LAND LAW
REVISION NOTE: ADVERSE POSSESSION
ADVERSE POSSESSION
• Possession is 9/10ths of ownership. The laws pertaining to the adverse acquisition of title
in England and Wales reflects this age old maxim, whereby property held in factual and
legal ‘possession’ for a certain prescribed time by a mere trespasser, can lead up to the
transfer of ownership to the him.
• The legal rules on the issue of ‘adverse’ 'possession' in this area of law are rather straight
forward, both to understand and apply. The complication then, for both the law student and
the practitioner, arises due to the existence of multiple regimes, dictating the 'prescribed
time' which must be completed by the squatter for him to obtain an indefeasible title. These
prescriptions are based on whether the land is unregistered or registered, and in the latter,
whether the prescribed time was completed before or after 13thOctober 2003.
• It may seem somewhat surprising that our legal system allows one person to take land
belonging to another and to keep it as his own. However, it must be noted that many claims
to title by adverse possession do not arise by deliberate taking of another’s property, but
rather thru some kind of mistake.
• Boundaries between neighboring properties are often far from clear and one owner may
occupy a small strip of land in the genuine belief that it belongs to him. Adverse possession
may then assist this innocent party who has spent money and time on land which he
believed to be his own but who cannot establish a claim to proprietary estoppel because
there has been no encouragement or acquiescence by the owner.
• Other cases can arise from mistakes on the part of the vendor who purports to sell the same
piece of land to two different purchasers. In cases such as these, the rules of adverse
possession can help to bring the legal title in line with the position on ground. Moreover, the
possibility of acquiring title in this way helps to ensure that land abandoned by its owner is
not left to become derelict or taken out of the property market because the occupier cannot
prove title to it.
• Perhaps most importantly, it is said that the system of adverse possession facilitates and
cheapens the investigation of title to unregistered land as the purchaser is to safely assume
that any person who has occupied property for twelve years has effectively barred any title
that another may have. The last justification has no role to play in registered title which has
as one of its objectives the realization of the concept of absolute title established by the
register.
• In modern law, there remains one common set of rules concerning how adverse possession
must be established, but two sets of divergent rules about the effect of a claim on the paper
owner’s title.
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How is adverse possession established?
• Adverse possession is established when the claimant is in ‘adverse’ ‘factual’ and ‘intentional’
‘possession’ of land for the ‘prescribed period of time’. The rules pertaining to ‘possession’
and ‘adversity’ are the same irrespective of whether title to land is registered or
unregistered.
1) Possession
• The relevant principles that define possession are not found in statute and have been
developed thru judge made law. Possession has been interpreted to mean ‘factual’
possession of land and ‘intentional’ possession of land, both of which have to be established
in order to ground a successful claim of adverse possession.
i) Factual possession;
• Powell v McFarlane;
Slade J held ‘factual possession signifies an appropriate degree of physical control. It must
be a single and exclusive possession, though there can be a single and (exclusive)
possession,exercised by or on behalf of several persons jointly…the question what acts
constitute a sufficient degree of exclusive physical control must depend on the
circumstances, in particular the nature of the land and the manner in which land of that
nature is commonly used or enjoyed…everything must depend on the particular
circumstances, but broadly…what must be shown as constituting factual possession is that
the alleged possessor has been dealing with the land in question as an occupying owner
might have been expected to deal with it and no-one else has done so.’
The taking of possession might be found in a series of actions which together crystallize the
moment of possession or may be based on some one-off activity (such as enclosing the land and
gating it) which is maintained thereafter. It is not necessary for the paper owner to know that they
have lost possession or for the paper owner to be inconvenienced by the acts of possession.
Moreover, whereas possession will not be presumed lightly from acts that are equivocal in nature
or temporary in purpose, such as growing vegetables or clearing land for one’s children to play,
even small acts of custody and control might suffice if the land has been abandoned, is inaccessible
by the paper owner or is of such quality that it does not allow significant possessory acts. For
example, possession was found in Red House Farms v Catchpole where shooting wildfowl on
marshland, accessible only by boat was the only use to be made of the property. In Williams v Jones,
grazing sheep on quarry land was sufficient. On the other hand, in Central Midland Estates v
Leicester Dyers, the parking of an unlimited number of cars on the land was not sufficient as it did
not give the claimant enough ‘custody and control’ of the land to establish factual possession.
• Battersea Leasehold and Freehold v Wandsworth; although what is sufficient possession
will depend on the nature of the property, it is clear that the use must be exclusive either to
one occupant or to occupants jointly. The claimant had taken possession of a public house
and allowed several others to take refuge there, providing them with keys to access the
premises. This arrangement could not be possession for purposes of adverse possession.
• LBC V Minchinton; the successful adverse possessor had fenced off part of the claimants
land, apparently to prevent the escape of her dogs. The courts were clear that it was the
effect of the adverse possessor’s actions that was important and not the motive with which
they were done. If the effect of the fence was to keep the world out as well as keep the dogs
in, it amounted to physical possession.
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• Pubrick v Hackney; although the adverse possession must not be concealed, the adverse
possessor is entitled to maintain a low profile.
• Dyer v Terry; ‘mere use’ of the property without a requisite degree of control and custody
will not suffice. In Dyer, the adverse possessor succeeded in respect of some but not all of
the land because there acts of possession varied on different parcels of land.
ii) An Intention to Possess:
As well astaking physical possession of the land, the squatter must have the intention to possess i.e.
the ‘animus possidendi’. What is required is evidence that the adverse possessor, for whatever
reason, regarded the land as being his to do with as he chooses, whether or not he also knew that
some other person had a claim. Such an intention will invariably be adjudged according to the
outward conduct of the squatter and the claimant’s own statements as to his intentions will be of
little value. The question of intention and of physical possession then, is part and parcel of the same
inquiry. So that enclosing land by a fence may constitute both the act of possession and
demonstrate the intention to possess, e.g. Moran, as might changing locks to a flat, e.g. Blackburn, or
grazing animals within an enclosed field e.g. Graham.
• Mitchell v Watkinson; it is clear that obvious conduct in relation to acts of possession on the
land is the best evidence of an intention to possess. However, such acts need to be more
overt where the land was once occupied with permission. It will be a question of degree in
each case.
• Pye v Graham, the ‘necessary intent is an intent to possess, not to own and an intention to
exclude the paper owner so far as is reasonably possible.’ In simpler words, the claimant is
not required to prove that he believed that the land was his, or wanted to acquire it, but
rather that he meant to exclude all others if he could. This means that a squatter may have
the requisite intention to possess despite the fact that he knows that the owner has a future
use in mind for the property and uses the land in a manner that does not prevent the
accomplishment of those plans. Conversely, if the squatter knows of the intended future use
of the land by the paper owner and he uses the land in such a way to make the intended use
impossible, the intention may of course be inferred readily. It is the state of mind of the
squatter then that is relevant and not that of the owner.
• Buckinghamshire v Moran;the squatter had cultivated a piece of the councils land which
adjoined his garden, fencing it and installing a gate which he chained and padlocked. In view
of the Court of Appeal, the locking of the gate amounted to the final unequivocal
demonstration of the defendant’s intention to possess the land. The squatter knew that the
council had plans for the future use of the land and he made it clear that he intended to keep
the land only till such time that the council required it. The Court of Appeal was satisfied
that he ‘intended’ to take ‘possession’ of the land until that time, and this was sufficient for
a successful claim.
• Lambeth LBC v. Blackburn; a squatter may be able to demonstrate an intention to possess
the land, even though he knows that the land isanother’s and would have accepted
permission (a lease) if one had been offered. Despite this, he did have a current intention to
possess and, after 12 years, this barred the title of the paper owner.
• Offlue v Bossert; reiterates the dicta of Pye to the effect that an intention to possess can be
found even if the owner has kept the property dormant in view of some plan to develop it at
a future date.
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2) Adverse
There is no statutory definition of ‘adverse’, but it may be understood as meaning possession which
is inconsistent with the rights of the owner, although not necessarily hostile or aggressive. There
can be then, no adverse possession by a person in possession of land with the consent or
permission of the documentary owner. This consent or permission may be given expressly for
example pursuant to a lease or a licence (Archangel v Lambeth BC) or it may be inferred or implied
by the courts from the circumstances of the case.
• Zarb v Parry; a mere acquiescence in the use of one’s land is to be distinguished from
‘consent’ or ‘permission’ to use it. So, an owner who has knowledge that a squatter is in
possession of his land and sits on that information for the time being, will not be able to
show that possession was with his consent.
• Colin Dawson Windows v King’s Lynn, West Norfolk BC; the claimants has used land
belonging to the defendant as a car park for some 16 years and claimed to have acquired
title to it by adverse possession. The Court of Appeal however inferred the presence of an
implied licence on the basis that there had been sporadic negotiations between the parties
for the sale of the land to the claimants and held that as a result, the claimantscontinued
possession of the land was with the implied permission of the owner. Rix LJ held ‘it is
natural to draw an inference of permission where a person is in possession pending
negotiations for the grant of an interest in land’.
• Offlue v Bossert, Rehman v Benfield; adverse possession may cease if the adverse possessor
expressly or by implication acknowledges in writing the title of the documentary owner.
Whether a written document contains an acknowledgement depends on the proper
construction of the document in all its circumstances. However, this acknowledgement must
be made within the period where the prescribed time is being calculated in favour of the
claimant.
• Pye v Graham; in Pye, the Grahams were given grazing licences in 1983 and then licences to
cut hay in 1984. Further requests by the Grahams, from 1985 to 1987, to renew the licences
were denied after which the Grahams continued to use the fields up until 1999. The courts
held that although the earlier requests were an acknowledgement of the owner’s superior
title, such requests ended in 1987 from whence the limitation period started to run against
the owner of land and ran its full course of the required 12 years up until 1999. The
Grahams were granted title to the lands.
• Clowes Developments v Walters; agenuine or mistaken belief that the land is possessed
with the permission of the paper owner is fatal to any claim of adversity. One cannot intend
to treat the land as within his ultimate control if he believes that he is permitted to be there
by the owner. If the alleged adverse possessor once occupied the land with the permission
of the paper owner, he would be required to present clear evidence to show that continued
occupation after the permission had ceased was done with the relevant ‘animus possidendi’
i.e. although possession started as non–adverse, it became adverse when the lease/license
ended and the person remained in occupation, or ceased to pay rent.
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