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ADVERSE POSSEION - Coggle Diagram
ADVERSE POSSEION
REGISTERED LAND LRA 1925
- can be claimed before the 2003 act = more complex as there is already somebody owning the title
S75 – the adverse possessor title is owned by trust – require 10 years of possession under the new regime – if after two years after this the owner objects then it is their land again
Law commission – says that registration should provide protection against adverse possession, though it should not be unlimited protection – should be more difficult to displace a registered owner than an unregistered owner – law comm is encouraging people to register their land as gives them a defence mechanism if their title is challenged – would give them a two year warning
NEW REGIME = LRA 2002 Sche 6 ‘a person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of 10 years’
Limitation act 1980 s15 s17 = unregistered
- Once the adverse possessor has taken factual possession and established that they have the intention to possess the piece of land and intend to exclude everyone for that piece of land – once 12 years has passed then adverse possession has been established
S15(1) ‘no action shall be brought by any person to recover any land after the expiration of the twelve years from the date on which the right of action accrued to him’
S17 ‘effect is to extinguish the claims of the paper owner which gives the ‘squatter’ title which they can rely on
If the adverse possessor can establish 12 years of occupation before October 2003 then they can use the old rule to establish a claim – title will then be automatically awarded to the possessor
ESTABLISHING AP
- Date on which cause of action accrues against the paper owner
- S15 Limitation Act 1980 ‘after a period of time (12 years), the title owner is statute barred to bringing the claim to recover their land.’ - unregistered land before 2002
- Sch 1 ‘the start of the 12 years starts when the owner dispossessed or discontinued his possession’
- S8 ‘does not start until a squatter goes in and takes possession of the land’ - cannot recover the land until adverse possession has started
Pye v Graham [2003] - test for possession =
- a sufficient degree of physical custody and control (factual possession)
- an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (intention to possess)
FAIR: MAJORITY
- The limitation period (12 yrs) was relatively long
- The law of adverse possession was well established and had not altered during the period of ownership
- To avoid losing their title, Pye needed only to regularise the Graham’s occupation or issue proceedings to recover possession within 12 year period
- Value of loss to Pye
UNFAIR: MINORITY
- The result for Pye was exceptionally severe since they were deprived of their property without compensation
- Lack of adequate procedural protection for the right property, no form of notification was required under LRA 1925 which would have altered Pye to the risk of losing his title.
Legal Aid, sentencing and punishment of offenders act 2012 s144 = offence of squatting in a residential building ‘the person is in a residential building as a trespasser having entered it as a trespasser, the person knows or ought to know that he is a trespasser, and the person is living in the building or intends to live there for any period
Mr Best -
The offence is not committed by a person holding over after the end of a lease or licence (even if the person leaves and re-enters the buildings)
- Default rule – LPA 1925 – rights created by deed
- ‘a possession which is inconsistent with and in denial of the true owner. Possession is not normally adverse if it is enjoyed with the consent of the owner’ is about Dispossession of the paper owner – Ramnarace v Lutchman [2010]
ADVERSE VS PRESCRIPTION
- Two modes of acquiring property rights by exercising them over a long period of time
- Mutually exclusive: each is applicable to a different set of property rights in land
- Different sources
- Different doctrinal basis
- Buckingham v Moran [1990]
= Prescription = ‘as of right’
= AP = ‘as of wrong’
Holmes, the path of the law [1897] ‘a thing you have enjoyed and used as your own for a long time, property or opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself.’
POSITIVES
- Formal root of title may be lost, long user prevents need to show indefeasible chain of title
- Promotes active use of land. Land should remain in use and marketable
- Prevents social upheaval as long user assumed to be based on a right
NEGATIVES
- Less compelling as root of title period is almost as short as the usual period for limitation
- Does simply promote vigilance?
- Under LRA 2002 register eradicates need to rely on appearance of right from use of land
Powell v McFarlane [1979] - ‘factual possession signifies an appropriate degree of physical control, it must be single and conclusive possession, depends on the circumstances = nature of the land, the manner in which land of that nature is commonly used or enjoyed’ - use was not consistent – was not given consent but carried on using the land
Roberts v Swangrove [2007] - ‘necessarily one of fact and degree’ - maintaining land can constitute to possession
WHAT STOPS A PERIOD OF ADVERSE POSSESSION?
- If the adverse possessor signs a written acknowledgement of title before limitation – that the land is not theirs and is the paper owner’s - s29(2)
- Ofulue v Bossert [2009]
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