839334
| Question | Answer |
| possessory approach to land tenure | historically a question of right, to be answered by evidence of royal grant, charters, descent or the formalities needed to transfer seisin from one holder to another where evidence is lacking possession has always been regarded as clear evidence of right |
| modern justifications of possessory approach | - keep land in circulation and promote use - to ease problem of proving title to land - to prevent hardship to those who act in good faith on mistakes as to boundaries |
| ECHR protocol article 1 | peaceful enjoyment of our possessions |
| two aspects of possession | factual possession (factum possessionis) the intention to possess (animus possidendi) both must be proven |
| Powell v McFarlane (1979) | there does not seem to be the necessary intention but did succeed on the factual basis |
| factual possession | must deal with the land, to the exclusion of others as an occupying owner might be expected to do varies according to the nature of the land e.g. a dwelling should be occupied a vineyard should be cultivated |
| possession | 'possession in the ordinary sense of the word' must be exclusive |
| Buckinghamshire county v moran [1990] | possession |
| J.A. Pye v Graham [2003] | written agreement = a license to use the land he had adversely possessed the land after he was asked to leave |
| the adverse nature of possession | throughout the relevant period possession must be without the paper owners permission whether in the form of a license or of a lease/tenancy |
| BP v Bucker (1988) | possession no longer was adverse once Mrs Buckler received the letters it was a licence |
| Leigh v Jack (1879) | squatters possession of land was only adverse if his occupation was inconsistent with the owners plans for the land. this principle is no longer followed |
| Pye | rejected principle in Leigh v Jack so just because possession is not adverse does not affect the claim |
| limitation period in unregistered land | 'old rules' LA 1980 as applied to registered land before 2003 by LRA 1925 limitation period is 12 years completion of 12 yrs continuous adverse possession bars the paper owner from suing to recover possession and extinguishes his/her title |
| limitation period old rules in registered land | 12 years adverse possession is completed before October 2003 the registered proprietor cannot sue for possession. the land is held in trust for the squatter until the squatter is registered as proprietor |
| Macfarlane | Hopkins "reality is given preference above formal ownership" |
| s 15, 17 limitation act 1980 | adverse possession in unregistered land new system |
| nature of title during the 12 years | the period merely prevents the original landowner from bringing a claim against the adverse possessor from the moment the squatter possesses the land he has an estate in fee simple it does not matter whether the adverse possession was against the freehold owner or a tenant |
| third party interests | the adverse possessor acquires the land subject to all encumbrances whether they have been registered or not |
| adverse possession registered land where the period is completed after October 2003 | a squatter who completes a period of 10 years adverse possession becomes entitled to apply for his/her own registration as proprietor in the existing proprietor's place |
| process of adverse possession registered land | On the squatter’s application: - HMLR notifies the existing registered proprietor (and other affected parties, e.g. mortgagees) - If the registered proprietor lodges no counter-notice the squatter is registered as proprietor - But the existing registered proprietor can lodge a counter-notice unless the squatter shows (Sch 6 para 5) - that the registered proprietor is estopped - that the squatter has some other right to the land (e.g. as devisee by will), or - that the land adjoins other land of the squatter who has for the last 10 years reasonably believed the land to be his, due to a boundary mistake |
| lodging counter-notice | On the lodging of a valid counter-notice - the squatter’s registration is halted - if the squatter remains in adverse possession for a further 2 years from the application date, he/she is entitled to be registered as proprietor - but the existing proprietor, warned by this process, is likely to end the adverse possession - by eviction, with or without court proceedings - by a unilateral express licence (see above), or - by negotiated agreement |
| s96-97 LRA 2002 schedule 6 para 1,2,5,6,7,9 | adverse possession in registered land |
| why do we allow adverse possession? | - relativity of title - avoids uncertainty when investigating title is a long and complex task - stabilisation of title - keeping land from going stale - land stewardship e.g empty homes - landowner's fault |
| Law commission (1977) | protect defendants from stale claims |
| Law com 271 2001 | ‘the doctrine of adverse possession runs counter to the fundamental concept of indefeasibility of title that is a feature of registered title' |
| Pye v UK (2005) | Chamber found a breach of Art. 1, Protocol 1 that Pye had been deprived of their possession bc inter alia there was no advance notice & no compensation |
| Pye v UK (2007) | Grand Chamber found no breach or Art. 1 bc held it was a ‘control on use’ rather than a deprivation. Limitation periods and their consequences are a legitimate statutory device, common throughout Europe. Compensation is not required. |
| article 1, protocol 1; ECHR | peaceful enjoyment of his possessions |
| Pye v Graham first instance | court finds Graham in possession and in adverse possession from 1984 so Pye can no longer bring an action to recover the land in 1999 |
| Pye v Graham Court of Appeal | CA found that Graham did not have intention to posess Pye had not been dispossessed of the land CA also found the principles of adverse possession did not infringe ECHR |
| Pye v Graham House of Lords | reverse court of appeal and found in favour of graham not an intention to own but to possess which the grahams established |
| Beaulane properties v palmer | BP argue the law (pre LRA 2002) contrary to art 1, no public interest and in any event deprivation of title would be a disproportionate response |
| Beaulane properties v palmer Nicholas strauss QC | 'the pre 2003 law caused hardship to the registered owner, and gives unwarranted windfalls in favour of undeserving land thieves.' |
| Ofulue v Bossert | Pye should be followed. - Beaulane not expressly overruled - But Ofulue v Bossert shows Court of Appeal approach based on Pye not Beaulane - Law of adverse possession in registered land pre LRA 2002 does not breach law of human rights - Little scope to argue the law relating to adverse possession in registered land breaches the law on human rights. |
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