Adverse Possession (Squatter Rights) - Exam Style

There might be implied permission (so an implied license where this is justified by the facts) which might limit the possibility to claim adverse possession HOWEVER the notion of an implied license being given was abolished by section 15(6) of the limitation act 1980, paragraph 8(4)

- A license may be implied where this is justified by the facts. - In one case (WALLI's CAYTON BAY HOLIDAY CAMP v SHELL MEX) prior to the Limitation Act 1980, a license was implied where the owner of the land left it unoccupied because he had no present use for it, but intended to make some use of it in the future. WALLI'S CAYTON BAY HOLIDAY CAMP V SHELL MEX (the farmer sold a land that was supposed to be used for construction, once a new road was built: this did not occur and the farmer continued using the land in a variety of ways - it was implied that a license was given, and that the petroleum's title had not been defeated as it had not amounted to adverse possession

First requirement to claim adverse possession of the land is factual possession of the land

- A squatter will be able to claim adverse possession if he has taken physical possession of the land - Under the provision of the Limitation Act 1980, the person (a squatter) claiming an interest in land by way of adverse possession will only be entitled to the claim that his possession was adverse from the date that the true owner was dispossessed or discontinued his possession (from the moment when the paper owner is dispossessed, or his possession is discontinued, then the squatter can begin claiming adverse possession) o "The person claiming by possession must show either discontinuance by the paper owner followed by possession, or dispossession ("ouster") of the paper owner" - Discontinuance of possession: is following the paper owner into possession - Dispossession ("ouster"): when the paper owner is "exiled/evicted"

Definition of Adverse Possession (obtaining ownership rights informally - "squatting")

- Adverse possession is a method of acquiring title to real property by possession of the property for a statutory period of time under certain conditions. o For example, it is possible for a person to gain title to the land by taking possession of it for a sufficient period of time. - "Squatter rights" is a common and convenient description for a person in adverse possession. o Nowadays, "squatter rights" is often used to describe people who occupy a vacant property. o The rules on adverse possession may appear inconsistent with protecting ownership because a squatter seems to be stealing land from its true owner, who is then incapable of recovering it. - Adverse possession is based upon the notion that title to land may follow from being in possession of land for a long period of time. o NOTE: since LRA 2002, it is virtually impossible for someone to claim ownership by adverse possession of a land title which is registered The objective is to make the Land Register a reliable record of ownership and title to land.

Factual possession starts when... (the needed time under section 15 of the Limitation Act 1980 establishes factual possession needs to be of a 12 year period for it to then extinguish the paper owner's title) (case that establishes the difference between the actions that commence factual possession)

- Dispossession (or discontinuation) of property makes factual possession commence: notion found in the Limitation Act 1980, schedule 1, paragraph 1 RAINS v BUXTON: establishes the difference between dispossession (dispossession is forcing the paper owner out) and discontinuance (is where the person in possession goes out and is followed in by others),

They type of land may affect the expectation about how it may be used/possessed, and what is sufficient control (it depends on the physical nature of the land).

- Garden/House: Buckinghamshire CC v Moran - Farmland: Pye v Graham - Inaccessible marshland: Red house Farms v Catchpole - Wall: Prudential Assurance v Waterloo - Riverbed: Port of London Authority v Ashmore

RECAP: LRA 2002 regime (where the 12 year period no longer applies) does not apply on unregistered land.

- If the squatter can establish he was in adverse possession against the original paper owner for 12 years, before 2003, then the LRA 2002 rule does not apply to the claim. - Schedule 12, paragraph 18(1): if the squatter is in actual possession to the land (before 2003, so the LRA 2002 regime does not apply) the unregistered title, LA 1980 sections 15 and 17 (if the land is not registered) applies, while the registered title, LRA 1925 (applies if the land is registered). o By using the LRA 1925, the original paper owner is indefinitely deemed to hold the registered title on trust for the squatter section 75(1), LRA 1925, and then the squatter may apply for registration after 12 years section 75(2), LRA 1925 (what if the original paper owner sells the land? If the squatter is in actual possession to the land, then the original paper owner would be bound and not be able to sell it, schedule 12).

Adverse possession versus public policy (+ cases that established the notion of the need of the paper owner to take active measures against the adverse possessor or the law supposes he does not value his land enough)

- It might be against public policy to allow people to acquire land without the agreement or even against the wishes of the paper owner (the real and legal owner) of the property by merely taking possession of it. - The law regards an owner of the land to being under the duty to protect his own land: if his land is occupied by squatters, he is expected to not stand by and not take action, but rather have them removed and seek his rightful remedies to evict them as being trespassers. o If the rightful owner does not take advantage of the remedies that are available to him, the law supposes that he does not value the land enough or at least not in a sufficient manner to take action to protect his rights. o This notion and rational was articulated in the case of RB POLICIES AT LLYOD'S v BUTLER: a car which had been assured had been stolen by tan unknown person - seven years later, the car was found in the possession of the defendant who seemed to have bought it in bona fide, without the knowledge of this being stolen: it had been passed down "through a line of intermediate purchasers" during the seven years. • It was held that time beings to run against the owner of a stolen chattel from the date of the theft, even though the owner does not know the identity of the thief or the whereabouts of the chattel. - BUCKINGHAMSHIRE CC v MORAN:the disputed land was acquired through adverse possession because even though the plaintiff knew about the defendant's intention to take possession he did nothing, even when he could have started doing something when the defendant fenced off the land to use as his own garden (so he was driving others out of possession).

Cases where fencing or enclosure did amount to a clear intention to establish factual possession

- Physically fencing the land will generally be sufficient to establish factual possession. WILLIAMS v USHERWOOD (case where adverse possession was claimed because although parking cars on another's enclosed land in itself is not enough intention to possess, so no adverse possession, paving the other's property so to park the cars on it does amount to sufficient intention to possess, so valid adverse possession) SEDDON v SMITH (adverse possession was awarded to the plaintiff over the strip of land, who's title was found to have been originally of the plaintiff's predecessors and not the defendants: the plaintiff used the strip to grow vegetables and doing all the acts necessary to that purpose - implying adverse possession) BARRETT v TOWER HAMLETS (factual possession had been satisfied: the reasoning of Pye v Graham was applied to this case): The tenants of a public house used and occupied adjacent land and repaired and maintained a fence, which secure it from access by third parties, whilst believing that the land was part of their tenancy. Neuberger LJ held that this established a strong case. o It was held that it was not important that the fence did not cover the whole area: the main requirement was that the occupier treated the land as would the owner. As it had been held in Pye v Graham, the requirement of factual possession was readily satisfied where the defendants had farmed the land that belonged to the plaintiffs: in both these case, the owners were physically excluded from the land by hedges and the lack of any key to the road gate providing access.

Fencing and enclosure make a strong case for factual possession but fencing is NOT essential

- The enclosure of the land is not a necessary requirement for factual possession, and in many cases it has been held that factual possession has been established without fencing or otherwise enclosing the land. PILFORD v GREENMANER: The judgment of the CoA was important in this case: it was held it was not necessary to enclose dispute land "in such a way and to such an extent that no one could gain access save with the permission of the respondent". o There is no such (fencing being necessary) legal requirement for adverse possession. The respondent only has to show that their acts were sufficient to amount to physical custody and controls bearing in mind the nature of the land. - BASILDON DISTRICT COUNCIL v MANNING: Erecting a fence and dumping poultry manure was held NOT to be adverse possession (as this did not constitute factual possession) - LEIGH v JACK: It was held that the defendant HAD NOT acquired the title to the enclosed land under the Limitation Act 1833: the person claiming adverse possession had used the land for storage materials. The owner had also made occasional used of the land. The claim of adverse possession failed because the claimant had never had possession to the exclusion of the owner. - TECBLID v CHAMBERLAIN: it was held that children playing on the land, and who had exercised their ponies there had NOT done sufficient to establish factual possession.

What counts as factual possession? (For example, doing things an owner might do)

1. Dealing with the land (...) as an occupying owner might have been expected to deal with it, and no one else has done so (notion explored in POWELL V MCFARLANE - Powell had used the land as the owner of the land would have done) 2. Sufficient degree of physical control/custody for own use 3. Exclusive possession - exclude the world at whole, including the true owner.

There are THREE requirements need to claim averse possession (Quote found in PYE v GRAHAM regarding first requirement by Lord Browne-Wilkinson)

1. Factual possession, AND 2. Intention to possess, (animus possidendi) AND 3. Possession must be adverse (discontinuation of possession: where the possession of one goes out and the is followed by others). The defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.' (Lord Browne-Wilkinson in Pye v Graham)

Ownership and Possession (A has a freehold ((fee simple)) estate in land, and B wants to buy it. How does A prove how he acquired his freehold estate? ((Two possible methods)))

1. Formally Does A have a title deed for the land (unregistered land) OR is he a registered proprietor in the Land Registry (registered land under LRA 1925 or LRA 2002) OR 2. Informally: by taking possession without permission and being in possession for that period of time (required by the law)? Possession of land = ownership of land - Issue is raised as to if this is possible or not.

RECAP: Method of acquiring title

1. Ownership and possession: The exact means by which a squatter can obtain title to the Land by adverse possession will vary seen whether the land is registered or unregistered. - Unregistered land: the title of a paper title owner is extinguished where a squatter is in adverse possession for a period of 12 years. This automatically evaluates the right of the squatter to those of the owner, which cannot be defeated by the previous owner. - It is similar in the case of registered land, although the squatter needs to be registered as owner to acquire legal title. However, with the new regime introduced in 2002, a squatter does not automatically acquire the right to be a registered owner by a period of adverse possession (rather he acquires the right for registration after 10 years of adverse possession): rights acquired under the old regime are still enforceable. 2.Extinguishing a mortgage: this is an instance where the old rule continues to apply: when a mortgagor remains in possession after the mortgagee acquires possession to enforce a mortgage: NATIONAL WESTMINSTER BANK v AHSE NATIONAL WESTMiNSTER BANK v ASHE: a homeowner granted a second mortgage to secure a debt: it gave the bank immediate right to possession. The homeowner became bankrupt and wen in arrears but the bank took no action for over 12 year. o It was held that the possession was adverse against the bank, so that the end of the limitation period (12 years), the mortgage was automatically extinguished.

RECAP: Under registered land in 2002, even if the paper owner objects in time to allowing the squatter to gain adverse possession, it could be that the squatter succeeds in having possession even when there is objection on behalf of the land owner in three cases

1. Proprietary Estoppel: the original owner has acted unconscionably and is therefore estopped, because the squatter has equity by estoppel and ought to be registered: schedule 6, paragraph 5(2). - If for example the squatter has built on the land, or has an oral contract of sale, so has paid the purchase and moved in, it is equitable for the squatter to be registered as the owner. 2. The squatter is otherwise entitled to be registered as the owner: schedule 6, paragraph 5(3). - The squatter is entitled to the land by will or intestacy, OR a valid (i.e. written) contract for sale of the property has not been completed. 3. If there is a boundary dispute with the neighbour: the squatter is claiming land at the boundary of his own land - schedule 6, paragraph 5(4). This can be done if the (I) land claimed is adjacent to the applicant's own land, (II) the boundary of the properties are undetermined, (III) the land claimed is registered for one year or more, and (IV) for 10 years, "ending on the date of the application", the applicant/predecessor reasonably believed land was his (so the applicant believed that the territory was his for ten years before the application to the LA 1980, schedule 6, paragraph 5(4) was applied to) - Zarb v Parry

Test for the presence of implies licenses: two requirements (given by RIX LJ)

1. Some overt act by the landowner from which it can be drawn that permission was in fact given, 2. A reasonable person would have appreciated that the user was with the permission of the landowner.

Key issues in PYE v GRAHAM - From this case, the HoL addressed several key issues (three) concerning the law of adverse possession and the effect of the case as discussed by Lord Neuberger

1. The first issue was the necessary requirement for the animus possidendi - which must be to exclude the whole world including the true owner, insofar as it is reasonably practical and so far as the processes of law will allow. 2. The effect of willingness to accept a licence - the fact that he had a licence does not negate the adverse nature of the claim: it was the fact that the squatter's possession of the property was unauthorised. Graham had no right or permission to be on the land: this made the possession adverse. 3. The decision made in Pye v Graham (that adverse possession had extinguished the paper owner's title in the land) raised discussion in potential human rights issues surrounding the acquisition of title by adverse possession. o This issue regarding human rights was further underlined when Pye brought the case to the European Court of Human Rights, claiming his rights had been breached under article 1 of the European Convention on Human Rights (his human rights had been breached since the UK government had deprived him of his property without compensation) - The need for reform in the law of adverse possession was discussed by Lord Neuberger J at first instance in this case, and although the principles of adverse possession in registered land have now been significantly weakened by the LRA 2002, o The LRA 2002 will not apply to cases in which the squatter has extinguished the owner's right to action prior to the commencement of the act in 2003.

Essential elements of adverse possession: Whether the land is registered or unregistered, the squatter can make a claim only if he or she has been in adverse possession, which means possession that has ousted or excluded the paper owner. - There are two main requirements that a squatter must satisfy before he is able to claim adverse possession of the land

1. The squatter must show he was in factual possession of the land 2. The squatter must show he possessed the land with the necessary intention to possess o This has to be without the paper owner's consent.

RECAP - introduction of the requirements to claim adverse possession and the case that established this

A squatter, so to claim adverse possession must show that he has 1. Taken sufficient factual possession of the property 2. Has take factual possession with the required degree of intention to possess it 3. The possession must possession which is adverse 4. The adverse possession must continue uninterrupted through out the entire limitation period, which is usually 12 years. - It will only be adverse possession if the land it not owned by the crown of the church (or any other important body). - Finding the starting point is important for the clock to run, and adverse possession must continue throughout (the clock starts and then for 12 years from that the possession should be adverse uninterruptedly). - POWELL v MACFARLANE 1977 introduced the requirements needed in order to claim adverse possession.

When a squatter dies, he can pass on such time he has been in adverse possession in his will (continuance of adverse possession from one adverse possessor to another)

ASHER v WHITLOCK Williamson, a squatter on the unregistered land of a lord, built a cottage which he housed himself, his wife (widowed) and their daughter. Williamson died, leaving the land upon which the cottage was built to his widow until she remarried, and then it would pass the their daughter. The widow remarried but the daughter did not take possession: the re-married wife and the daughter died at a similar time, so both the descendent of the daughter and the wife's new husband claimed possession of the land. The issue that arose was over who had the right to possession. o It was held that the daughter's descendants had the right to the land because an earlier title will take priority over a later title: the daughter's title originated before that of the wife's husband (on death of Williamson as opposed to the start of the new husband's occupation, so the descendant's title took priority. o (The Lord could have claimed possession at any time within 20 years of the start of Williamson's squatting ((because it was an unregistered land title)) and he was in adverse possession) - Adverse possession can be a continuous possession by hoping onto previous owner (adverse possessor, so squatter), which is recognised as existing in the Limitation Act 1980.

RECAP: Adverse possession: Human Rights Angle

All adverse possession / limitation rules are compatible with Human Rights Act 1998. - There is the free enjoyment of possessions (Article 1) - It was argued that adverse possession (especially in the LRA 1925 rules) are actually incompatible with Human Rights o It was eventually settled by the Grand Chamber of the European Court of Human Rights which claimed adverse possession not to be a breach of human rights (Pye v Graham)

LIMITATION ACT 1980, section 15(6), schedule 1, paragraph 8(4): the law will NOT imply a license (especially in the cases of future plans: PYE v GRAHAM and BUCKINGHAMSHIRE CC v MORAN) HOWEVER a license will be granted when...

BARRET v TOWER HAMLETS (Neuberger's judgement: the courts will allow licenses during the negotiations for the land, where the purchaser is in occupation) COLIN DAWSON WINDOWS v KING'S LYNN (a licence was implied because the paper owner allowed the squatter to remain in the property while negotiations were occurring, to then leave if negotiations did not proceed well)

Cases that deal with the relevance of motive for fencing

BATT v ADAMS: fencing might sometimes not be equal to intention to close the whole world off - for example, the fence had been put up for the purpose of keeping the animals from escaping - therefore there was no explicit intention to close the whole world off. - MINCHINTON v HOUNSLOW: The fence would do two things, one keep things out (which would establish factual possession) and to keep things in (would not establish factual possession). o The use of a strip of land as a garden for compost was a sufficient trespass to allow an action and was therefore sufficient to found a claim for adverse possession. - BOLTON MBC v QASMI: The assessment of whether or not there was intention is largely objective and based on inferences drawn from the factual possession criterion. However, it has a slightly subjective element as it considers the motive of the squatter in the building or utilising the thing, which may exclude the world at large. o Fencing is an objective matter with a subjective component (the intention for which the fence was set up).

The claimant's use may be too insubstantial or trivial to claim factual possession

BOOSEY v DAVIES - The CoA was faced with a claim for waste ground - the waste ground was on the side of the defendant's house. He had done some fencing taking vegetation and cleaning the area around the waste ground. o It was held that this was too trivial and insubstantial to amount to factual possession (there was a minimal use of land) - TECBILD v CHAMBERLAIN: it was held that children playing on the land, and who had exercised their ponies there had NOT done sufficient to establish factual possession. - CENTRAL MIDLAND ESTATES v LEICESTER DYERS this was a claim of adverse possession of a strip of land outside a factory. Employees had parked their car in the land. o It was held that the parking of the car and the duration was insufficient to be factual possession.

RECAP: Adverse possession: criminal and civil law

Criminal law: offence of squatting in a residential building, sentencing and punishment of offenders act 2012, section 144 - Does the criminal act (of squatting) prevent a civil law claim to adverse possession? The two concepts of adverse possession and section 144 of the offender's act 2012 are two separate thing and don't affect each other.

Acknowledgement of the ownership of the paper owner by the adverse possessor means that there will be a resetting of the clock and time starts to run again (Acknowledgement: section 29-31 Limitation act 1980)

If the adverse possessor has acknowledged the ownership right of the owner (for example, the squatter writes a letter to the paper owner acknowledging he is the paper owner - acknowledgement must be written and not oral). If the paper owner then takes long to remove or bring action against the adverse possessor, then adverse possession will start again (and after 12 years of adverse possession, the paper owner's title will be extinguished) case: Edgington v Clarke

The true owner's intention and future plans are irrelevant (opposing cases: BUCKINGHASHIRE CC v MORAN ((adverse possesion established)) and LEIGH v JACK((no adverse possession established))

In Buckinghamshire CC v Moran, the CoA rejected the judgment in Leigh v Jack, (which was that there could never be a sufficient intention to possess, where the possessor was aware of a future intended use of the land). In Buckinghamshire CC v Moran, it was held there was adverse possession, regardless of the fact that the squatter knew of the future intention of the true owner.

Factual possession depends on the nature of the land: the main question of whether a person has taken factual possession of the land is complex because what is sufficient to constitute factual possession will depend upon the nature of the land concerned. (case establishing this notion of what is considered to be sufficient to constitute factual possession will depend upon the nature of the land concerned)

LORD ADVOCATE v LORD LOVATE (introduced notion of what is considered to be sufficient to constitute factual possession will depend on the nature of the land concerned): The defendant claimed ownership of land based on ancient possession of a property on the river. Lord Blackburn claimed "the weight depending on the nature of the tract" o What seems to be required is that the possessor must have taken exclusive control of the land: however, what will be sufficient to constitute control will itself vary with the nature of the land.

The squatter's willingness to pay if asked does not destroy his intention to possess

OCEAN ESTATES v PINDER: in many cases the squatters have given evidence that if they had been asked by the paper owner to pay for their occupation of the disputed land or to take a lease they would have done so. o This notion was reinforce in PYE v GRAHAM where it was accepted if the necessary requirements for adverse possession are established, there is no inconsistency between a squatter being willing to pay the paper owner if asked and his being in the meantime in possession. An admission of title by the squatter is not inconsistent with the squatter being in possession in the meantime. - LAMBETH LBC v BLACKBURN: The council however argued he did not have the relevant intention, but the CoA argued and held that he did have intention as he had the idea that he would take possession of the present period.

Mistaken belief about the permission to be on the land (Possession might be adverse where the squatter has no permission to be on the land, but thinks that he does have permission. )

OFULUE v BOSSERT: if a person believes to be a tenant but the paper owner has not given consent, the person even though believes to be legally a tenant can still amount to adverse possession

Case that established adverse possession because the claimants had done all that was possible to them to assert exclusivity and ownership (seen the territory in question was a wall) these measures were enough to claim possession of it

PALFREY v WILSON - This was a CoA case: it involved a dispute between two neighbours about the ownership of the wall standing between their properties. The Judges agreed with the defendants (Wilson) who claimed they had acquired the wall by adverse possession. The issues taken into account were that the Wilson had: o Rebuilt a substantial part of the wall, which had collapsed as a result of damage by a bonfire, o Inserted a damp proof course, o Applied for planning permission to extend the height of the wall and carried this out, o Refused the claimant permission to key in his new conservatory to the wall - This proved that the Wilsons had done everything that could be expected to assert exclusivity and ownership: this was sufficient to claim adverse possession of the wall.

Case establishing the requirements necessary to establish the possession of land adversely to the paper owner (factual possession AND most importantly INTENTION TO POSSESS and appropriate degree of physical control)

POWELL v MCFARLANE Powell claimed to have been in adverse possession of a field since he was a 14 year old boy, as he started to graze the family cow there: the registered proprietor of the field (McFarlane) had bought a fee simple of the field years before Powell started grazing his cow there. McFarlane disputed Powell's claim: a squatter (Powell) had occupied the land and defended a claim for possession. The courts discussed the conditions necessary to establish the intention to possess land adversely to the paper owner. o Slade LJ held that "in absence of evidence to the contrary" the owner of the land with the paper title is deemed to be in possession of the land, so being the person will have prima facie rights to possession - in this case, the law will award, without reluctance, the possession either to the paper owner or to the persons who can establish a title through the paper owner. If the law is to attribute the possession of land to a person who can establish no paper title to the possession he must show to have both (1) factual possession and the requisite (2) intention to possess (animus possidendi) AND (3) appropriate physical control (It must be a single ((exclusive)) possession though there can be a single possession exercised by or on behalf of several persons jointly - however, a person in possession of the land and an intruding person on that land without the consent of the first, cannot exist at the same time. The question of what acts constitute a sufficient degree of exclusive control depends on the circumstances, especially on the nature of the land and the manner in which the land is commonly used of enjoyed. • What constitutes factual possession is that the alleged possessor is dealing with the land in question as an occupying owner might have expected to deal with it and that no one else has done so))). o The intention to possess (animus possidendi) was seen as being the requirement of crucial importance: the owner of the land has the right to possession and it will be readily assumed to have the intention to possess (unless the contrary can be clearly proved). In the case that the question is whether a trespasser has acquired possession, the courts will require a clear and affirmative evidence that the trespasser (claiming that he has acquired possession) not only had the requisite intention to possess, by made such intention clear to the world • Slade LJ (within this) also claimed that the intention to possess must be sufficiently clear so that the owner, if present at the land, would clearly appreciate that the claimant is not merely a trespasser, but is seeking to dispossess him.

But enough is more than enough to establish factual possession (Judgement by Neuberger):

PURBRICK v HACKNEY - anything that is sufficient to constitute factual possession is more than substantial enough to satisfy the requirements of factual possession. - Mr P was a businessman who commuted every time he came to work: he found a bit of land in that area and but his tool in the shed. He then decided to make it secure and made a door an put a lock on it. o The council held that he did far too little for him to have taken control: this argument was rejected and he did have actual factual possession.

Third requirement: the possession must be adverse to the interest of the owner

Possession must be adverse to the interests of the owner: this means that the claimant must be exercising factual possession of the land as a trespasser, rather than as someone who is entitled because he has the permission of the owner to occupy the land. - Therefore a tenant of a freeholder or a person to whom he has granted a license, whether consensual or unilateral, cannot maintain that his possession was adverse. case where there was no adverse possession because the possession was not adverse: BP PROPERTIES v BUCKLER (old lady believed to be in adverse possession but BP properties had actually written her letter saying that she could stay as much as she wanted: so no adverse possession but a license) o However, a tenant or licensee's possession may become adverse if it exceeds the permission or continues beyond the time when his lease or license has come to and end (COLCHESTER BC v SMITH)

Analysis of the PYE v GRAHAM case (where possession of the land had been acquired by adverse possession)

Pye was the paper owner of the land: Graham was the squatter. The land in question was an agricultural land that was ripe for development: it was apparently a prime site worth millions. The possibility for development had been known for many years, but Pye rather than leave the land empty, allowed Graham to occupy it for grazing. - An informal license was initially granted and a year later the parties entered into a written agreement whereby Graham was allowed to use the land. It was described as a license, because even it had been a tenancy, it would have been outside the protection afforded to agricultural tenancies. o The agreement limited Graham's used of the land to grazing or mowing for a certain period of time, and only for sheep, cattle and horses. It was specified that any other grazing after the set period of time would have been a new and distinct contract. - After the first written agreement came to an end, no other agreement was entered into. This was because Pye had been advised that it would be best to recover the land, seen the possibility of a development, so Pye required Graham to vacate. o Graham, becoming the squatter, appealed against the ruling that the possession of 25 hectare of agricultural land belonged to Pye (who was the original freehold owner of the land) Pye had permitted Graham to occupy the land for grazing purposes following their first agreement. When the agreement had expired, Pye declined to renew it and asked Graham to vacate the property, however Graham was permitted to take a cut of hay (after there was no renewal of the agreement) and continued the occupation and use of the land, even though he lacked Pye's permission. o The judge held that Graham was in factual possession, with the necessary intention to possess the land with the effect that Pye's title had been extinguished. • It was held that the question to be posed was that of whether the squatter had dispossessed of the paper owner of the land by ordinary possession for the relevant period of time in the absence of the consent of the owner. In order to be in possession of land the squatter had to exercise the (1) necessary degree of physical custody and control and to (2) show an intention to possess the land. The squatter had (3) to intend to exclude the world at large, including the paper title owner so far as was reasonably practicable. The requisite degree of physical control was dependent, also on the nature of the land and the manner of its usage. It was also necessary to demonstrate that the squatter had been treating the land in the manner of an occupying owner and that no other individual had done so. It was immaterial that the squatter would have been willing to pay to occupy the land if requested to do so. Furthermore, it was not necessary to demonstrate an intention to own or acquire ownership of the land, but the intention to possess sufficed. In the instant case, the judge had been correct to conclude that Graham had established possessory title to the land - It is clearly established that the taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter: Slade J claimed that the words "possess" and "dispossess" were to be given their ordinary meaning.

RECAP: LIMITATION ACT 1980 SCHEDULES AND SECTIONS

Schedule 1, paragraph 1: refers to factual possession commencing with dispossession and discontinued - RAINS v BUXTON (establishes the difference between dispossession and discontinuance) - Possession must be open and not concealed: section 32, Limitation Act 1980. - Acknowledgement of title: sections 29-31, Limitation Act 1980 (resets the clock, and time starts to run again) - The right of action can be exercised only when adverse possession is taken of the land: schedule 1, paragraph 8, Limitation Act 1980 - The Law will NOT imply a license: schedule 1, section 15(6), paragraph 8(4), Limitation Act 1980. Although this provision expressly states that the law will not imply a license, this provision does not prevent the court form finding that there is an implied license "where such a finding is justified on the actual facts of the case", however, "there must be some overt act (which may be non verbal communication) which is intended to be understood and is understood as permission to do something which would be otherwise an act of trespass. - Unregistered Land: Extinguishing of title of paper owner by a squatter once adverse possession has been claimed: section 17, Limitation Act 1980 - Registered Land, under LRA 1925: the title of the paper owner will not be extinguished, but rather will be held on trust by the owner for the person (squatter) who has acquired the title, section 75(1), Land Registration Act 1925. o After 12 years the original paper title owner holds the title on statutory trust for the squatter who has acquired new equitable rights, and is subject to the right to have the register rectified in his name o Section 70(1), Land Registration Act 1925: "overriding interest". - Registered Land, under LRA 2002: the notion of the limitation period in LA 1980, section 15 disapplied where the land is registered - section 96, LRA 2002: the limitation period was therefore no longer applicable.

What does section 15 of the Limitation Act 1980 (which gives a time frame within which the paper owner can act and establishes a relativity of title in favour of the paper owner?)

Section 15 of the Limitation Act 1980 shows that 1. A claim to ownership of land is relative and not absolute 2. The relationship between ownership and possession 3. Possession for a period may stop a previous owner from reclaiming the land (limitation factor)

Statute: Limitation Act 1980 - section 15 (time limitation allowed to take action) - time limitation creates a relativity of title (who has the best claim to the property)

Section15 (1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. 1) Mark purchases a property validly - with title deeds (if it is an unregistered land) or as a registered proprietor under LPA 1925 (if it is a registered land) of a freehold/fee simple estate. 2) Sharon then moves into the empty property 3) Sharon moves out after two years, and Ian moves in immediately Who has the best claim to the property and why? - Each person has a relatively stronger claim to the claim than the previous person: the earliest claim (in this case Mark's) would be the strongest. - Mark (the original owner) has 12 years (know as the limitation period) to claim the land back from Ian (the newest owner) (notion of limitation period contained in the Limitation Act 1980, section 15) o After the limitation period has passed, Mark looses his right to reclaim the ownership - his claim to his own land now becomes barred.

Cases that establish factual possession even though it is not through a fence or enclosure

TREOLAR V NUTE: Grazing cows and storing timber on the land was held to amount to factual possession. REDHOUSE FARMS v CATCHPOLE: Shooting over marshy ground was held to be sufficient factual possession. WALKER v BURTON: Posing notices and granting licences to shoot over open moorland was held to constitute possession. o ROBERTS v SWANGROVE ESTATE: it was held that in appropriate circumstances fishing could constitute an act of possession and control - for example the granting of shooting and fishing licenses, collecting payments under the license and substantial dredging of the river bed. PORT LONDON AUTHORITY v ASHMORE: Mooring a boat continuously in one place was held to be sufficient to demonstrate factual possession of that part of the river and the river below it.

The squatter MUST show he gained possession with the intention to possess (animus possidendi) (second requirement to claim adverse possession) (+ case establishing that intention to possess adversly is valid, not if you believe to possess the land)

The fact that a person enjoys factual possession of the land, adverse to the owner is not itself sufficient to entitle him to defeat the owner's title: he must demonstrate that he possessed the land with the requisite intention. o This requirement is also known as "animus possidendi": it was historically thought that the necessary intention was an intention to own the land. o HOWEVER in Pye v Graham, the HoL categorically held that there was no need for a squatter to demonstrate an intention to own the land, in order to gain title by means of adverse possession, what was needed was that there was a demonstration of an "intention to posses" the land. Lord Browne-Wilkinson explained: the word possession has its ordinary meaning in the Limitation Act. It is clear that at any given moment, the only relevant question is whether the person in factual possession also has an intention to possess: if a stranger enters onto the land occupied by a squatter, the entry is a trespass against the possession of the squatter whether or not the squatter has any long term intention to acquire title. CLOWES DEVELOPMENT v WALTER: If a squatter believes he enjoys the possession of the land by virtue of law (so by a lease or a licence), the he does not have the necessary intention to possess.

General rule of the appropriate degree of physical control being fencing or locking (you always have to look at the intention)

The general rule is that fencing or locking gates would be considered factual possession and a clear intention to keep the rest of the world out (Seddon v Smith// Buckinghamshire CC v Moran), however, in order for a fence to constitute valid factual possession you also have to look at the intention.

Part of the second requirement (the need to demonstrate the intention to possess) is that there must be be the intention to exclude the world at large (the squatter needs to show intention to possess, so he has to exclude the paper owner - he must also show intention to possess now, not acquire permanent ownership)

The requisite intention to possess will be demonstrated by an intention on the part of the squatter to exclude the world at large, including the paper owner in as so far as it is reasonably possible. o This notion was introduced by SLADE LJ in POWELL v MCFARLANE and approved of in PYE v GRAHAM - It will more easily be established where the squatter has enclosed the land so as to prevent the paper owner exercising access. o In Buckinghamshire CC v Moran, the CoA took the view that the fact of physical enclosure of the land indicated "itself prima facie the requisite animus possidendi (intention to possess)". A squatter's willingness to leave or pay rent may not matter to establishing intention: the willingness to pay rent or leave does not destroy his intention to possess.

Possession must be open and not concealed, SECTION 32, LIMITATION ACT 1980 - Section 32 of the Limitation Act 1980 provides that any action of the possessor which were fraudulent or deliberately concealed from the owner do not cause the limitation period to run until the owner discovered or should have reasonably discovered the fraud and concealment.

This requirement means that the period of adverse possession cannot start running against the true owner where he would not have been able to observe that the land was being possessed (so in the case possession is concealed) case: WRETHAM v ROSS

Three requirements to prove intention to possess (animus possidendi)

To prove intention, a squatter must show: 1. Evidence of making use of the land for oneself, 2. Knowing there is a "true owner" is irrelevant, and 3. Blocking the normal mode of entrance. - Fencing and locking gates in Seddon v Smith would constitute intention and in Buckinghamshire v Moran the fencing would be considered factual possession and intention to keep the rest of the world out.

HOWEVER there are cases when fencing does not amount to being sufficient factual possession

Where the land was previously open ground, fencing is strong evidence of factual possession, it is neither indispensable nor conclusive. o Also, in some cases, fencing has been held insufficient, for example if the fence was erected only for 24hours, or for the purpose of preventing a senile family member from straying.

Contrastingly, if a squatter is in the occupation of the property with the consent of the owner, he is NOT in adverse possession

establishing case: CLOWES DEVELOPMENT v WALTER - If a squatter believes he enjoys the possession of the land by virtue of law (so by a lease or a license), the he does not have the necessary intention to possess.

RECAP: Effects are different depending on what type of land it is (effects being the limitation period)

the effect of satisfying these requirements is different depending upon whether title of the property is - Unregistered land: once the squatter can show he has been in adverse possession for 12 years, the original paper owner cannot recover the title to the land: Limitation Act 1980, section 15 (if it is a crown land, the limitation period is 30 years, while it is a foreshore, the limitation period is 60 years). - Then, the original paper owner's title is extinguished: Limitation Act 1980, section 17. - The squatter's title arises from his possession: he does not get a statutory conveyance of the original paper owner's title (so this means there might be at one point, more that one estate existing on that property) o As the squatter is not the purchaser/ transferee, his title to the property is subject to pre-existing rights (i.e. easements) o The squatter can then apply for the registration of the title under the LRA 2002 (once the squatter's title has arisen for his possession, even though he does not get a statutory conveyance of the original paper owner's title). - Registered and the LPA 1925 applies: Establishing elements of a claim to adverse possession depends on the same case as unregistered land (Colchester BC v Smith) and the Limitation Act 1980, however, section 15 NOT 17. - Section 15 implies that the limitation period for adverse possession to occur on a registered land where the LPA 1925 applies, is 12 years. - Effect of a successful claim: in registered land, unlike in unregistered land, section 17 does not apply - this means that the original paper owner's title is not extinguished. o However, section 75(1) LRA 1925 applies: after 12 years, the original paper owner holds the registered title on statutory trust/bare (the paper owner now holds the title on trust, his title is not extinguished as with section 17 of LA 1980 for unregistered land) for the squatter (the squatter acquires new equitable interests) and it subject the squatter's right to have the register rectified, meaning that there is parliamentary conveyance of the paper owner's title to the squatter. - Registered and the LRA 2002: the 12 year limitation period that was introduced for registered land under the LRA 1925, under section 15 of the LA 1980 was disapplied in registered land under LRA 2002, section 96: technically the limitation of action is no longer applicable. - So if even if a squatter is in adverse possession of a land for 40 years, he does not acquire ownership rights BUT after 10 years of adverse possession, the squatter can apply to the Land Registry to be registered as the owner, schedule 6, paragraph 4. This replaces adverse possession with the right to apply to become registered owner - Registry gives notice to the original paper owner (the registered owner) that the squatter wants to be registered as the actual owner, but the original paper owner has the right to object: schedule 6, paragraphs 3 and 5 - What is the original owner of the paper title fails to object in time? The squatter, through schedule 6, paragraph 4 has applied to be registered as the actual owner, and so will be registered. - If the original paper owner objects (so does not want the squatter to be registered as the owner of the land using schedule 6, paragraphs 3 and 5) but fails to evict the squatter within two years, if the squatter re-registers after 2 years the land registry would later register the squatter as the owner (again because of schedule 6, paragraph 6)