Please enable JavaScript.

Coggle requires JavaScript to display documents.

Adverse Possession - Coggle Diagram

- - - - if period of AP ends after 2003
  - - - at the point where squatter go AP, owner has period of action (12 yrs)
      - after 12 yrs cannot bring action, owner title extinguished
        
        nobody now has better title than squatter = squatter is owner
      - happens automaitcally
      - killing the owner's title, squatter's title is byproduct
        
        operates by killing title that are better than squatter's after 12 years
        
        does not give anything to squatter, just take away ownership from original owner
      - 1) transfer by owner
        
        Owner A--> B, squatter DOES NOT have to start over
        
        if squatter AP 8 yrs, A--> B, squatter only has to do 4 more yrs
        
        Limitation Act 1980 s 15 (1), (4)
      - 2) transfer by squatter
        
        e.g. squatter AP 8 yrs, sell to Y, Y only need to do 4 more yrs to get ownership
        
        squatter can transfer his own title to others
      - 3) successive squatters?
        
        owner, S1, S2
        
        S2 getting their own relatively inferior fee simple
        
        enter against both owner and S1
        
        after 12 yrs, S1 has superpriority over S2, but if S2 there for 12 yrs can take over from S1
      - 4) owner lease the land
        
        after owner gives lease, squatter goes into AP
        
        against WHICH TITLE?
        
        Squatter AP against title for possession --> AP against tenant
        
        Lease --> squatter enters AP--> 12 years, leasehold possession extinguished
        
        the tenant has no right to possess anymore but lease is not over yet
        
        time gap b/ squatter AP success and termination of lease
        
        nobody has better right than squatter
        
        after lease ended, owner take back land, owner has superior rights now
        
        an evict squatter
        
        BUT if squatter continues AP and stays 12 more years, take over from owner as well
        
        basically if squatter AP 12 yrs, extinguish leaseholder's possession BUT need another 12 yrs to squeeze out owner
        
        meanwhile the squatter can live during the grey period
        
        lease promises that if break give owner right to forfeit and take back possession early (e.g. keep good condition)
        
        if nobody comply to leasehold covenance, landlord can forfeit the lease early
        
        but if squatter comply, can keep the lease
        
        tenants can voluntarily surrender their lease early
        
        Fairweather v St. Marylebone Property: if tenant's possession taken by squatter, surrender lease
        --> owner retain possession early
  - - - Disapplication of limitation periods
        
        LRA 2002 s 96
        
        mere elapse of time can no longer take away owner's title
      - Application of LRA 2002 Sched 6
        
        LRA 2002 Sched 6 para 11(1): the mechanics of AP
        
        must be there for 10 yrs, must apply to be proprietor
        
        squatter must take active role
        
        land registry notify the true owner
        
        if owner agree, squatter succeed
        
        if owner did nothing for 65 business day, treated as if he consented
        
        if owner can't be bother, justify land not used actively
        
        if owner object - land registry stall application
        
        owner can issued counter-notice
        
        squatter need to be dealt w under para 5
        
        squatter stay for 2 extra yr, will be successful (owner need to stop AP in two yrs)
        
        Sched 6 para 3: only those listed in para 2(those entitled to receive notice of squatter's AP application) can serve counter-notice
        
        basically if ppl who receive dont respond then screwed
        
        Best v Curtis: the personal respresentative of dead RP CANNOT serve counternotice
        
        very strict regime
        
        its best to 1) object and 2) serve counter-notice
        
        Baxter v Mannion
        
        owner ill + bad family situation, did not respond
        
        land registry: oopsie tough luck
      - Application required to be dealt w under para 5
        
        squatter ONLY successful if one of the conditions are met
        
        LRA 2002 Sched 6 para 5
        
        first condition/exception
        
        it would be unconscionable because of an equity by estoppel
        
        if owner promise land and person depend on that promise
        
        2nd condition/exception
        
        the applicant (squatter) for some other reason entitled to be registered as proprietor
        
        e.g. if they have been entitled anyway under the will
        
        (first 2 conditions useless)
        
        3rd condition/exception
        
        BOUNDARY RULE
        
        very uncertain even for registered land
        
        4 key requirement
        
        disputed land must be adjacent to the land own by applicant (squatter)
        
        adjacent = two neighboring plot sharing boundary
        
        most likely a small strip of land on the boundary
        
        Dowse v Bradford MBC: the whole of disputed land need to be adjacent to applicant's land
        
        the meaning of "belonging to"
        
        land adjacent must belong to squatter
        
        BUT NO NEED for squatter to be RP of neighboring land
        
        its enuf to have unregistered title
        
        can even obtain neighboring land by AP
        
        "neighboring land belonging to" is made deliberately broader
        
        applicant "reasonably believed" that land belonged to him
        
        Zarb v Parry
        
        IAM Group v Chowdrey
        
        in both case:
        
        1) squatter has subjective belief that land is theirs
        
        2) subjective belief is objectively reasonable
        
        even though real owner written to squatter to argue, squatter still subjectively believe that land is theirs
        
        court: even though owner contested, the squatter's belief still reasonable
        
        for which 10 yr period must the applicant held the reasonable belief?
        
        Zarb v Parry, IAM Group v Chowdrey
        
        both say squatter must held reasonable belief for last 10 yrs leading to application
        
        10 yrs = 10 yrs ending on day of application
        
        Zarb suggest a brief window: makes no sense, before he makes application, must have realize that land is not his
        
        Brown v Ridley
        
        providede the APers reasonably beleive that the land is theirs for any period of 10 years within the period of AP then the boundary exception applies
        
        More straightforward way
        
        Disagree zarb - not good law anymore
        
        Provided that theres reasonable believe within 10 years of application for AP, thats enuf
        
        basically squatter very difficult to win
        
        can only use this if u are squatter that owns land
      - effect of a successful application for registration
        
        what happens after they win --> become new RP
        
        positive acquisition of title (rather than negative extinguishment of title for unregistered land)
        
        positively acquiring title they didnt previously have
        
        they basically got the original RP's fee simple
        
        their own inferior fee simple terminated at that point
        
        LRA 2002 Sched 6 Para 9(1)-(2)
      - effect of transfer by RP
        
        e.g. at the 8th yr of AP, what if owner transfer title to someone
        
        only need to do another 2 yrs before they can apply under sched 6
        
        after 10 yrs against superior estate, squatter can make application
        
        if successful = updated and become new RP
      - effect of transfer by squatter
        
        e.g. on 8th yr of AP, squatter transfer the title to Y
        
        Y only need 2 more yrs
        
        Y can add tgt the time that squatter has already done to her own title
        
        sched 6 para 1, para 11 (2)(a)
      - successive squatters
        
        the dispossessive squatter CANNOT inherit AP yrs
        
        e.g. if S1 dispossess, S2 need to do 10 yrs
        
        S2 need to be in AP 10 yrs themselves
        
        exception: squatting sandwich
        
        S1 AP --> S2 dispossess S 1--> S1 recover from S2
        
        S1 can add tgt his initial period + S2 period + final period
        
        if that is 10 yrs --> S1=new RP
        
        sched 6 para 11 (2)(b)
      - What if owner leased the land
        
        squatter can become new owner of registered lease
        
        squatter takes over the registered lease, bound by all conditions in the lease
        
        unlike unregistered land, in which the squatter never become actual tenant
      - what if the APer is a tenant, possessing a third party's land?
        
        tenant go AP neighbor's land
        
        assume anything the tenant does is for the benefit of landlord UNLESS assumption rebutted
        
        landlord can bring claim, cuz AP is happening FOR landlord
    - - squatter very unlikely to succeed
      - encourage ppl to register their land, protect against squatter
      - squatter will just not make application at all
        
        afraid their occupation will be discovered by owner
        
        the law does NOT catch up w reality
- - - - difficult to find true owner (unregistered land)
      - if squatter show theyre owner, land can be traded
      - Pye v Graham
    - - e.g. guard against speculation, just leave it there w/o using
    - - if squatter used land, become theirs
    - - social value
- - - - exclude others even though may not be real owner
    - - can sell
    - - owner has priority (superior) squatter has 2nd priority
        
        give squatter 1 right against whole world EXCEPT for the original owner
      - owner can get land back from squatter
      - owner > squatter 1 > squatter 2
      - squatter the moment go into AP = trespass, owner can go court and evict
  - - - tenant start AP plot B
    - - presumption that tenant AP on behalf of landlord
      - if land possessed is closed to original property
      - fee simple belong to LANDLORD, become part of leasehold property
      - EXCEPT when tenant prove they use land for benefit of themselves
    - - initial presumption = tenant AP for landlord
      - BUT can be rebutted if tenant show APing for their own benefits
  - - - s 58: if registered = conclusively the owner
      - registration itself is a source of title
- - - - will be committing criminal offence if someone squat in residential building knowing that they are trespassers
  - - - arguably squatter committing offence cannot rely on sched 6
    - - should not reject sched 6 application cuz of criminal offence
      - sched 6 has important policy goal, criminal offence does NOT impact that
      - but if squatter murder owner then ofc balance tip against their favor
- - - - engagement of the right
        
        Sporrong and Lonnroth v Sweden
        
        1) general nature: peaceful enjoyment of property
        
        2) deprivation of possession exception in the public interest and subject to conditions provided for by law
        
        3) states are entitled to control the use of property
        
        property right have inherent limitation
        
        the inherent limitation does NOT count as interfere w owner's rights
        
        Aston Cantlow v Wallbank
        
        church impose obligation on house to pay cost of refurbushing the church
        
        whether the church repair liability interfere w art 1 P1
        
        NO, when wallbank inherited land, is already subject to that inherent limitation
        
        Art 1 P1 never engaged
      - justification for interference
        
        there is public interest in AP
        
        HR court agree that states have large margin of appreciation here
      - proportionality/fair balance test
        
        whether the interference w owner's rights is proportional to the legitimate aim being pursued
        
        if its "deprivation" = compensation paid to owner
        
        if "control of use" no need to compensate
      - outcome = violation or not
      - Possible remedies: different in domestic vs. European court
    - - JA Pye v Graham
        
        Pye lose their land to squatters under the Limitation Act 1989
        
        automatically lose title to squatter after 12 yrs of possession
        
        Pye sue UK under ECtHR
        
        JA Pye v UK
        
        decide in first instance that loss of title under AP count as interference
        
        interference was deprivation of owner's rights, disproportionate for two reasons
        
        no compensation payable to owner
        
        no procedural protection for owner (no notice served)
        
        overturned in grand chamber: NO VIOLATION OF Art 1 P1
        
        owner's loss is merely loss of control of use
        
        compensation not payable
      - if LPA 1925 (the least justified) deemed to be European-convention-compliant, than the other two (unregistered land and registered land under LRA 2002) must be convention compliant also
        
        AP safe from HR claims
  - - - engagement of right
        
        can have home under art 8 even if lack any legal rights to be there
        
        home is an "autonomous" concept
      - justification for interference = margin of appreciation
      - proportionality test
        
        very rarely that squatter's A8 argument win against owner's Art 1 P1
  - - - need very exceptional facts for there to be violation of A8 rights
      - the facts here NOT exception, A8 argument fails
      - since then A8 generally fails
    - - currently HR law does not effect AP
        
        WORK ENDS HERE
- - - - possession is EXCLUSIVE
        
        when squatter in possession, owner must be OUT
        
        1) discontinuance and dispossession
        
        discontinuance = owner abandons the land
        
        dispossession: squatter possess land, owner driven out
        
        2) heavy presumption of continuance by owner
        
        even if owner doesnt wanna use land now, can assert possession if show that they wanna use in future
        
        Buckinghamshire CC v Moran
        
        council wanna develop land in future, NOT discontinuance, squatter have to show more in dispossession
        
        squatter's possession starts at later date (when they put a locked gate)
      - geographical extent of possession
        
        if squatter possess a little bit, the fee simple = only over that small strip
        
        BUT sometimes land so large, impractical to use all --> even if squatter only use small pot = possessing larger pot
        
        Higgs v Nassauvian
        
        farm land used in rotation
        
        farm one patch = evidence of possessing greater patch
      - Requirement: Factual possession + intention to possess
        
        relationship b/ two elements
        
        relevance of geography of land
        
        Red house farms v catchpole
        
        geography of land matters
        
        owner and squatter land separate by river
        
        river change course, squatter start using owner's land = sufficient to show land use
        
        Thorpe v Frank
        
        nature of land in question is important
        
        paving a relevant area = clear possession
        
        Factual Possession
        
        the court apply factual test first
        
        if clear factual test = squatter assume to show intention
        
        if doesnt have clear factual, intention test more important
        
        the test
        
        Powell v MacFarlane
        
        "appropriate degree of physical control"
        
        "single and exclusive possession"
        
        "as an occupying owner might have been expected to deal w it"
        
        basically squatter show 1) positive/significant land use OR 2) protect property from others
        
        applying test
        
        car parking
        
        need to go beyond mere fleeting use
        
        Williams v Usherwood
        
        owner accidentally paint neighbor's driveway
        
        = factual AP, cuz this is normal owner's behavior
        
        Simpson v Fergus
        
        private road owned by somebody, owners of house enjoyed right of way
        
        one owner put sign and draw parking spaces
        
        CA: not enuf
        
        Parshall v Bryans
        
        whether owner AP parking space outside of house
        
        even though rarely put up chain --> factual possession
        
        grazing animals
        
        Powell v MacFarlane
        
        boy lost parents, look after cow
        
        repair fences for 20 yrs
        
        CA: NOT ENUF to show factual possession
        
        1 more item...
        
        JA Pye v Graham
        
        grazing + locked property + chartered surveyor say nothing else that owner could have done
        
        1 more item...
        
        Cultivating
        
        Tennant v Adamczyk: planting A vine is not enuf factual possession
        
        Hounslow LBC v Minchinton: AP stands cuz NO OTHER way to use the tiny strip
        
        Fencing and other control on access
        
        controlling access = strong indication of possession
        
        Buckinghamshire CC v Moran: if locked gate = strong indication of factual possession
        
        Carroll v Manek and Bank of India
        
        charing ppl to use the carpark was enuf
        
        manager living in hotel claim AP room + carpark
        
        Intention to possess
        
        when factual possession NOT ENUF, squatter prove intention
        
        looking at squatter's own conduct
        
        the test
        
        intention to possess NOT intention to own
        
        Ofulue v Bossert
        
        owner lease to tenant, tenant allow C to live
        
        1 more item...
        
        even if C believe they were tenant --> consistent w AP
        
        intention need only relate to time being
        
        Buckinghamshire CC v Moran
        
        no requirement that squatter stay there forever
        
        intention to possess relates to furtherance of squatter's use of land
        
        so far as the law allows
        
        NO NEED to show intention to exclude owner
        
        only intention require = FURTHER UR OWN USE
        
        show u occupy + use property as ur own
        
        Applying the test
        
        bad faith generally irrelevant
        
        doesnt matter if squatter just wanna steal land
        
        squatter's willingness to pay if asked
        
        as long as squatter intend to possess property
        
        erection of notices
        
        putting on notice that warns other against entering
        
        good way of showing intention to possess
    - - Squatter possessing WITHOUT owner's consent
      - if owner and squatter appear tgt = enjoy owner's fee simple
      - squatter must be there as trespasser
      - 1) Without owner's consent
        
        Smith v Molyneaux
        
        permission can be unilateral + inferred
        
        JA Pye v Graham
        
        initially there w permission, but permission expired, from that point onwards in AP
        
        Pye dispossession NOT discontinuance, company did not abandon land
      - 2) owner's future plans for land?
        
        Leigh v Jack
        
        AP = use of land inconsistent w owner's future plans
        
        Pye company attempt to reference this, say that grazing was not inconsistent w their future plans
        
        Leigh v Jack wrong
        
        what matter is squatter's intention, consistent w owner's plans ≠ consent
        
        although if the squatter know owner's future plan MIGHT jeopardize intention
        
        if they think need to leave at some point
      - 3) APer is the RP of disputed land?
        
        original RP, somebody else mistakenly registered in their place, original RP looks like APer
        
        DISCREDITED: Parshall v Bryans *
        
        disputed parking space mistakenly double registered
        
        could party that mistakenly register claim AP?
        
        NO, possession cant be adverse cuz mistaken owner still the owner
        
        (but why some random squatter AP, got better title than those who manage to register)
        
        *Nasrullah v Rashid*
        
        squatter was register IRRELEVANT to AP
        
        if without consent = adverse
        
        discredit Pashall
        
        if favor squatter who seize land, no reason why not favor squatter who did all that + register
      - written acknowledgement of owner's title
        
        if squatter acknowledge owner's title in writing
        
        AP period starts again
- - - - Legal effect of running of time
        
        possible impact in criminal
        
        possible impact in HR
    - - original acquisition (set up ur own title)
      - can exclude strangers