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Adverse Possession - Detailed
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Combine with the revised Adverse Possession lecture of mine.
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Lecture 8: Adverse Possession:Possessory principle in Action: 3 key case studies:
1) Powell v McFarlane (1979)
1979 = before LRA 2002 [do not need to think of new system; important as it
illustrates factual possession and intention to possess]
Three acre filed in Surrey; McF [registered owner of land] left to work
oversees. He had plans to develop the land, but when he had left his plans
were to plant Christmas trees and sell them. It all failed because land was so
poor in quality the crop failed.
Powell = living nearby this field with grandparents and he was a precautious
young [14yrs in 1956] when spotted this land was left vacant. Noticed trees
growing but the failed crop, left for a long period of time he brings the family
cow Kasha over to land to graze cow on the grass.
Repaired boundary fence, cut hay, cleared brambles and he occasionally used
land for the purposes for hunts, shoot pigeons, hunt rabbits used for those
purposes. 1956-1973 Powell has been using the land intermittently.
In 1962 [20yrs old] has a bright idea to set up his own business and a tree
surgery. This piece of land be perfect for the business? Set up in corner of
field, some machinery and put up a sign advertising his business. Stored
vehicles on the land. His use of the land has expanded, more intensively now.
McF = he sends his wife back to have a look at the field, she drives by the land
and she doesn’t notice anything too significant, but notices there is a fence, but
it seems like the one her husband put up, notices the sign and thought it was
doing no harm.
1972 = comes back and notices something different, notices some extensive
fencing no more the corner of the filed whole land is being used by Powell.
Look at the dates; dealing with registered land and have a boy who goes into
possession in 1956 it is 1972 that we have the registered owner becoming
aware of what is happening and act for trespass.
Powell’s claim = been in possession for so long, your right to act for
possession has expired, have not used rights before their BBD.
I have completed adverse possession, factual possession for my use [more than
12yrs] I have an intention to possess the land.
Court: First Instance decision
o Justice Slade:
Gives us two definitions defines what FP is:
It is a much nuanced, context driven assessment the
courts will first begin of nature of land, then how it is
commonly used and then has C met the standard as an
occupying would?
o Dealing with 3 acres of land [agricultural land], so applying this Justice
S states that people can rely on his acts of possession to establish and
demonstrate he has been in FP from 1956-1972.
o He has grazed a cow there, farmed the land, much more waste was
added to the fencing, putting the fence to exclude the others to
demonstrate the control of the land. 20 setting business of land, clearly
using the land to maximum use an owner would. Court accepting
Powell could demonstrate FP.
Intention to possess: Definition was given again
, Demonstrate in action and words you intend to possess
the land and exclude everyone and the registered
proprietor.
o Judge looks at quality of the acts:
P’s actions from 1956-1962 were equivocal; simply using the
land as a young boy
This changed from, 1962 when actions of establishing business,
putting up sign, parking vehicles – the problem is if we count
from 1962-1990 it is not 12yrs.
P could establish possession from 1962-1972 BUT limitation
requires 12yrs!
Does McF rights to evict you act for trespass has not expired and therefore P
was removed from the land.
Criticisms:
- Judge seems to suggest a 14yr old boy simply in that stage incapable of presenting
intention to possess the land.
- He fenced the land etc, and there is a weakness to argument analysis of judge
undervaluing the potential for a younger person to be in possession.
- FP is a simple factual test is there someone in possession, therefore that is sufficient.
It does not turn on the fact if it is a child or adult, but MCF & P demonstrate that this
is important.
It demonstrates to you the absolute simplicity of the limitation rules, it is just 12yrs you are
securing your possession and it shows this applied to registered land. With the same applied
to unregistered.
Possessory principle in Action: 3 key case studies:
2) JA Pye (Oxford) v Graham [2002]: IMPORTANT CASE
First instance decision, then HOL DECISION
- Property developer [Pye] owned Farmland with development potential
- The land was used by local farmers [Graham] under a grazing license
- Pye did not renew the license and wanted to leave land vacant
- The Grahams continued to use the land from 1984-1999 for a range of farming
purposes for years
o There was a lock on a gate, with a key to the gates and was given to G.
G are there with consent, permission of registered proprietor P.
o G sent a letter to P asking to renew the license, assumed it would be
cleared up and continue to use the land.
o 15yrs – range of farming purposes, ploughing the land, harrowing stuff
they were not allowed to do under the lease agreement.
o P find the G using the land and they bring a claim for trespass for G to
be removed the land.
o G’s claim = been in FP and intention to possess more than 12yrs, 2002
before RLA came into effect, we have AP of this land been more than
12yrs your right of action has expired.
- First instance decision:
- Framework:
(1) Factual possession: “A sufficient degree of physical custody and control”
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