PROPERTY LAW- ADVERSE POSSESSION AND FREEHOLD TITLE

ADVERSE POSSESSION — WHAT IS IT?

• often called ‘squatter’s rights’

• it is when someone gains rights over land by occupying it without the owner’s permission for a long period

Who is a ‘squatter’?

• A SQUATTER is a person who occupies land unlawfully, which can include buildings

Position before LRA 2002:

• land ownership was largely based on possession

• the law discouraged owners from neglecting their claims, meaning if someone occupied land long enough without being evicted, they could eventually become the LEGAL OWNER

What did The Limitation Act 1980 do?

• prevented the original owner from enforcing their title after a certain period

• it did NOT create a new title for the squatter, BUT it BLOCKED the original owner from reclaiming the land

LRA 2002 - significantly changed the rules for registered land, making adverse possession much harder

THREE KEY LEGAL FRAMEWORKS DEPENDING ON THE TYPE OF LAND AND THE DURATION OF POSSESSION:

1- Unregistered land

2-Registered land where possession lasted at LEAST 12 years BY 13 OCT 2003

3-Registered land where possession lasted LESS than 12 years BY 13 OCT 2003

UNREGISTERED LAND-

LIMITATION PERIOD

• Under section 15(1) of the Limitation Act 1980…

A person cannot bring an action to recover land after 12 years from when their right to claim arose

• this period applies even if the right first belonged to someone else

SPECIAL RULES APPLY:

THE CROWN- 30 years

FORESHORE CLAIMS- 60 years

After 12 years, the owner’s legal title is extinguished under SECTION 17 LA 1980

But, time limit may be extended if:

• the original owner is legally disabled

• can be postponed in cases of fraud, concealment, or mistake

BUT time stops running if the owner ASSERTS their rights or if the squatter ACKNOWLEDGES the owner’s title in writing

When does the Right to claim start?

• a claim can only start when land is in ADVERSE POSSESSION - meaning it is occupied without the owner’s permission

• starting point depends on whether the dispossessed person was a freeholder or tenant and whether the land was held on TRUST

FOR ADVERSE POSSESSION TO BE ESTABLISHED, TWO ELEMENTS ARE REQUIRED:

1- FACTUAL possession - physical control of the land

2- INTENTION to possess- an intention to exclude others, including the owner

How time runs in adverse possession:

• time starts running when possession becomes adverse, meaning:

• the owner has been DISPOSSESSED by another person, OR

• the owner has abandoned possession, and someone else takes over without a gap between the two occupancies

if the owner grants a license (even unilaterally, without the squatter’s agreement), this may prevent possession from being adverse

CASE…

BP Properties v Buckler 1987- a licence can deprive a squatter of the necessary intent to possess

this principle was upheld in SMITH V MOLYNEAUX 2016

Licensees and tenants at will CANNOT claim adverse possession, as they occupy with the owner’s consent

• time only begins running once their licence or tenancy ends (CASE)

• registered owner can still be in adverse possession of land OVERLAPPING with another registered or unregistered title (CASE)

• JA PYE V GRAHAM 2002, confirmed in Healey v Fraine 2023

• RASHID V NASRULLAH 2018

CHAINS OF ADVERSE POSSESSION

What happens if multiple squatters occupy land in succession?

• the 12 year period continues uninterrupted- as long as the possession remains continuous

What counts as possession?

if an owner abandons land, and a stranger takes control, it can count as adverse possession, even if the owner intends to use it in the future

• BUCKINGHAMSHIRE COUNTY COUNCIL V MORAN 1990

Key points- what counts as possession:

• Factual possession- requires physical control- mere occasional use is not enough

• it depends on the nature of the land and how land of that type is typically used ( Heaney v Kirkby 2015)

• the squatter’s intention to possess must be clear

• courts look at actions, not just words - POWELL V MCFARLANE 1979

KEY CASES ON INTENTION TO POSSESS:

PYE 2002

• The squatter must intend to exclude the owner and others as much as legally possible

• the owners intentions are irrelevant

KEY CASES ON INTENTION TO POSSESS:

BATT V ADAMS 2011

• fencing to keep animals in did not show intent to exclude others, so it did not count as adverse possession

KEY CASES ON INTENTION TO POSSESS:

HOUNSLOW LBC V MINCHINTON 1997

CHAMBERS V HAVERING 2011

• the motive for fencing is not always decisive - courts look at overall facts

Key Case Law on Factual Possession and Intention

• judicial decisions on adverse possession are highly fact-sensitive

  LAMBERTH LONDON BOROUGH COUNCIL v ARCHANGEL 2002

• the Court of Appeal ruled in favour of a performance poet who had acknowledged the local authority’s title

• padlocking a front door was deemed a clear demonstration of possession

Key Case Law on Factual Possession and Intention

BATTERSEA V WANDSWORTH 2002

• allowing others access to a bombed out pub site by giving them keys indicated a lack of intention to hold exclusive possession

Key Case Law on Factual Possession and Intention

SIMPSON v FERGUS 2000

• Acts that exclude the paper owner are essential: a mere declaration of intent is insufficient

Key Case Law on Factual Possession and Intention

PURBRICK V HACKNEY LONDON BOROUGH COUNCIL 2003

• the claimant secured a burnt-out building using a chain and padlocks, stored equipment, and protected tools with a tarpaulin

• despite the Council’s argument that he could have done more, this was deemed sufficient for possession

Key Case Law on Factual Possession and Intention

PALFREY V WILSON 2007

• a combination of acts, such as rebuilding a boundary wall, inserting a damp-proof course, and connecting the wall to a carport, amounted to unequivocal possession with intent

Key Case Law on Factual Possession and Intention

HEANEY V KIRBY 2015

• hardstanding for parking and gardening activities were sufficient for factual possession, even though others occasionally used the land

Key Case Law on Factual Possession and Intention

PORT OF LONDON AUTHORITY V PAUL MENDOZA 2017

• mooring a houseboat on the River Thames was insufficient to prove both factual possession and an intention to exclude others

Key Case Law on Factual Possession and Intention

THORPE v FRANK 2019

• permanently altering and repaving a triangular forecourt area was held to be adverse possession despite the land being part of an open plan estate where fencing was restricted

Key Case Law on Factual Possession and Intention

KING V THE INCUMBENT OF THE BENEFICE OF NEWBURN 2019

• locking church doors, which controlled access to a burial vault, did not amount to possession since the claimant had never physically entered or excluded the owners

Key Case Law on Factual Possession and Intention

AMIRTHARAJA v WHITE 2022

• gating and enclosing a passageway was deemed equivocal, as the acts were equally consistent with a right of way rather than an intent to exclude

EFFECT OF LAPSE OF TIME

• for Unregistered land, the expiration of the limitation period does not transfer ownership but extinguishes the paper owner’s title under SECTION 17 Limitation Act 1980

• Adverse possessor gains a legal estate rooted in possession - ASHER V WHITLOCK 1865

EFFECT OF LAPSE OF TIME

• adverse possessors can:

• create rights over the land

• sell the land

• apply for first registration under the LRA 2002 to solidify their legal standing

EFFECT OF LAPSE OF TIME

To register or sell the land…

• the adverse possessor must prove 12 years of continuous adverse possession to satisfy either a purchaser or the Land Registry

Stopping the limitation clock: permission, payment, and acknowledgement

• Permission from the paper owner - PREVENTS adverse possession

• even an informal or implied licence can stop time running

  CASE?

BP Properties v Buckler 1987

Stopping the limitation clock: permission, payment, and acknowledgement

• Payment for land

.. acknowledges the owner’s rights but stopping payments can start adverse possession

Stopping the limitation clock: permission, payment, and acknowledgement

• acknowledgement of title in writing …

PREVENTS adverse possession, binding both the acknowledger and their successors

Stopping the limitation clock: permission, payment, and acknowledgement (CASE)

• bringing possession proceedings alone does not stop time…

the action must be completed ..

• MARKFIELD INVESTMENTS V EVANS 2001

Stopping the limitation clock: permission, payment, and acknowledgement

• late acknowledgements are ineffective.. unless.. (CASE)

part of a genuine compromise - COLCHESTER BC v Smith 1992

Would allowing parties to contract out of limitation rules serve a useful policy function?

• courts have recognised negotiated agreements post-limitation as potentially binding, but should this principle be more broadly applied?

SUMMARY FOR UNREGISTERED LAND:

• key issue for adverse possession is whether the claimant has completed an uninterrupted period of 12 years use of land - which demonstrates both FACTUAL possession and the INTENTION to possess

• adverse possessor must NOT acknowledge the title of the paper owner, and will be bound by pre-existing rights in the land

• voluntary registration of the land under LRA 2002 will almost always defeat the squatter’s claim

• adverse possessor’s title is a new one- adverse possessor has a legal estate/ fee simple absolute in possession - demonstrating how holding an estate is distinct from having title to the land

• TURNER v CHIEF LAND REGISTRAR 2013

REGISTERED LAND WITH 12 YEARS’ ADVERSE POSSESSION BEFORE 13 OCT 2003

Mechanics of the Old (pre-LRA 2003) Scheme:

• before the LRA 2002, adverse possession in REGISTERED land did NOT extinguish the owner’s title

• instead, after 12 years of adverse possession, the registered proprietor remained on the register, but the squatter acquired an overriding interest

• this interest could be protected on the land register, and the registered title was held on statutory trust for the squatter under SECTION 75(1) of LRA 1925

UNDER LRA 1925.. a squatter could apply for registration after the 12 year period by making a statutory declaration and providing supporting evidence

• next steps?

• the Land Registry would then grant a new possessory title to the squatter, treating the application as a first registration

• this title remained subject to any interests in the land that had not been extinguished by adverse possession

ADVERSE POSSESSION AND HUMAN RIGHTS

• impact of adverse possession on HR has been examined extensively in case law, particularly concerning PROPERTY RIGHTS under the ECHR

• JA PYE LTD V GRAHAM 2001…

• COA rejected the argument that adverse possession violated the dispossessed owner’s rights under the HRA 1998

• the removal of title by limitation was deemed a legitimate condition of ownership under English law and not an interference with or deprivation of property

• the court acknowledged that adverse possession could interfere with the paper owner’s right of access to a court under Article 6 of the ECHR but deemed it justifiable given the time limits involved

• on appeal, the HOL did not address the human rights issue because the disputed facts predated the HR Act

Case later taken to ECHR in JA PYE V UK 2006…

• where the first instance court found that the deprivation of registered title under the Limitation Act 1980 and LRA 1925 breached ARTICLE 1 of the First Protocol of the ECHR

• this decision was based on the absence of compensation and procedural safeguards for the dispossessed owner

• however, the Uk Govt successfully appealed to the Grand Chamber of ECHR, which ruled 10;7, that the law on adverse possession under the LRA 1925 fell within the UK legislature’s margin of appreciation and did not violate the Convention

Principle reinforced in OFULUE v BOSSERT 2008..

• the COA confirmed that adverse possession does not violate HR and that the Grand Chamber’s ruling in Pye should be followed unless there were compelling reasons to depart from it

• important note: Pye focused on whether the pre-LRA 2002 regime struck a fair balance between the rights of the registered owner and the adverse possessor

CONTRAST- UNREGISTERED LAND, adverse possession has traditionally been seen as justifiable

• Applying the LRA 2002..

LRA 2002..

• reforms significantly reduced the risk of a registered owner losing their land without notice, reinforcing the view that adverse possession does NOT breach human rights

• another HR ISSUE: whether evicting an adverse possessor before they acquire title violates their right to a ‘home’ under Article 8 of the ECHR

• MALIK V FASSENFELT 2013- Alan Ward held that recovering possession is a proportionate means of enforcing property rights

REGISTERED LAND UNDER THE LRA 2002:

• how adverse possession works under the LRA 2002:

• LRA does NOT change the basic definition of adverse possession but significantly ALTERS its impact on the registered owner’s title

• KEY AIMS:

• KEY AIMS of the 2002 Act is that “adverse possession of land will never automatically bar the registered owner’s title” - Law Com 271

• Section 96 LRA 2002 achieves this by excluding the Limitation Act 1980 from applying to registered land

• A registered landowner cannot lose their title through adverse possession, except in certain situations outlined in the Act

KEY POINTS about the rules under the 2002 Act:

• simply possessing land for a long period does not automatically remove the registered title SECTION 96(3) LRA 2002

• a person who has been in adverse possession for 10 years can apply to become the registered owner = Sch 6

• at the time of their application, they MUST be in possession of the land

SCHEDULE 6 points:

• the Land Registrar will notify the registered owner, who has three months to object - Sch 6 Para 3(2))

• if no objections are made, the adverse possessor will be registered as the new owner- Sch 6, para 4

• if the registered owner objects and the application is rejected, but the adverse possessor continues to occupy the land for another two years, they can reapply

• after this TWO year period, the adverse possessor can be automatically registered as the owner, and the registered title will be transferred to them - Sch 6 para6-7

• this transfer isn’t affected by the owner’s objections

WHEN OBJECTIONS WILL NOT THE APPLICATION:

• there are THREE situations in which an adverse possessor can succeed in applying for registration despite the registered owner’s objections

  1- ESTOPPEL ..

• An adverse possessor can be registered if it would be unfair to remove them

• this is based on the legal principle of proprietary estoppel - Sch 6, para 5(2))

WHEN OBJECTIONS WILL NOT THE APPLICATION:

• there are THREE situations in which an adverse possessor can succeed in applying for registration despite the registered owner’s objections

  2- INDEPENDENT RIGHT TO ESTATE..

• if the squatter has an independent legal claim to the land (eg they bought it but no formal transfer occurred), they can apply to be registered - SCH 6, para 5(3)

• in these two cases, the squatter’s claim is based on something other than adverse possession, but the LRA 2002 offers a straightforward process to resolve these issues

WHEN OBJECTIONS WILL NOT THE APPLICATION:

• there are THREE situations in which an adverse possessor can succeed in applying for registration despite the registered owner’s objections

  3- BOUNDARY DISPUTES..

• this exception deals with cases where land boundaries are unclear

• eg, a squatter may have occupied land slightly beyond their own land’s boundaries

• If the squatter has possessed this disputed land for at least 10 years and reasonably believed it belonged to them, they may be able to register as the owner - Sch 6 para 5(4)

Boundary disputes exception only applies when:

• the squatter owns adjacent land

• the boundary line is not clearly land

• the squatter has been in possession for 10 years

• the squatter reasonably believed the land belonged to them (or was unsure about ownership)

the squatters BELIEF that the land belongs to them must be REASONABLE, even if it is legally incorrect

• this belief does not need to continue up until the application but must have existed for a period before the application

UNDER THE LRA 2002, a registered landowner can lose their title….

if they dont object to an adverse possessors claim within the SET timeframes or if exceptional conditions apply - such as estoppel, independent entitlement, or boundary disputes

THE INTERPRETATION OF THE BOUNDARY EXCEPTION IN BROWN V RIDLEY 2024:

• Johnson J agreed that the COA’s interpretation of para 5 in Zarb was binding, but he disagreed with it (obiter)

• he suggested an alternative interpretation, where applicants would only need to show their REASONABLE BELIEF about ownership during any 10 year period within the overall time they’ve occupied the land

• the SC has since agreed to hear an appeal in Brown, which may lead to a final decision on how this part of the boundary exception is applied

• if the appeal succeeds, the boundary could be officially fixed on the land register- as stated in S60(3), LRA 2002

OTHER CHANGES IN ADVERSE POSSESSION UNDER LRA 2002

• LRA 2002 makes it harder for adverse possession claims to succeed on REGISTERED land

• KEY CHANGES INCLUDE:

  ADVERSE POSSESSION PERIOD:

• period for adverse possession before a claim can be made is reduced to 10 years

• there are no transitional provisions for squatters unless they had already possessed the land for 12 years before Oct 13, 2003

• if its over that period, the squatter will still have an overriding interest if they occupy the land but unlikely to secure registration

OTHER CHANGES IN ADVERSE POSSESSION UNDER LRA 2002:

SUCCESSIVE SQUATTERS:

• the person applying for registration is expected to have been in adverse possession for the full 10 years

• a squatter cannot “inherit” the adverse possession from someone else, except when they are a successor (eg through purchase or inheritance) of the original squatter - Sch 6

• if a squatter leaves the land, their period of possession can count towards the NEXT squatter’s claim if they return immediately after the second squatter leaves - Sch 6, p11(2)(b)

OTHER CHANGES IN ADVERSE POSSESSION UNDER LRA 2002

ACKNOWLEDGMENT OF POSSESSION:

• as adverse possession can no longer automatically extinguish registered titles under the 2002 Act, there is no need for “acknowledgment”- an act recognising the landowner’s title, to stop the clock on the time required

• the Law Commission’s view that s29 and s30 of the Limitation Act 1980 dont apply under the new law might not be fully implemented by the 2002 Act

• but any acknowledgment by the squatter is likely to make their possession permissive (not adverse), blocking their claim

ADVERSE POSSESSION and CRIMINAL LAW;

• The Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced section 144- making it a crime to trespass on residential property with the intent to live there, knowing you’re trespassing

• HOW THIS WORKS:

• while this is the primary criminal offence related to squatting, its not the only potential offence squatters may commit

• s144 is controversial because it is the first law in E and W specifically criminalising squatting

• s144 was intended to give residential owners police support to remove squatters, but there are concerns about how effectively the police will enforce this, especially if squatters provide documents that may seem legitimate

• prior to this law, property owners had to go through the slower, more expensive civil process to remove squatters

• however this new criminal offence raises issues of whether a squatter’s criminal act should prevent them from using land law principles to claim adverse possession

• COA has ruled that a squatter’s criminal behaviour does not stop them from relying on adverse possession rules

• R Best v Chief Land Registrar 2015

UNREGISTERED LAND AFTER THE LRA 2002:

• unregistered land is unaffected by the changes to registered title introduced by the 2002 Act

• once 12 years adverse possession is established - s.15 LA 1980, the paper owner’s title is extinguished s17 LA 1980

• the adverse possessor can then apply to be registered as owner under the 2002 Act, possessory title will be given and then absolute title can be applied for once the possessory title has been registered for 12 years - S62(4) and (5) LRA 2002