

Requirements of Adverse Possession

What is adverse possession
  1. Adverse possession can be explained as the process of possession that changes the ownership of land from the paper owner to the possessor.
  2. It arises out of the s.15 (1) Limitation Act 1980. 
  3. What is needed to establish adverse possession?
  • Factual Possession - where there is strong physical evidence that somebody is in possession of the land e.g. that may include fencing and locking the land. 
  • In Powell v McFarlane, Slade J provides an in-depth explanation on what factual possession means.
  • This explanation was accepted by the House of Lords in Pye v Graham, here the judges reinforced the need for appropriate degree of physical control to count as factual possession.
  • Contrast this to Tecblid v Chamberlin Ltd where children playing on the land and tethering of ponies was not sufficient. 
  • Important to ask is the land being possessed or merely used for profits as in Powell v McFarlane. 
  • Animus Possidendi - an intention to possess . How do we prove this?
    • The actions by which the owner has made the intention clear, Buckinghamshire CC v Morgan 1990 and Powell v McFarlane 1977
    • Affirmation that outward conduct is demonstration of intent, Prudential Assurance Co Ltd v Waterloo Real Estate Inc [1999]
    • Land must be used for the squatter’s advantage and locking/blocking access to land is an indefinite evidence for the intention to possess and factual possess, Buckinghamshire CC  v Morgan 1990, Pye v Graham 2003 and Powell v McFarlane 1977
    • Key is intention to possess not acquire, in Lodge v Wakefield 1995, the mistaken belief that you own the land combined with factual possession was sufficient to prove that adverse possession had taken place. 
    • Furthermore, in Pye v Graham it is made clear that if the possessor offers to pay rent or agrees (so long as he actually hasn’t given it), is  fine for adverse possession because it is an intention to possess not acquire.
    • Often, intention is intertwined with factual possession but in Pye v Graham, the distinction is made clear between the two. An example is provided; X is in occupation of a locked house which he has agreed to look after for a friend, whilst friend is away. He may have factual possession but the intention which is very much linked to the third requirement is missing and thus cannot be adverse possession. 
  • (Possession must be adverse as with consent that would not be adverse possession)
  1. If however, the paper owner forced you off the land, or decides to enter into a licensing agreement then adverse possession is no longer possible. This is because in the first case the squatter fails to assert a better claim and in the second the possession will no longer be adverse.
  2. It was actually the case of Leigh v Jack which was held in Beaulane Properties Ltd v Palmer  that the old doctrine stated the use must be different to the paper owner’s. This was of course rejected in Pye v Graham where the notion of an implied license was too.
  3. The justification for adverse possession lied in the Lockean principle that if you mix your labour with resources then the end product should become yours.
  4. It is important to note that, even derivative title at some point came from an original source which was ‘possession’ so adverse possessors aren’t some distasteful sect of society we should shun, so some argue. Lord Brown-Wilkinson, makes this point clear in Pye v Graham 2002. He says that much confusion would be avoided if we didn’t refer to adverse possessors as those who behave badly - it is just possession and the process of possession creating title. It is similar to a licensee where temporary possession is given not future rights. 
  5. From a Human Rights prospectus it was found that adverse possession does not infringe human rights in Pye v Graham, as adverse possession was justified control of use of land than a deprivation  of possession and was within margin of appreciation. Another point is that under Article 8 of ECHR sometimes arguments can be made that English law breaches the right to respect for home and family by not allowing adverse possession.
  6. In registered land, any rights in the course of being acquired by adverse possession count as overriding interests which means that any third party purchaser say, is also bound by the rights of the possessor.

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