PROPERTY LAW

ADVERSE POSSESSION
PROBLEM QUESTION

Q.1 In 2005, Steve started to develop a nature centre on several acres of derelict
land by a stream. He cleared the bed of the stream, encouraged marsh plants to
grow by the water’s edge, planted trees and built shelters for wildlife. He drained
the higher land and built a café for visitors. From 2007, he started charging for
entry, although the land on which the nature centre is built would make it very
difficult to fence it. In 2014, solicitors acting for Angela, a wealthy recluse, who
lives in a neighbouring house and has registered title to the land occupied by
Steve, wrote to him, stating that he was trespassing on her land. Angela told
Steve that she intended to build a small house on the land he is occupying for her
carer to live in, but that this would be in the future. At present, she had no use for
the land and would be happy to grant him a lease of it. Negotiations began
between Steve and Angela, but they failed to reach any agreement.
In 2016, Angela transferred the title to her house and to the land occupied by
Steve to her son, Mark, although she continues to live there. It is now 2017, and
Mark’s solicitors have written to Steve, asking him to vacate the land as soon as
possible. Steve seeks your advice.

Advise Steve on whether he might claim title to the land, and the procedures that
he would have to follow.

Ans: Adverse possession, albeit it lacks a legal definition, is defined as the holding of
land that is incompatible with the genuine owner's title and hence amounts to a denial of
that title. Powell v. McFarlane (1977), which emphasized that there is a presumption
that the owner of the land with the paper title is in possession, established that the
burden of proof in any action based on adverse possession is on the squatter to
establish both factual possession (corpus possessionis) and intent to possess (animus
possidendi). These will be looked at in more detail later, but it is important to note right
away that, as the land's title has already been recorded, a minimum of 10 years of
adverse possession must have occurred in accordance with the Land Registration Act
of 2002 (LRA 2002). Assuming Steve's occupation started when he started developing
the land in 2005 and continued in 2007, all of his actions fell within the 10-year window.

Whether these actions qualify as factual possession is in dispute. In 2005, he cleared

Here, it is suggested that Steve's actions demonstrate that, with the exception of fence,
he has managed the property as the owner. Steve claims that fencing the area would be
quite challenging. Although Steve charges for admittance, it seems that access cannot
be entirely barred, as Slade J noted in Powell v. McFarlane. "The closing or blocking of
the only means of access" is clear evidence of establishing control. In Red House
Farms v. Catchpole (1977), CA, Cairns LJ stated that "the authorities make it clear that
what constitutes possession of any particular piece of land must depend upon the
nature of the land and what it is capable of using for." Nevertheless, Steve undoubtedly
would have fenced the land if he could have because of the nature of the land. Also, it is
implied that Steve has the desire to possess. This indicates that, as mentioned, the
purpose to keep everyone else out and the actions taken to demonstrate true
possession, along with the fact that Steve obviously would have walled the land if he
could have, are adequate proof of this.

Is Steve's claim impacted by his and Angela's discussions on the granting of a lease,
assuming that both of these criteria are met? This occurred in 2014, and Steve did not
have the necessary 10 years of adverse possession at that time. According to the
argument, since the negotiations did not actually result in the grant of a lease, they only
amounted to Steve acknowledging Angela's ownership. Furthermore, as the House of
Lords held in J.A. Pye (Oxford) Ltd v Graham (2005) ECHR 921, HL, possession rather
than ownership is what is necessary. Steve could not have obtained title by adverse
possession if a lease had actually been granted because he would now be a tenant of
Angela's. This is because, as Ousley J noted in Best v. Chief Land Registrar [2014],
adverse possession involves "possession as of wrong," and as a tenant, Steve's
possession would not be "as of wrong." If Steve can make a claim, it is also pertinent to
Angela's continued intention to use the land in the future because his claim is based on
possession rather than ownership. The Court of Appeal ruled in Buckinghamshire CC v.
Moran [1989], CA, that the hostile possessor's intention, not the paper owner's, was at
issue. Hence, Steve's claim won't be hindered by Angela's intended use for the property
in the future.

If Steve makes a claim, the fact that Angela is a recluse and might not have taken
action to have him removed is irrelevant to his claim; the only factor that could affect it is
if Angela had a medical condition that amounted to a mental disability and prevented
her from making decisions regarding a real application by Steve to be registered as
proprietor (Schedule 6, Paragraph 8(2) of the LRA 2002). If Mark purchased the cottage
from Angela in 2016, he would be obligated to uphold the interests listed in Schedule 3
to the LRA 2002 since he is a purchaser8 under Sections 29 and 30 of the LRA 2002
and the title to the property has already been registered. One of these is a person's
interest in their actual occupation, as Steve does. But Mark won't be obligated if he
didn't know about the interest at the time of the disposition or if it couldn't have been
found via a reasonable search of the property (Sched. 3, Para. 2). But, given the
information provided and in particular the fact that Steve had built a café on the
property, Mark should have known his occupation and will be held accountable for it.
Mark, however, is a donee and might have had the land given to him without regard as
he is Angela's son. As a result, he is bound by any land rights, including those that
Steve is now acquiring through adverse possession (s.28 of the LRA 2002).

In conclusion, Steve is able to submit a registration application, and after receiving it,
the Registrar is required to notify Mark, who is the registered proprietor (RP), as well as
a number of other parties, such as the owner of any registered charge over the
property. If Mark doesn't reply in 65 working days, Steve has the right to be listed as the
estate's owner. If Mark serves a counter-notice, the matter will be handled in
accordance with Schedule 6, Paragraph 5, and Steve's application will be denied unless
he can show that he falls under one of three unique conditions. From this day forward,
Mark has two years to file a possession claim. In actuality, none of the three categories
of exceptional conditions apply to this situation.

Q.2 For many years, Fred had used a field, Blackacre, under annual grazing
licences, granted by Mike, the registered leasehold proprietor of the field. Mike
held a 99-year lease and the freehold title is held by Robbie. In 2000, Fred wrote to
Mike to request the renewal of the licence. He also asked whether he might use
the land more extensively than before. Fred received no reply. In the meantime,
he did indeed use the field more extensively and he also replaced some of the
boundary fences and the old gate. In addition, Fred owned another field,
Whiteacre, that adjoins Mike’s land. When he bought Whiteacre in 2002, the seller,
Teresa, told him that there had been a previous boundary dispute between her
and Mike but that, as Teresa had heard nothing from Mike for some time, Teresa
assumed that Mike was ‘happy with the situation’. It is now 2017.
(a) Fred wishes to make an application under the Land Registration Act 2002 to
be registered as leasehold owner of Blackacre.
(b) Mike has put boundary posts on Whiteacre, but Fred says that some of the
land they enclose belongs to him.

How, if at all, would your answer differ if title to the land was unregistered?
Ans: (a) On a field where Robbie now has the freehold title and Mike is the leaseholder
under a 99-year lease, Fred is claiming to be registered as the leasehold proprietor.
First, we'll talk about Fred's claim against Mike's leasehold title, and if Fred wins against
Mike, we'll talk about what that means for Robbie as the freeholder. The situation if the
land title is unregistered will be addressed later. In Powell v. McFarlane (1977) 38 P &
CR 452, Ch D, it was emphasized that in any action based on adverse possession, the
burden of proof is on the squatter to establish both: (a) factual possession (corpus
possessionis); and (b) intent to possess (animus possidendi).
According to the Land Registration Act of 2002 (LRA 2002), the required duration of
adverse possession is a minimum of 10 years as soon as the land's title is recorded.

Fred had annual grazing permits when he first owned the land, therefore there is no
need to worry about adverse possession because he was there with the owner's
consent and his presence did not conflict with Mike's title (J.A. Pye (Oxford) Ltd v.
Graham [2002], HL). Since Fred's license expired in 2000, any period of adverse
possession will have started then. In Powell v. McFarlane, Slade J. concluded that the
adverse possessor must use the property as an occupied owner in order to demonstrate
factual possession, and he noted that this is clearly demonstrated by "the locking or
blocking of the only means of entry." Here, Fred's factual possession is shown by his
increased use of the land and by the replacement of some boundary walls and the old
gate.

After ten years of possession, Fred may file for registration; in this case, he may have
17.4 years. Both Mike, the registered leasehold proprietor, and Robbie, the registered
freehold proprietor, must receive notice of the application from the Registrar. Mike has
two years from the date of Fred's application to begin possession proceedings, unless
Fred can show that he falls under one of the three special circumstances listed in
Paragraph 5(2) of Schedule 6 to the LRA 2002, none of which apply. Both parties may
respond within 65 working days by serving a counter-notice. According to section 15(1)
of the Limitation Act of 1980, the period of adverse possession is 12 years if the title to
the land is unregistered, and Fred has met this requirement. Fred will then need to
submit an application to be registered as the owner of the field because the standards
for factual possession and purpose to possess are the same as for registered land. As
Mike or Robbie cannot complain, Fred is likely to take over as the registered owner
because there are no provisions for them to do so.

Fred will be listed as the new owner of the leasehold estate if Fred is successful in his
claim (Sched. 6, Para. 1 to the LRA 2002). Hence, Fred's registration as the new
leaseholder has no effect on Robbie's freehold title. By virtue of the LRA 2002, Fred is
made the assignee of the lease and is subject to all covenants and other duties therein
(Schedule 6, Paragraph 9(2) of the LRA 2002). After Mike's lease expires, Fred can
start a new term of adverse possession against the freehold title if he wants to accede
to the freehold. This is provided that Robbie or his successor in title does not take any
action to renew Mike's lease or to evict him. If the title is unregistered, the position is
changed. Although Fred is entitled to possession for the rest of the lease period, there is
no statutory assignment of the lease in this case. As a result, Mike will continue to be
liable under the lease (St Marylebone Property Co. Ltd v Fairweather [1963], HL), and
Robbie and Fred have no privity of estate. Hence, they are unable to make claims
against one another directly. Naturally, given that he no longer has ownership, it is
entirely possible that Mike may fail to pay the rent to Robbie. In this case, Robbie will
have the right to take legal action against Mike, such as forfeiting the lease, which will
put an end to Fred's rights. Additionally, if Fred violates any of the lease's terms, Robbie
may take action against Mike rather than him, and the lease may be voided as a result.
Additionally, Mike is unable to request relief from forfeiture because he is not a tenant.

Robbie might not be thrilled that Fred has taken ownership of the property, the rent
might be low, and Mike might still be making payments, making it impossible for Robbie
to act now to break the lease. In St Marylebone Property Co. Ltd v. Fairweather, it was
decided that the tenant could give up the lease to the freeholder, who would then have
the right of immediate possession. Accordingly, if Mike gave the lease to Robbie,
Robbie could then go after Fred for possession because Mike had given up the lease,
making Fred a trespasser. It is unclear exactly what the evicted tenant must give up. In
St Marylebone Property Co. Ltd v. Fairweather, the House of Lords made a distinction
between the tenant's estate in the land, which he could still hold, and his title to the
leasehold estate, which the squatter had defeated. However, this seems like a very
subtle distinction.

(b) Due to the boundary dispute between Fred and Mike, Fred may submit a registration
application to become a leasehold owner under Schedule 6's Paragraph 5(4) of the LRA
2002. This calls for the applicant (or any predecessor in title) to have had a reasonable
belief that the land to which the application relates was his for at least 10 years of the
period of adverse possession ending on the date of the application. The day before the
start of the proceedings is the date used to decide the issue of reasonable belief,
according to section 98 of the Land Registration Act of 2002. If so, the applicant may
submit a single registration application. In this case, Fred's conviction is dated 2002, or
15 years ago. In Zarb v. Parry (2011), it was determined that the owners' conviction that
the land belonged to them was nonetheless reasonable since, despite being aware of
the existence of a border dispute at the time of their purchase, they believed it had been
settled. According to Fred, his belief was justified because Teresa had said that Mike
was "comfortable with the situation." In IAM Group Plc v. Chowdrey [2012], it was
decided that it might be reasonable in these situations to ask your solicitors whether a
boundary dispute had occurred when you buy the land. In this case, Mike could contend
that Fred should have checked when he bought the land in response to Fred's claim. If
the title wasn't registered, Fred could just obtain it by virtue of 12 years of possession.