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IntroductionFor centuries, English law has recognised that possessing land adversely to the owner (i.e., without permission) gives rise to a claim to the land. We shall see that, odd as it may seem, the adverse possessor is viewed as having a fee simple at an early stage. This means that there are two fees simple for the same plot, one held by the original owner (the true owner) and the other by the adverse possessor. Initially, the fee simple of the true owner prevails and the adverse possessor can be evicted. However, until the 2002 Act the true owner lost his title after 12 years. After 12 years the land really did belong to the adverse possessor.
A simple example illustrates this. Richard owns a house and an adjoining paddock, which he uses for a pony. When Richard is sent abroad by his employer, he leases the house to Sally. The lease does not include the paddock, which is no longer used. Tamara
Main issues and rules: adverse possession
owns another house adjoining the paddock. Seeing that it hasn’t been used for a couple of years, Tamara incorporates the paddock into her garden. She fences it so that the only access is from her house and cultivates it as part of her garden. Fifteen years later, Richard returns. When he attempts to reclaim the paddock, he will discover that Tamara now owns it; his ownership has been extinguished and he has lost the paddock without compensation.
Adverse possession has long been regarded with a degree of suspicion – it can be viewed as a form of land theft, especially as the adverse possessor need not be in good faith. The law was revolutionised by the 2002 Act. Adverse possession has been rendered of very limited importance for the 90 per cent of titles that are registered. We shall see that, under the 2002 Act, adverse possession operates only if there is a boundary dispute between neighbours or the owner does not bother to assert his title when notified of a claim. Many cases before the legislation involved local authorities that had failed to evict trespassers. Their conduct was explicable because they own thousands of properties:
administrative inefficiency was the consequence of having overworked staff. Today, adverse possession would fail in such cases, as it also would in Tamara’s claim.
We now consider two core issues: what counts as adverse possession and what the effect of adverse possession is. The first issue is the same for both registered and un-registered land. However, the old law on the effect of adverse possession has largely disappeared in registered land: no longer are the true owner’s rights lost after 12 years’
adverse possession.1The 2002 Act is so important that we will consider it first.
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Adverse possession under the Land Registration Act 2002 Schedule 6 establishes a three-stage process: application by the adverse possessor (who we will call Sylvia), objection by the owner (who we will call Olivia) and further applica-tion by Sylvia.The flow chart illustrated in Figure 6.1 summarises the process described below.
Application by the adverse possessor
After ten years of adverse possession, Sylvia can apply to the land registry to be registered as proprietor (paragraph 1). Ten years is, of course, less than the traditional period of 12 years.
It should be noted that the ten years must be the ten years immediately before the application. It is common for disputes to arise when the owner ‘wakes up’ and retakes possession. Should Olivia retake possession, Sylvia is allowed up to six months to make an application.
The immediate effect of the paragraph 1 application is that the land registry notifies Olivia. Unless Olivia responds, paragraphs 3 and 4 provide for Sylvia to be registered as proprietor. This means that an owner who fails to express an interest in retaining the land loses it. If Olivia has no use for the land, adverse possession is justified because it enables the land to be used efficiently by Sylvia.
1 LRA, s 96.
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Adverse possession and fixtures
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Figure 6.1 Adverse possession under the LRA 2002
However, if Olivia has simply overlooked the adverse possession, then she can object to Sylvia’s application. We move to the second stage.
Objections by the owner
In most cases, an objection by Olivia will block Sylvia’s application (paragraph 5).
However, paragraph 5 provides for three circumstances in which Olivia’s objection fails and Sylvia will be registered as proprietor.
The first two are situations in which adverse possession is not strictly necessary. They are included because the legislation sets up a convenient procedure for resolving disputes and it is useful to employ that procedure. The two situations are (i) where Sylvia will succeed because she has an independent right to register (perhaps under a contract to buy the land) and (ii) if she can assert an estoppel. An example of the latter would be if Olivia had encouraged Sylvia to build on the land on the supposition that she could keep it.
Much more interesting is the third circumstance. It applies when Olivia and Sylvia are neighbours. If Sylvia reasonably believed that the disputed land belonged to her, then she can overcome Olivia’s objection and get herself registered. This is the only true example of adverse possession operating under paragraph 5. It is clear that this has limited application: the great majority of adverse possession claims under the previous law would fail at the second stage.
Why does the 2002 Act allow adverse possession in the third circumstance? The rea-son is that boundaries on the ground are frequently different from what appears in plans.
This may be because the plans were inaccurate to start with (common in new building developments) or a previous owner established the physical boundary in the wrong place. Especially when a purchaser has bought land on the reasonable assumption that
Main issues and rules: adverse possession
it includes the disputed area, it seems appropriate to recognise the position on the ground as it has existed over a lengthy period.
Further application by the adverse possessor
Suppose that Olivia has objected to Sylvia’s application and Sylvia is unable to establish any of the three circumstances for her to be registered. That is not the end of the matter:
Olivia must take steps to evict Sylvia. Unless Olivia has taken proceedings within two years, paragraph 6 permits Sylvia to make a further application to the land registry. This time Sylvia will automatically succeed and be registered as proprietor. The policy is to protect only those owners who really want to recover their land. If Olivia takes proceedings within the two-year limit, she can be sure of recovering her land. Otherwise, efficient land use points to Sylvia’s being the best person to own and manage the land.
Overall, it can be concluded that adverse possession will apply only in situations in which either the owner cannot be bothered to take action (despite notification by the land registry) or boundaries are disputed. The latter, of course, requires Sylvia reasonably to believe that the land is hers. Are there any circumstances in which Olivia could justifiably feel aggrieved by a successful adverse possession claim? One example will be considered.
Adverse possession may succeed because a land registry notification has not reached Olivia. This may happen if she has moved from the relevant property and has not notified the land registry of a new address. If she never receives the notice, no objection can be lodged and inevitably Sylvia will be registered as proprietor. Depriving Olivia of ownership without compensation could be seen as draconian. She might be able to claim rectificationof the register under statutory powers under the registration scheme,2but there is no authority on this.
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When is there adverse possession?Adverse possession, as described in this section, must be proved before a claim can be brought for either registered or unregistered land. There is a mountain of authority, though much of it is specific to the facts of the particular case. Indeed, most of the really difficult questions have become obsolescent now that the effects of adverse possession have been heavily restricted by the 2002 Act. This justifies a relatively short discussion of the principles.
There are three essential ingredients in proving adverse possession. There must be acts of possession, there must be an intention to possess and the possession must be adverse (without consent).
Possession
Not every act of trespass counts as possession. There must be the sort of conduct that indicates an ownership claim by the adverse possessor. Taking over a house and living there would plainly suffices. Many cases involve farmland. This can pose more difficulties, as it can be used for a range of activities. One useful test is whether the claimant has
2 See p. 120, below.
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Adverse possession and fixtures
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fenced the land. Fencing is not essential, but it is a strong indicator that the claimant is asserting ownership by excluding everybody from the land.
The nature of the land is also important. Some land is barely suitable for any use, per-haps because it floods frequently. In Red House Farms (Thorndon) Ltd v Catchpole,3the claimant had been shooting over an island in a river. Such conduct would not normally suffice as adverse possession: more would be expected of somebody asserting owner-ship. However, the island was of little or no use for agricultural purposes and adverse possession succeeded – shooting was as much as could be expected.
Cases where people boldly go on to a stranger’s land and start using it as their own are relatively few. More often, land isn’t being actively used by the owner and the adverse possessor (often an adjoining landowner) begins to use it in minor ways. Over the years, the use increases. The influential decision of Slade J in Powell v McFarlane4 provides a good example. The claimant, aged 14, lived with grandparents who were farmers. Close to them, the defendant owned a field which was poor agricultural land and unused apart from some Christmas trees on it. The claimant began to cut and remove hay from the field. After making limited repairs to the fencing, he began to graze the family cow Kashla there. In later years, he made more extensive use of the land in connection with his business as a tree surgeon, including erecting a noticeboard on it and storing wood and vehicles on it from time to time. Slade J held that the original activities were insufficient:
they showed trespass rather than a claim to ownership. It was possible that the later activities did constitute adverse possession, but they had not continued for the required period of 12 years. The fact that the claimant was aged 14 at the start made it more difficult to prove intention to possess at that time.
A final point is that any active use by the true owner is inconsistent with adverse pos-session. On the other hand, it does not matter if the claimant uses part of the land and the owner the rest: this is the typical scenario for boundary disputes.
Intention to possess
Intention to possess (sometimes encountered in its Latin form: animus possidendi ) is not found in the legislation. However, the courts have always treated it as an ingredient in determining whether there is sufficient possession, especially in circumstances where (as in Powell ) the facts do not clearly show possession.
The requisite intention will be easily shown where the claimant believes they have ownership. Land on a disputed boundary could provide an example – it might belong to the neighbour despite being on the claimant’s side of a fence. More difficult are cases such as Powell, where claimants know that the land does not belong to them. To require the claimant to show an intention to own would mean that they would have to intend to repel the true owner. Only the more outrageous cases of adverse possession would pass that test!
The modern test is that the adverse possessor must intend to possess the land to the exclusion of others: one reason why fencing the land is treated as so significant. Most
3 [1977] 2 EGLR 125.
4 (1977) 38 P&CR 452.
Main issues and rules: adverse possession
explicit is the Court of Appeal in Buckinghamshire CC v Moran,5 in which Slade LJ required ‘an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title’. It does not matter that the claimant accepts that any future assertion of rights by the true owner cannot be resisted. In Moran, the claimant had incorporated a vacant plot (being held by the local authority for a possible future road) into his adjoining land. Access by the local authority was originally though a gate in a fence, but the claimant used a lock and chain to prevent entry. The adverse possession claim succeeded.
Adverse
Consent by the true owner prevents possession being adverse. Problems are most likely to arise where consent has been given initially but it is claimed that it does not cover later actions, especially where use of the land by the adverse possessor has changed over the years.
This is illustrated by the leading recent authority on adverse possession: JA Pye (Oxford) Ltd v Graham.6Graham initially had a licence to cut hay and graze animals on a number of fields. When the licence expired, Graham requested its renewal, but Pye refused. Graham continued to use the land and, despite his further offers to continue the licence being ignored, began to make full use of it as if the owner. Pye had no access to the fields and made no use of them. The House of Lords held that the original licence had terminated and that from that time Graham’s use was adverse.
The true owner can stop time running by giving the occupier permission to remain there: this stops the possession from being adverse thereafter. It is particularly useful if the true owner wants to prevent adverse possession, but without taking immediate steps to evict the possessor.
Time also stops running if the possessor acknowledges in writing the rights of the true owner. This is a statutory rule, but even an unwritten acknowledgement might make it difficult to show the necessary intention for adverse possession.
In many of the difficult cases (including Powell, Moran and Pye), the owner had no present use for the land. This is most likely for unbuilt land with no significant farming value. It is relatively unlikely for buildings, unless they are awaiting demolition or redevelop-ment. Let us see how this operates. Suppose that Sylvia takes possession of Olivia’s land, in circumstances in which Olivia has no present use for the land. Olivia makes no objection: Sylvia’s cultivating the land or using it for storing things is likely to be seen as innocuous conduct that it is not worth objecting to. In these circumstances, Olivia may well be taken aback to be told that she should have evicted Sylvia and that her failure to act means that she has lost the land.
These arguments have at times impressed the courts. At one stage, it was thought that Olivia impliedly consents to Sylvia’s possession, such that it is not adverse. However, this rather artificial idea was rejected by the Limitation Act 19807 and need not be further
5 [1990] Ch 623.
6 [2003] 1 AC 419.
7 Schedule 1, para 8(4).
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Adverse possession and fixtures
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considered. More generally, there were a few indications that adverse possession simply could not apply if Sylvia’s acts were consistent with the future intended use by the owner.
The decisions in Powell, Moran and (in particular) Pye reject any special rule for true owners with no present use for the land. The tests for possession and intention to possess must be applied free from any artificial rules. If one can say that Sylvia is in pos-session and intends to possess (in the sense described above) then adverse pospos-session operates. Of course, if Sylvia intends to use the land on a purely temporary basis, it will be difficult for her to prove the necessary intention.
These cases simplify the law and may be welcomed for doing so. However, they also considerably widen the circumstances in which adverse possession can be proved. Is that good policy? We have seen that the 2002 Act set out to narrow the effect of adverse pos-session: a response to the criticism that adverse possession operates in an unreasonably wide manner. The claimants in each of these three cases would fail today, if title were registered. The real continuing significance of the cases is that they make it relatively easy to gain title by adverse possession in unregistered land.
The effects of adverse possession
We have already seen many of the effects of adverse possession when we investigated the provisions for registered land in the 2002 Act. However, there are additional points to consider.
Before adverse possession is completed
Suppose Sylvia is in adverse possession of Olivia’s land. After five years, Timothy dis-possesses Sylvia, so that he is now the adverse possessor. Assuming that Olivia is still taking no interest in the land, what rights does Sylvia have against Timothy?
The law treats Sylvia as having a fee simple from the beginning, though it is inferior to Olivia’s fee simple. It might be thought odd that two people have a fee simple in the same plot, but it illustrates the relativity of title accepted by English property law. It means that Sylvia can evict Timothy, whose claim is clearly inferior to hers (until he has been there for the full period for adverse possession).
When considering Olivia’s position, can we add together the periods of occupation of Sylvia (there for five years) and Timothy so that there is effective adverse possession against her once Timothy has been there for seven more years (five years under the 2002 Act)? If Sylvia had transferred her rights to Timothy, then the two periods could be added together. However, in our example Timothy took possession away from Sylvia. The unregistered land rule was that the two periods could be added together, but the 2002 Act requires Timothy to start from the beginning. The other rules mentioned in this section are unaffected by the 2002 Act.
After adverse possession is completed
For unregistered land, the title of the original owner is extinguished after 12 years. The adverse possessor has a new title (Sylvia’s fee simple as described above) and is not treated as the holder of the former owner’s title. In registered land, we apply the rules in the 2002 Act (the three-stage process). If the claim succeeds, the adverse possessor is simply registered as proprietor of the land.
Main issues and rules: adverse possession
Whether title is registered or not, the adverse possessor will be bound by all pro-prietary interests (such as easements) in the land. This applies whether they are legal or equitable and whether or not they are entered on the register.
Adverse possession operating against tenants
Suppose Norman has leased land to Olivia for 15 years. A year into the lease, Olivia is dispossessed by Sylvia. How does adverse possession operate after Sylvia has been there for 12 years? One initial point is that Norman is unaffected: adverse possession operates only against those whose interests are in possession. Time runs against future interests (including landlords) only when they are in possession. It follows that Norman can recover the land from Sylvia after the 15-year lease has ended.
Taking unregistered land first, Sylvia gets a new title: she does not obtain Olivia’s lease.
If she had obtained the lease, she would be treated as a tenant of Norman and therefore liable on the covenants in the lease. These results cannot apply to Sylvia because she has a new title; she cannot, for example, be liable for rent. This was established in the seminal decision in Tichborne v Weir.8Though the result appears inconvenient, it confers limited benefit upon Sylvia. Unless she complies with the covenants, Norman can termin-ate the lease by forfeiting it.9
Turning to registered leases, much more common today, the outcome is quite differ-ent. Sylvia will be registered as proprietor of the lease (rather than a fee simple) and will be able to sue and be sued on the covenants. This looks by far the simpler and most appropriate outcome.
Another problem arises after Sylvia has gained title by adverse possession. Can Olivia surrender the lease to Norman, so as to bring it to an end? If she could do so, then Norman could rely on his fee simple (now conferring immediate rights to the land) to recover the land from Sylvia. The main problem is whether Olivia has a lease to surrender after adverse possession is complete. We will start with the position for unregistered land.
The House of Lords in St Marylebone Property Co Ltd v Fairweather10grappled with the problem. To solve it, the status of the lease after the completion of adverse posses-sion had to be ascertained. It could not be said to be held by Sylvia, as Tichborne estab-lishes that the adverse possessor has a new and different title. It might seem attractive to treat the lease as destroyed by adverse possession. Unfortunately, that wouldn’t work to Sylvia’s advantage: it would enable Norman to take possession immediately. The only remaining possibility is for the lease to be extinguished as regards Sylvia (the normal effect of adverse possession), but to survive as regards Norman. That was the approach adopted by the House of Lords. They therefore concluded that Olivia could surrender the lease to Norman, whereupon Norman could recover the land. The result is widely viewed as odd, as Sylvia’s rights are taken away by the agreement between Olivia and Norman.
8 (1892) 67 LT 735.
9 Forfeiture of leases is considered in Chapter 14.
10 [1963] AC 510 (Lord Morris dissented).