Chapter 6 Answers to end of chapter questions

Self-test questions

Abu is aware of a strip of land adjoining the end of his garden. It appears to be unused. What should Abu do if he wishes to take adverse possession of the land? What must he show to prove adverse possession?

Answer: Abu has to show discontinuance of possession by or dispossession of the paper owner, plus adverse possession on his own part: Powell v MacFarlane (1979) 38 P. & C.R. 452.

Discontinuance is difficult to show, as even small acts of continuing possession will be enough to negate discontinuance. Most cases now rely upon dispossession. If Abu goes into ordinary possession of the land, he will dispossess the paper owner – Pye v Graham [2002] UKHL 30.

In addition, Abu must show that he is in adverse possession of the land. This has three elements: firstly, Abu must show the required degree of exclusive physical possession, that is, occupation or control of the land. Abu can show physical possession by enclosing the land, making it part of his land etc. – see Buckinghamshire County Council v Moran [1990] Ch. 623.

Secondly, Abu must also show an intention to possess the land to the exclusion of all others, including the paper owner - ‘animus possidendi’. In Powell v MacFarlane at p.471, Slade J said:

‘animus possidendi involves 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 if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.’

Intention is proved primarily by what the squatter does on the land, rather than by what they say their intentions were. Again, the Moran case is likely to be most useful here – fencing, treating land as his own, making the only access to land through his land.

Abu must also show absence of consent by the paper owner i.e. the paper owner did not give permission for the squatter to be on the land; he has no consent from owner, so this is not an issue here.

See 6.5

Abu receives a letter from the local council regarding the strip of land. The council claims to be the owner of the land, which it is planning to incorporate into a park in the future. What will be the effect of the letter if the council:

(a) threatens to bring possession proceedings against Abu?
(b) states that Abu may use the land by licence?

Answer: Sending a letter raises the question of ‘stopping the clock’.

(a) If the letter threatens to bring possession proceedings, it will probably have no effect. See Buckinghamshire County Council v Moran [1990] Ch. 623. There was a different result in Wallis’s Cayton Bay Holiday Camp v Shell-Mex [1975] Q.B. 94, but this was an old implied licence case, so is probably not good law. See 6.8
(b) This raises the point in BP Properties v Buckler [1987] 2 EGLR 168. In that case, a unilateral grant of a licence was effective when the squatter did not write back. This sits oddly with fact that an acknowledgement of title must be in writing to be effective - LA 1980 s.29 – 30, and therefore this case has been criticized. However, the Judicial Committee of the Privy Council approved the case in Smith v. Molyneaux [2016] UKPC 35. Therefore, Abu should write back refusing the offer of a licence if he wishes to remain in adverse possession. This is likely, however, to prompt the council to evict him. See 6.7.5 and 6.7.6.

If Abu were a tenant of his land, to whom would the strip of land belong if he were to be successful in proving adverse possession?

Answer: It may belong to his landlord. See London Borough of Tower Hamlets v Barrett [2005] EWCA Civ 923, in which it was held that there was a presumption that the tenant adversely possessed land on behalf of the landlord. The land here is adjacent to the demised (leased) land, and enjoyed with it, so the presumption would apply. See 6.5.2.3

If Abu were to be able to show a sufficient degree of adverse possession, how likely would he be to become the owner of the strip of land if his 12 years’ adverse possession ended in November 2003 and the land was:

(a) unregistered?
(b) registered?

Answer: It is very important that you understand which legislation is relevant to this question. Please look at Table 6.1 in order to understand this answer.

(a) If this is unregistered land, then paper owner’s title is extinguished after 12 years. Abu would become the owner.
(b) If the land is registered, the case falls under LRA 2002. Abu must apply for registration. He does not fall within the three exceptions in paragraph 5 of schedule 6. Therefore, the council will probably object, and they have two years to evict Abu.

Suppose the council took no action while Abu lived in the house, but the strip of land was incorporated into the garden. Abu sold the house to Ben in 2006, not mentioning anything about the strip. In 2011, the council tried to evict Ben from the land. Ben sincerely believed that the land was part of the garden until the council wrote to him. Did Ben have any defence to possession proceedings?

Answer: Unless there was 12 years adverse possession before 13th October 2003, Ben’s case will fall under LRA 2002. This will entitle the council to possession unless Ben can make out one of the exceptions in para 5 sched.6. At first sight, Ben may have a defence under para 5(4) schedule 6 LRA 2002. He occupies adjacent land and has a genuine though mistaken belief that land is his. However, the paragraph states that this belief must have existed for at least the last 10 years. Although Ben has a genuine belief that the strip of land is his, Abu did not, so Ben would have had no defence to possession proceedings. See 6.9.2.2.

Examination questions

Melody and Jasper met as students at the University of Woolwich in 2002. They were both short of funds, so they moved into an abandoned chalet sited behind a council block of flats. It had been left there after some building work, and was intended as a shelter for workmen, though it had a small kitchen and bathroom. The chalet was fairly basic and run down, but Melody and Jasper repaired it, insulated it and had mains services connected. They have continued to live in it as they are struggling musicians who cannot afford a better home.

Last week, a representative of the Woolwich Council appeared and told them that the land the chalet stands on is registered in their name, and that the chalet belongs to them. They have told Melody and Jasper that they are committing a criminal offence, and that they must leave immediately.

Advise Melody and Jasper.

Answer: Since Melody and Jasper moved into the chalet (which is registered land) in 2002, they would have to make an application to the Land Registry to be registered as proprietor on the grounds of adverse possession under LRA 2002. However, they have to rely upon the last 10 years of adverse possession in making the application, and on 1st September 2012, squatting in a residential building became a criminal offence under LASPOA 2012 s.144. It is unclear whether the chalet constitutes a residential building, which is defined in LASPOA 2012 s.144(3) as including a temporary structure, and being ‘designed or adapted, before the time of entry, as a place to live’.

The case of Best v Chief Land Registrar [2014] EWHC 1370 (Admin) held that a squatter could make an application for adverse possession based on trespassing in a building after 1 September 2012, despite it being a criminal offence. Melody and Jasper can make an application, though it might result in prosecution.

However, they do not fall within the three exceptions in paragraph 5 of schedule 6. Therefore, the council will probably object to their registration, and will have two years to evict Melody and Jasper. See 6.6.

Is it still necessary for the law on adverse possession to apply to registered land?

Answer: This question requires us to consider the policy of the law on adverse possession. In unregistered land, adverse possession fulfills a useful role in providing certainty of title to land, in the absence of a register, because 12 years’ peaceful possession of the land means that the title of the possessor cannot be challenged. This may be applied to the whole of the land in a title, or to small strips of land that might otherwise be the subject of boundary disputes. Adverse possession is therefore justified as part of the law on limitation, and indeed the law is contained in the Limitation Act 1980.

There are also valid public policy reasons in keeping land in use, so abandoned land should be able to be brought back into the ownership of someone who will put it to use.

Where land is registered, it is far less clear how far the reasoning above should apply. In the Law Commission report LC254, it was argued that registered land is fundamentally different because title is based not upon possession, but upon registration (para 10.11). Only a change in the register can actually remove the legal title from the Registered Proprietor. The report found only four situations in which adverse possession could be justified in registered land:

Where the registered proprietor disappears and abandons his or her land; where there have been ‘off-register’ dealings (someone has bought the land and paid good consideration, but neglected to register); where the register is not conclusive (for example where the boundaries are not fixed) and where there is a ‘reasonable mistake as to rights’, including situations of proprietary estoppel.

The Law Commission and Land Registry decided that adverse possession did still have a role to play, but that the law should be changed. This was enacted in LRA 2002 s.96 -98 and Sch.6. These provisions apply to registered land for which the limitation period under the LA 1980 has not been completed before 13 October 2003. The most fundamental difference between the LA 1980 rules and those under the LRA 2002 is that there is no longer an automatic barring of title by adverse possession. Under the LA 1980 rules, once the twelve years was up, the paper owner could not do anything about the squatter.

Adverse possession alone does not bar the registered proprietor’s title— LRA 2002, s. 96. After being in adverse possession for ten years, the squatter has the right to apply to the Land Registry to be registered as the proprietor of the land that he or she has adversely possessed. The squatter has no rights in the land until an application to be registered is made, and can defend an action for possession only if one of the grounds in LRA 2002, Sch. 6, para. 5 can be made out. In the vast majority of cases, a squatter can be evicted however long he or she has been on the land.

The squatter must be in possession of the land when the application to be registered is made— that is, the ten years’ adverse possession relied upon must immediately precede the date of the application.

When the Land Registry receives the application, it will firstly decide if the squatter has an arguable case. If so, the Land Registry will notify certain people interested in the land: the registered proprietor; any registered chargee; if the estate is leasehold, the registered proprietor of any superior registered estate; certain other people interested in the land— LRA 2002, Sch. 6, paras 1 and 2.

Those notified have 65 days within which to object to the registration. If the registered proprietor does not respond at all, the land is presumed to have been abandoned and the squatter is entitled to be registered as the new proprietor. There is no provision to extend the time limits for replying, even in cases of hardship. However, a claim for rectification can be made if there are grounds for doing so: Baxter v. Mannion [2011] EWCA Civ 120.

If an objection is received in time, the squatter will not be registered as the proprietor unless the case falls within one of the exceptions in LRA 2002, Sch. 6, para. 5: if, under the principles of proprietary estoppel, it would be unconscionable for the registered proprietor to object to the squatter’s application to be registered; if the squatter is otherwise entitled to the land; if the squatter is the owner of adjacent property and has been in adverse possession of the land in question under the mistaken, but reasonable belief, that he or she is its owner.

It can be seen from this outline of the changes to the law that the new legislation severely restricts the circumstances in which adverse passion of registered land can successfully be claimed. Unless the land is abandoned, the chances of it being claimed are essentially reduced to those the Law Commission found compelling, so it can be argued that in this more limited form, adverse possession should still apply to registered land.

(Note: there is a lot more detail in lc271 and lc380, so students are strongly advised to read these if they wish to answer such a question.)