Экзамен зачет учебный год 2023 / Dixon, Modern Land Law

Modern Land Law

rights grounds, albeit that the Beaulane decision must now be regarded as unreliable in the light of the later decision of the Court of Appeal in Ofulue v. Bossert (2008). That said, the House of Lords in J A Pye Ltd v. Graham (2002) sought to codify the principles of adverse possession in an attempt to bring some certainty and clarity to the law and, together with the earlier decision of the Court of Appeal in Buckinghamshire CC v. Moran (1990),9 contain a definitive statement of the modern law. The reasoning of the House in Graham forms the basis of the following discussion. In simple terms, adverse possession may be established by demonstrating the required degree of exclusive physical possession of the land, coupled with an intention to possess the land to the exclusion of all others, including the paper owner. It is, therefore, the conjunction of acts of possession with an animus possidendi (intention to possess) that establishes adverse possession.

11.1.1 An intention to possess

As recognised by the court in Powell v. McFarlane (1979), the requirement that the adverse possessor must ‘intend’ to possess the land adversely to the exclusion of all others to some extent is artificial. For example, some adverse possessors may appreciate fully that the land is not theirs and act deliberately to exclude the world; others may believe honestly that the land is theirs already, and so do not for one moment think they are excluding the ‘true’ owner; others still may have formulated no intention at all, but simply treat the land as their own because it is there. In other words, we are not looking here for ‘intention’ in the traditional legal sense of a mens rea, either objectively or subjectively established. What is required is evidence that the adverse possessor, for whatever reason, had an intention to possess the land and put it to his own use, whether or not he also knew that some other person had a claim or right to the land.

Most importantly, as Pye makes clear, this means that the ‘necessary intent is an intent to possess not to own and an intention to exclude the paper owner only so far as is reasonably possible’.10 In other words, the claimant is not required to prove that he believed that the land was his, or wanted to acquire it, but, more simply, that he meant to exclude all others if he could.11

9This decision owned much to the earlier remarkable judgment of Slade J in Powell v. McFarlane (1977) which was explicitly approved in Moran and in Pye. According to Lord Browne-Wilkinson in Pye, ‘the principles set out by Slade J as subsequently approved by the Court of Appeal in Buckinghamshire County Council v. Moran [1990] Ch 623 cannot be improved upon’.

10Lord Browne-Wilkinson at paragraph 46. Or, in the words of Slade J in Powell, ‘an intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow’.

11Williams v. Jones (2003).

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This is crucial. It means that the focus is on the intentions of the claimant, not the landowner. Consequently, it is immaterial that the landowner had an intention to use the land in the future that was consistent with the actual present use by the claimant, whether or not the claimant knew of such intention, because the landowner’s state of mind is irrelevant. This makes clear, as if it were needed, that the ‘implied licence’ theory (wherein the claimant is automatically deemed to have been given a licence simply because his actions were not contrary to an intended use by the landowner) is invalid and incorrect in law.12 It is, in the language of Lord Brown-Wilkinson, ‘heretical and wrong’. As much was settled by Moran, and although there may be occasions for the genuine implication of such licence, Lord Bowne-Wilikinson in Pye also makes it clear that this will be exceptional. As he says, if the claimant

is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the adverse possessor does not conflict with that use, that may provide some support for a finding as a question of fact that the adverse possessor had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.13

Likewise, the intention to possess14 can still exist even if the claimant would have been prepared to accept permission to use the land, had it been offered.15 Such willingness is not inconsistent with a current intention to possess even if any subsequent actual acceptance of permission (e.g. acceptance of a lease or licence) would destroy the intention. A later admission of the landowner’s title by the claimant is not inconsistent with the claimant having an intention to possess in the meantime. This was, in fact, the situation in Pye itself where Graham had made it clear that he would have accepted a grazing licence from Pye, but as one was not offered, Graham’s current intention to possess the land until a licence was offered and accepted was enough to secure title by adverse possession. Conversely, however, although the adverse possessor’s mere knowledge of another’s claim to the land is no bar to adverse possession,16 a belief that the land is currently possessed with the permission

12See also Limitation Act 1980 Schedule 1 paragraph 8(4).

13The implied licence theory was not re-asserted in Beaulane, but note as discussed below, that the judge’s concept of possession in that case produces a similar effect. As noted, Beaulane cannot now be regarded as authoritative in the light of Ofulue v. Bossert.

14Sometimes known as the animus possidendi.

15So, in Lambeth LBC v. Blackburn (2001), Blackburn was able to demonstrate an intention to possess the land – through clear acts of possession – even though he knew that the land was another’s and would have accepted a permission (a lease) if one had been offered.

16The contrary view in Batt v. Adams (2001) cannot be good law after Pye.

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of the paper owner is fatal. This was the case in Clowes Developments v. Walters (2005) where the claimants belief – even if mistaken – that the land was held under a licence meant that thy simply could not have the relevant intention to possess. Awareness that the land belongs to another cannot prevent the existence of a current intention to possess (Blackburn), but an acknowledgement that the land belongs to another will.17 Put simply, you cannot intend to treat the land as within your ultimate control if you believe that you are permitted to be there by the owner. Finally, as also demonstrated by Pye, if the alleged adverse possessor once occupied the land with the permission of the paper owner, any continued possession after that permission has ended (e.g. the lease or licence has ended but the claimant stays in possession) may be sufficient to support a claim of adverse possession if the animus possidendi is shown.

It will be appreciated immediately that this intention to possess might be difficult to prove. There are few difficulties if the alleged adverse possessor has acknowledged the true owner’s title in some way18 or, conversely, if the adverse possessor has placed a sign at the entrance to the land saying ‘Keep Out: Private Property’. Most cases are, however, somewhere in between. Moran itself establishes that the actions of the adverse possessor in seeking to assert physical possession of the land also may give a strong indication as to whether the necessary intention exists. This must be correct, for it is wrong to regard the question of intention and of physical possession as being entirely separate and disconnected. They are part and parcel of the same inquiry; that is, has the claimant established adverse possession? So, enclosing land by a fence may constitute both the act of possession and demonstrate the intention to possess (Moran) as might changing locks to a flat (Blackburn) or grazing animals within an enclosed field (Pye), and the burden of proving the intention may be lighter in cases where the true owner has, to the knowledge of the adverse possessor, abandoned the land (Minchinton). It is clear, then, that unequivocal conduct in relation to acts of possession on the land is the best evidence of an intention to possess. Such acts may need to be more forceful where the land was once occupied with permission, but it will be a question of degree in each case.

11.1.2 Physical possession of the land

As well as demonstrating an intention to possess the land, the adverse possessor must also demonstrate a physical assumption of possession. Before the

17BRB (Residuary) v. Cully (2001).

18For example, in Archangel v. Lambeth LBC (2000) the alleged adverse possessor had acknowledge the landowner’s title in written correspondence. See also Rehman v. Benfield (2006).

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decision in Pye, much academic and judicial ink had been spilt in trying to determine in what circumstances possession could be deemed to have been taken and when it also was ‘adverse’ to the paper owner. So, there was much discussion of the apparent differences between discontinuance of possession by the paper owner followed by possession by the claimant, and dispossession of the paper caused by the possession of the claimant. However, in Pye, Lord Browne-Wilkinson explained why too much analysis was a bad thing. In his view, ‘much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible … The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner’. In other words, we should not seek to overconceptualise what is ‘adverse’ and what is not, but ask ourselves the simple ordinary question: is the claimant in possession of the land without the permission of the landowner?

Seen in this light, factual possession means a sufficient degree of physical custody and control for one’s own use. It is, in essence, a matter that must depend on the circumstances of each case, the particular nature of the land and the manner in which that land is commonly used.19 The ultimate touchstone is, in the words of Slade J in Powell, whether ‘the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so’. Thus, the taking of possession might reside in a series of events,20 or some one-off activity that is maintained thereafter.21 It is not necessary for the paper owner to be aware that they have lost possession,22 or for the paper owner to be inconvenienced by the acts of possession.23 Moreover, whereas possession will not be presumed lightly from acts which are equivocal in nature or temporary in purpose, such as growing vegetables, or clearing land to enable one’s children to play,24 even small acts of custody and control might suffice if the land has been abandoned, is inaccessible by the paper owner or is of such quality that it does not readily admit of significant possessory acts.25 Thus, in Purbrick v. Hackney, (2003), the successful adverse possessor had cleared a derelict shed, erected a new roof and fitted a makeshift door and

19This essentially is the test put forward in Powell and adopted in Pye.

20The last of which crystallises the moment of possession.

21For example, enclosing the land and gating it.

22Powell v. Mcfarlane (1979).

23Treloar v. Nute (1976).

24Techbild v. Chamberlain (1969). In Central Midlands Estates v. Leicester Dyers, (2003), the parking of an unlimited number of cars on the land was not sufficient as it did not amount to enough control of the land to establish factual possession.

25For example, one would not expect significant acts of possession on marshland, accessible only by boat, Red House Farms v. Catchpole (1977). See also Williams v. Jones where grazing sheep on quarry land constituted sufficient acts of possession.

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fixed a chain. He could have done more to secure possession, but he had done enough in all the circumstances. Neither does it matter that the acts of possession serve a dual purpose, so long as they give custody and control to the claimant for his own benefit. For example, in Minchinton, the successful adverse possessor had fenced off part of the claimant’s land, apparently to prevent the escape of her dogs that she exercised on the land. Not surprisingly, counsel for the paper owner submitted that the enclosure was not designed to exclude the world, but to confine the animals, and should not, therefore, be regarded as possession. The court, however, took the view that it was the effect of the adverse possessor’s actions that were important, not the motive with which they were done.26 So, if the effect of the fence was to keep out the world as well as keep in the dogs, it amounted to physical possession. So it is then, that in answering the question ‘has the adverse possessor demonstrated physical possession of the land?’, in the sense of acquiring custody and control for his own use, it is the whole of his activity on the land that is relevant. The individual activities may seem equivocal or trivial, but if taken together they paint a picture of a person in control of land, they will amount to possession.

This clear and uncompromising approach to possession, affirmed by the House of Lords, lays to rest old ghosts and places the substantive principles of adverse possession on a firm footing. In Beaulane Properties v. Palmer (2005), Deputy Judge Strauss QC, sitting in the Chancery Division of the High Court, had sought to reintroduce a version of the ‘heresy’ rejected by the House of Lords in Graham as a means of dealing with an apparent inconsistency between the principles of adverse possession and human rights obligations guaranteed by the Human Rights Act 1998.27 It is now clear, following the decision of the Grand Chamber of the European Court of Human Rights in Pye v. UK (2007), that the law of adverse possession as it applies to claims under the LRA 192528 (and therefore to claims to unregistered title) is consistent with human rights law, in particular with Article 1 of Protocol 1 to the Convention. The law of adverse possession is a proportionate and legitimate response to a public interest concerning the need to limit claims in relation to land. Consequently,

26Of course, the adverse possessor was still required to demonstrate an intention to possess, although in Wreatham v. Ross (2005), the court notes that the search for factual possession is more important than the question of whether the adverse possessor intended to exclude the paper owner.

27The issue turned on adverse possession under the old law of the LRA 1925. The judge in Beualane took the view that the new mechanisms of the LRA 2002 whereby the registered proprietor did not automatically lose title (in fact, he is very likely to retain it) meant that the LRA 2002 was consistent with human rights principles. This must be correct – see Pye v. UK (2007).

28Being where the adverse possession was completed before the entry into force of the LRA 2002. This means, almost certainly, that the law applicable under the LRA 2002 is also human rights compliant.

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there is no need to ‘reinterpret’ principles of adverse possession in order to make them human rights complaint (because they already are) and the gloss placed on the Graham principle by Beaulane is no longer good law. In Ofulue v. Bossert (2008), the Court of Appeal confirmed that principles of adverse possession were, as a matter of principle, complaint with human rights law and thus there was no opportunity for a landowner to challenge a loss of title on human rights grounds in a given case because of his own particular circumstances.29 This, in turn, is consistent with the general approach of the House of Lords to the relationship between property law and human rights: see Harrow London Borough Council v. Qazi and Doherty v. Birmingham City Council (2008).30

In so confirming, the Court of Appeal in Ofulue followed Graham and ignored Beaulane.31 The law is, therefore, as that stated in Pye v. Graham.

Assuming that the claimant has established both an intention to possess and factual possession of the land under the Pye rules, what does this mean? The answer is that it may mean much, particularly in unregistered land, or it may in the end mean very little, particularly in registered land. However, without establishing this evidential base for adverse possession there can be no claim at all, and many cases fall at this hurdle before consideration is ever given to what happens next. In fact, ‘what happens next’ depends on whether the adverse possession has been evidentially established against

29See also Kay v. Lambeth for a similar view in relation to possession proceedings instigated by a landlord against an occupier with no existing property right to possession. Note the divergent view in McCann v. UK (2008), Fourth Section of the European Court of Human Rights. In Doherty (2008), the House of Lords took the view that McCann was based on a misconception of possession proceedings in UK law.

30In Qazi, Lord Scott decided that principles of human rights law were not engaged at all if a recognised property claim was being enforced, while Lord Millet and Lord Hope decided that the enforcement of a proprietary right could not, as a matter of principle, cause a violation of the Convention. The minority (Lord Bingham and Lord Steyn) disagreed, and felt that there might be occasions (albeit rare) when the enforcement of a recognised property right might call for an examination of compliance with the Convention. Qazi attracted strong criticism because it essentially rules out human rights issues in private property matters except in the most extreme circumstances. In Connors v. UK (2005), the European Court of Human Rights had decided that the enforcement of a property right by a local authority against a group of gypsies did indeed violate the Convention and this appeared to contradict the rationale on which Qazi was based. However, in Price v. Leeds City Council and Kay v. Lambeth (2006), the House of Lords again confirmed that the enforcement of a property right valid under English law would not violate the Convention, irrespective of the personal circumstances of the ‘victim’, unless the law on which the enforcement was based was itself flawed. This has been confirmed again by the House in Doherty v. Birmingham City Council (2008). This means, in essence, that the enforcement of a valid property right is most unlikely to involve a violation of the Convention – a result foretold by the House of Lords in Aston Cantlow v. Wallbank in 2003. Connors v. UK was explained as involving a group of persons (gypsies) who had special protection under the European Convention and in Doherty, the principle of Qazi and Kay was upheld, but the unfair treatment of the gypsy family also led to a remedy for the applicants.

31The court in Ofulue suggests that an attempt will be made to appeal Beaulane out of time.

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an unregistered or registered title for this is where the law diverges since the entry into force of the Land Registration Act 2002.

11.2The basic principle of adverse possession in unregistered land

The ability of an adverse possessor to acquire a better claim than the paper owner to unregistered land is based on the principle of limitation of actions. In simple terms, ‘limitation of actions’ expresses the idea that a person must sue for an alleged wrong within a specified period of time from the moment the alleged wrong took place.32 In the context of adverse possession of unregistered land, this means that a person (e.g. the paper owner of the land) may be ‘statute barred’ from bringing a claim against the adverse possessor to recover possession of their land after the period of limitation has passed. Thus, as against the adverse possessor, the paper owner has no means of recovering the land, and so the adverse possessor has ‘acquired’ a better right to the land. To look at it slightly differently, if an unregistered estate owner sleeps on his rights, those rights will be extinguished in the sense that a court will not enforce them against the person actually in possession of the land. In this sense, therefore, adverse possession operates negatively: it prevents an estate owner from suing on his rights and operates to extinguish his title. Conventionally, this is taken to mean that adverse possession does not actually give a title to the adverse possessor but, by virtue of the doctrine of relativity of title, the person now in actual possession may have the best claim to the land, and thereby become ‘owner’ of it to all intents and purposes. Importantly, the idea of limitation of actions has no application to land of registered title governed by the LRA 200233 and has been replaced by a statutory mechanism that protects the registered proprietor in all but a specified number of situations.

11.2.1 The limitation period for unregistered land

If the essence of adverse possession of unregistered land is that a paper owner will be prevented from bringing an action to recover land against the person in actual possession of it, it is crucial to know exactly when this ‘bar’ will come into effect. In other words, how long must an adverse possessor be in adverse possession before the paper owner is statute barred from bringing an action? How long is the limitation period for unregistered land? It should

32See currently the Limitation Act 1980.

33It does apply to registered land where the adverse possession was completed prior to the entry into force of the LRA 2002.

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come as no surprise to learn, first of all, that the limitation period for actions concerning land depends on the circumstances of each particular case. Fortunately, there are some general rules. First, in the great majority of cases, the limitation period will be 12 years from the moment of adverse possession of the unregistered title by the adverse possessor (section 15 of the Limitation Act 1980). This is the normal period of limitation for actions concerning land but, of course, it has no application to land of registered title governed by the LRA 2002. Second, where the paper owner of the land is a ‘sole’ charitable corporation (such as a bishop), the period of limitation is 30 years from the moment of adverse possession (Schedule 1, paragraph 10 of the Limitation Act 1980). Third, where the paper owner of the land is the Crown, the period of limitation is 30 years from the moment of adverse possession (Schedule 1, paragraph 11 of the Limitation Act 1980). Fourth, if land is owned by someone for life, with remainder in fee simple to another person (for example, to A for life, remainder in fee simple to B, then the limitation period is either adverse possession of six years from the date at which the interest in remainder falls into possession (i.e. the death of the life tenant), assuming 12 years or more already have been completed against the life tenant; or adverse possession of 12 years from the time the life tenant was dispossessed, whichever is the longer (section 15 of the Limitation Act 1980). So, assuming land is held by A for life, remainder to B, adverse possession of 12 years or more against A will extinguish A’s interest, and a further six years will be necessary on the death of A also to extinguish B’s interest.

Fifth, if the current paper owner is a tenant of the land under a lease, the period of limitation against the tenant is 12 years.34 Expiry of the period will, therefore, extinguish the tenant’s title against the adverse possessor. Importantly, however, extinguishment of the tenant’s title has no immediate effect on the title of the reversioner (i.e. usually the freehold landlord), simply because until the end of the lease, the landlord has no right to possess the land at all. Therefore, time does not begin to run against the landlord until the original term of the lease expires (or, possibly, is otherwise brought to an end: see section 11.2.2.3). When the original term of the lease expires, and assuming 12 years’ adverse possession against the tenant, the landlord will have a further 12 years to recover the land (section 15 and Schedule 1, paragraph 4 of the Limitation Act 1980). Obviously, it is crucial for the application of these rules to know when the lease has ended. This will usually be the expiry of the stated term (or statutory extension thereof), and, for a periodic tenancy, this is treated as the end of the last period for which rent was paid. Note, however, that although the normal rule is that the landlord’s right of action against the adverse possessor arises when the original term of the lease ends, there is an

34 Chung Ping Kwan v. Lam Island Development Co (1996).

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exception to this. So, if the lease itself gives the tenant an option to renew the lease when it expires, the adverse possessor who has evicted that tenant also may rely on the right to renew to defeat the landlord’s claim to possession.35 The landlord (and any person claiming through the landlord, such as an alleged new tenant) must, it seems, wait until the period given under the right to renew also has expired. The rationale is that, as the landlord could not have evicted the original tenant (because of the option to renew), so the landlord cannot evict the adverse possessor who has displaced that tenant. This is logical, but it does give the lie to the idea that the adverse possessor’s title is completely unconnected to that of the paper owner he dispossesses.

Whatever period of limitation is applicable, it starts to run against the relevant paper owner of the unregistered title from the first moment of adverse possession. Consequently, if the alleged adverse possessor never, in fact, has been in adverse possession, time cannot start against the owner, and he cannot lose title. For example, in Smith v. Lawson (1997), the defendant had been given an occupation licence of the disputed land for life, and so her possession was not adverse. Although this meant that the claimant had no right to recover the land during the defendant’s life, it also meant that the defendant had no claim in adverse possession. However, once time has started, it is sufficient to establish that the full period has been completed at any time before the paper owner seeks to enforce his title to the land. It is not necessary to establish that the adverse possessor is in adverse possession at the moment the action for recovery is commenced, provided that the period has by then been completed.36 For example, if S, the adverse possessor, has adversely possessed A’s land for 12 years, but has left possession before A commences an action to recover the land, A’s title will be barred and he will be unable to recover the land from whomever now is in possession. A’s title to the unregistered land has been extinguished, and the person in possession has the best relative title. Of course, if S has left the land and nobody is in possession, then A may retake possession, but will, himself, have to wait a further 12 years before being confident of defeating a returning S. Note, however, that the issue is complicated if the paper owner applies for first registration of title after the adverse possessor has completed 12 years adverse possession, In that case, at first registration of title, the registered proprietor (against whom adverse possession has run for the limitation period) is bound only by adverse possession of which he has notice, or by the rights of an adverse possession as an overriding interest if (but only if) the adverse possessor is in actual occupation.37 This means that, absent notice, an adverse possessor going out of possession, even after completing the relevant period of adverse

35Chung v. Lam (1996).

36Hounslow v. Minchinton.

37Section 11 of the LRA 2002 and Schedule 1, paragraph 2.

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possession against an unregistered title, will have no rights against the new registered proprietor.38

11.2.2 Stopping the clock of limitation for unregistered land

Assuming that the land is unregistered land, if the claimant is in adverse possession of the land, this means that the paper owner has the limitation period (usually 12 years) to assert their paramount title and recover possession. Of course, a successful action for possession by the paper owner before expiry of the period will necessarily ‘stop the clock’ and any claim of adverse possession will have to begin afresh. However, there are other circumstances that may effectively bring an uncompleted period of adverse possession to an end. The most obvious is where the adverse possessor acknowledges the paper owner’s title in writing, either expressly, or by some other act, such as accepting a lease. Likewise, the payment of rent by the adverse possessor is an acknowledgment of the owner’s title.39 However, apart from these examples, it is not clear what other actions by the paper owner will be sufficient to ‘stop the clock’, and every case falls to be determined on its own facts. In Moran, for example, a letter sent by the paper owner asserting title was not sufficient, although a letter evincing a definite intention to sue may well be. In Ofulue v. Bossert (2008), the adverse possessor’s counter-claim against the paper owner’s assertion of title in court pleadings was taken merely to be an acknowledgment of the claim, not of the title itself. The clearest advice to an owner of an unregistered estate faced with an adverse possessor is to bring court proceedings for possession, or an action for a declaration as to title, as soon as possible. In addition, although it may be sufficient for the paper owner to retake physical possession of the land himself, such self-help is not always successful and may attract the attention of the criminal law. As Smith v. Waterman, (2003) illustrates, the claimant’s possession cannot be interrupted merely by the paper owner going onto the land. Otherwise, a simple entry on the land at some time by the paper owner would always stop the clock of adverse possession. Indeed, as the judge says, factual possession (by the claimant) does not require continuous physical occupation, for much depends on the nature of the land itself. Consequently, recovery of possession through self-help by the landowner in order to ‘stop the clock’ must also be such as to demonstrate a retaking of custody and control of the land.

38It remains unclear whether the adverse possessor could apply for rectification of the register even though under section 11, the registered proprietor was not bound by the adverse possession. We should not forget, however, that the situations in which the first registered proprietor does not have notice of the adverse possession and where the adverse possessor is not in actual occupation will be unusual indeed.

39Sections 29 and 30 of the Limitation Act 1980.

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