Essay: The doctrine of adverse possession (problem question)

The doctrine of adverse possession is defined as ‘squatters taking possession of land without the consent of the owner, which ultimately leads to the loss of the estate of land from the paper owner to the squatter’ through discontinuance or dispossession. In Powell v MacFarlane, Slade J defined dispossession as the ‘taking of possession from another without the other’s licence or consent.’ Thereafter, Lord Browne-Wilkinson in JA Pye (Oxford) Ltd v Graham stated that dispossession would occur when the squatter ‘assumed possession in the ordinary sense of the word.’ This meant that the courts were no longer required to spend time defining dispossession and gave it its simple meaning.
Plantagenet Palliser (P) is considered a trespasser when he goes on Eustace Lodge without permission, however, he may claim that he has rights of the land by way of adverse possession on the grounds of dispossession. By continuing to use the land and Buckfordshire County Council (BCC) sending letters in regards to P trespassing, the conduct by both parties qualifies as dispossession rather than discontinuance which would have been the case if BCC had abandoned the land.
REQUIREMENTS
In order to succeed in a claim of adverse possession, the claimant must establish two fundamental requirements; factual possession and an intention to possess (animus possidendi) the land as set out by Slade J. Factual possession refers to the squatter being in physical possession of the land by having a degree of control over it and treating it as the owner would. An intention to possess is shown by excluding others from using the property, including the paper title owner and the claimant is not required to have an intention to own the land These requirements were later affirmed in Pye. A final requirement is that possession must be adverse which in this case, P did not have permission to be on the land therefore hi possession is adverse.
East Gates Driveway
In giving P access to the driveway on the estate, the property gave him an easement right. Lord Denning, while describing the difference between positive and negative easements in Phipps v Pears, he concluded that ‘positive easements…give the owner of land the right to do something on or to his neighbour’s land…’ Therefore, Mr P and his visitors had permission to use the driveway by way of easement thus no issue of adverse possession.
Rear of Eustace Lodge (REL)
To establish factual possession, P must show a degree of control over the land. In the scenario, it can be said that in 2003, factual possession was not established because simply parking an unlimited amount of cars on the land was not enough to demonstrate sufficient control and that more needed to be done for example, putting up car parking signs or enclosing the land. Failure to provide these signs may also show that he did not have the intention to possess because there was no outward indication that he intended to use the land as his own. In addition, nobody was restricted from parking in the land.
P may then argue that adverse possession was established in 2003 by growing vegetables and erecting a fence. As was held in Dyer v Terry, cultivating the land and erecting a fence to protect his crops, can be regarded as a sufficient act, amounting to possession. However, factual possession must be for an unbroken time and as P was growing seasonal vegetables, this suggests that the land was only being used for this purpose for certain periods of the year. This can be which regarded as a break in the continuation of his possession.
The courts view fencing as good evidence of physical control however, the courts assess the purpose for erecting the fence. In Inglewood Investments Company Ltd v Baker for example, it was held that there was no intention to possess the land because he erected the fence to keep sheep inside the property. The decision can be distinguished with the present case because the purpose for erecting the fence in the scenario was to exclude other animals from entering into the property, possibly giving P a degree of control over the land.
An issue here however is whether this is sufficient enough as an ‘exclusion of all other persons including the paper title owner.’ If the fence big enough to exclude human beings as well as animals then this may be evidence of control otherwise, if it was a small fence then people could possibly still have had access to the land. However, the court in George Wimpey & Co Ltd v Sohn found that the fence and hedge erected was equivocal acts because they were meant to protect the property from public intrusion rather than to exclude the owner. The same may be said here because his intention was to protect his crops from animals and not the latter. More recently however, the courts have taken the view that it is the effect of the fencing alongside other actions that are assessed and not merely the motive to determine the intention to possess.
In addition, the fence was erected to protect seasonal vegetables from animals which suggests that the fence was only in use during these seasons. This would affect the continuance of possession because the courts held in Central Midlands v Leicester Dryens that physical control may not be temporary resulting in a break in the continuity. Therefore, although the crops are seasonal, if the fence remains up throughout the year and in effect excludes people from entering the property, then it may be sufficient evidence of control.
Eustace Lodge (EL)
Adverse possession of EL may be established when P started using the lodge for storage. P was a trespasser when he entered the lodge without permission however, if P started to lock the doors after storing his items, he could have argued that he had the intention to possess the lodge. Similarly, as this would exclude the world at large from entering the lodge, this would give him the intention to possess the land. Mr P did not start locking the doors though until 2006 which could be a sign that they remained open in 2005 which means anybody could have had access to the property.
P may be able to argue that adverse possession took place from 2006 as the actions are clearer here. As defined in Powell, factual possession is using and controlling the land in the same way that an owner would. This is demonstrated in the scenario by P renovating the estate as well as living in it. Furthermore, he shows the intention to posses EL by locking the estate gates and drives between the two lodges which suggests that P excludes everyone else including the owner from accessing these two lodges. As this is the only means of access to the land, then factual possession is also established. Knowledge by the council does not prevent an intention to possess. In addition, the letters sent by the council between 2006 and 2016 are not sufficient enough to stop time running against them.
OUTCOME
It is likely that P met the basic requirements in 2006 which is when adverse possession would begin. As this occurred after the Land Registration Act (LRA) 2002, there is a possibility that Eustace Lodge was registered because England and Wales was subject to compulsory registration in December 1990 and being a government body, Buckfordshire County Council may have adhered to this. However, there is also a chance of the property being unregistered because it is not expressed within the scenario and after 1990 not all property was registered.
The rules for both types of land differ as they are governed by the LRA 2002 for registered land after and the Limitations Act (LA) 1980 for unregistered land. If the land is registered, P must apply to the Land Registration Act (2002) in order to be registered as the new legal owner. This Act requires the claimant to make the application after 10 years of adverse possession therefore as P has been possession of the land for 14 years (assuming real time) then he is eligible to make an application. It is possible that in this case adverse possession may be terminated by virtue of the council taking legal action by taking him to court.
If P has an arguable case to be registered, then BCC, as the current paper title owner, would be notified of the application by the Registrar.
However, if the land is unregistered, P would acquire the title after 12 years have elapsed and there would be no obligation to notify the paper title owner. BCC’s title would be distinguished, and they would be unable to challenge this action.
CONCLUSION
It has become more difficult to acquire land through adverse possession especially when land is registered. In the case above, it is likely that P would be granted possessory rights over Euston Lodge after showing that he had factual possession and an intention to possess the land without consent of BCC, as well as passing of sufficient time without a break.