In the coming months we will be publishing a series of 'module reviews', providing a brief outline of our first-year modules at Newcastle University to help students get a basic understanding of each topic. In the month of November, we will be looking at land law, which is another one of the seven required modules to obtain a qualifying law degree.
In this first article, we will be focusing on adverse possession, a controversial part of land law which allows trespassers to acquire better title to land than the person who legally owns it. We will be looking at the requirements for establishing adverse possession and how to then gain title if the requirements are met.
DISCLAIMER: all information in these module reviews are taken from our own notes and research so please do not cite this in your work.
Requirements
There are 5 requirements for land to be possessed through adverse possession which have been developed through case law. Overall, there must be an act of discontinuance or dispossession, no right to be on the land and a display of factual possession and an intention to possess for a relevant time period.
Firstly, dispossession or discontinuance must be shown. Schedule 1(1) Limitation Act 1980 states 'the right of action shall be treated as having accrued on the date of the dispossession or discontinuance', effectively meaning this is when the timer starts on adverse possession which will be important for one of the later requirements. Dispossession refers to a person coming in and putting another out of possession, for instance by changing locks on doors while the owner is away, whereas discontinuance refers to when a person abandons possession and another takes it, as can be seen in Palfrey v Palfrey.
In addition, the possession must must be adverse, meaning it must be against someone else's interests and they must have no licence or permission to be on the land. In Lord Advocate v Lord Lovat it was determined that possession must be 'open, notorious and unconcealed'.
The next thing to establish is that the possession is factual, which, under Powell v McFarlane, means the possessor must show an 'appropriate degree of physical control'. The clearest way to do this is enclosure (i.e. putting up fences), however the nature of the land and intention of the possessors must be considered when determining whether this has been shown. For instance, in Dyer v Terry, basic cultivation of the land was sufficient to show factual possession as the land was unusable by anyone else, however this would not stand in other areas of land.
Similarly to the above, there must be an intention to possess the land which can match the intention of the title owner or differ from it (Buckinghamshire County Council v Moran). The meaning of this was also laid out in Powell v McFarlane as 'to exclude the world at large made clear to the world', for instance by locking gates and putting up fences. It is important that no acknowledgement of the paper owner is given for intention to be established as this can ruin a claim for adverse possession, for instance by asking for a licence to be on the land.
Finally, it is vital that the time period from the initial point of adverse possession is considered as, for both registered and unregistered land, this can make a massive difference in whether a claim is successful or not. Unregistered land is governed by the Limitation Act 1980 s15(1), requiring a period of 12 years of possession for the title to be claimed by the adverse possessor. On the other hand, registered land is governed by the Land Registration Act 2002, sch 6(1) and only requires a period of 10 years possession. This time period must be continuous however, and the clock will restart if there is an interrupting event, for instance being removed from the land by the paper owner or recognition of the paper owner.
A number of factors must be considered when judging if the requirements have been met, for example:
Enclosure - if the possessor has done enough to exclude the world at large will depend on the type of land (e.g. Purbrick v Hackney - there was no permanent enclosure structure but the court held P had done what he could with the available resources)
Facts have to be sufficient - if not then regarded a 'de minimis act' (e.g. Boosey v Davis - goats grazing was insufficient)
The nature of the land - if marshland for instance then not a lot can be done on land so provided you are the only person going on the land and acting like the owner that will be sufficient, as in Red House Farms v Catchpole
The age of the possessor - if they are a child they are unlikely to be able to claim adverse possession
Gaining Title
Unregistered Land
Generally, once the required 12 year period is over, the paper owner will automatically lose all rights to the land and the right to sue for the land. There are exceptions that increase the time period, for example if the paper owner is the Crown or a sole charitable corporation the period of limitation is increased to 30 years, however in most circumstances the above will occur. The land is taken subject to any pre-existing obligations (e.g. easements) however it may be dealt with in any way the possessor wishes.
Registered Land
The process for gaining possession of registered land is laid out in the Land Registration Act 2002 (LRA) and requires significantly more than possession of unregistered land. The squatter must, after 10 years of possession, apply to the land registry for adverse possession, who then notifies the paper owner, giving them 65 days to object to this by submitting a counter notice. If no notice is submitted, or the squatter falls into an exception listed in schedule 6 para 5 LRA 2002, then the squatter will become the title owner and take the land subject to any interests, except registered charges. If a counter notice is submitted however, the paper owner has two years to recover possession of the land and if nothing is done in these two years the possessor can apply again and the land will be transferred without notification to the paper owner.
Some key cases:
Bucks CC v Moran (1989) - related to displaying an intention to possess, established the actions of the possessor don't have to be the same as the paper owner
Palfrey v Palfrey (1974) - looked at the idea of discontinuance
Powell v McFarlane (1979) - a key case for factual possession and looking at some of the exceptional considerations (de minimis acts and age of possessor)
Pye v Graham (2002) - looked at the idea of disposession
Zarb v Parry (2011) - looks at what is sufficient for the termination of adverse possession
I hope this very brief summary of the basics of adverse possession is helpful! There is a huge amount of minor details in this topic which I have not mentioned in order to keep it simple and there are a significant number of cases I have not mentioned but that could be used to back up points made in essays for example. If you would like any further help please do get in contact with us and we will do our best to help you!
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