Adverse Possession

Adverse Possession. N Sweeney Property Law. 13/09/2025.

Learning Outcomes. By the end of this lecture and the relevant textbook chapter reading, you should be able to: explain the nature of adverse possession explain the case law principles that apply to the three requirements of adverse possession explain what type of situation/circumstance will not stop the clock from running.

The Nature of Adverse Possession. 13/09/2025. Adverse possession is a mechanism which allows a trespasser/ squatter to acquire title to land and displace the rights of the ‘paper owner’. The basic principle is that long use of the land without permission from the paper owner can lead to the squatter having rights over that land. The basis of title is possession, which is reflected in the principle of limitation of actions..

13/09/2025. 4. REQUIREMENTS FOR ESTABLISHING ADVERSE POSSESSION.

Requirements for Adverse Possession. The rules for adverse possession are common for both unregistered and registered title to land: 1. Factual Possession 2. Intention To Possess 3. Possession Must Be Adverse. Thus, the first step to any claim for adverse possession is the claimant proving the above 3 requirements..

Factual Possession. Powell v McFarlane [1979] 38 P & CR 452 Slade LJ at 470 – 471: “It [factual possession] must be a single and exclusive possession… broadly, I think what must be shown is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with and that no-one else has done so… Factual possession signifies an appropriate degree of physical control over the land which is dependent on the facts of the case, including the nature of the land and the way that particular type of land is commonly used or enjoyed.”.

SUMMARY: Principles from Powell v McFarlane [1979]: 1. Factual possession comprises exclusive possession and a sufficient degree of physical possession and control of the land. 2. The degree required will depend on the nature and quality of the land in question and how that land had been previously used. 3. The claimant squatter must also have been dealing with the land for her own benefit as the paper title owner might have done. Slade J’s principles have been approved by HL in Pye v Graham [2003].

The last principle, that the squatter must also have been dealing with the land for her own benefit as the paper title owner might have done was also held in the leading case of:.

Pye v Graham [2002] UKHL 30 In 1984, they cut hay from the land and paid Pye Ltd and continued to use the land for grazing, they maintained the hedges and ditches and generally continued to farm the land as they had previously done so. They had the only key to the gate, thus, Pye Ltd could not have obtained access without their assistance. HL reversed CA and held that the Grahams had adversely possessed the land. Therefore, Pye Ltd could not reclaim it when it had started possession proceedings in 1998. LBW approved the Slade principles and emphasised the need for both factual possession and an intention to possess..

General points: clear evidence of exclusion of other persons is required. Any continued use by the paper owner will usually defeat the trespasser’s claim. Note: A mere trespass is not sufficient – for example the occasional walking over the land could not amount to adverse possession. In Powell v McFarlane [1979] grazing a cow, coupled with making hay and limited repairs to fencing did not suffice..

Generally, the types of actions that MAY amount to sufficient possession: If the land consists of a residential house then living in it would amount to exclusive possession, Similarly, if it is a piece of land enclosing the land by erecting a new fence: Buckinghamshire County Council v Moran [1989] 2 All ER 225 Seddon v Smith (1877) 36 LT 168, 169: ‘Enclosure is the strongest possible evidence of adverse possession’ Or fitting new locks to doors: Lambeth LBC v Blackburn (2001) 82 P & CR 494.

Where land is suitable for very limited uses it will be easier to demonstrate the required degree of physical control. Red House Farms (Thornton) Ltd v Catchpole [1977] 2 EGLR 125 A small island had been formed when a river changed course. The island was unsuitable for any significant agricultural purpose. In these circumstances the trespasser, Mrs Catchpole, was able to establish adverse possession by regularly using it for shooting. The only access to the land was through her land. CA held that there was a sufficient degree of exclusive physical control..

2. The Intention to Possess. NO adverse possession unless the squatter also has an intention to possess the land (animus possidendi). The squatter’s attitude to ownership is irrelevant. He may know that the land belongs to someone else or he may mistakenly believe that it is his. Alternatively, he may never have thought about the question of ownership but simply treated the land as his because it was there and it suited his purposes. Whatever the squatter’s understanding about the ownership of the land: 1. The squatter must intend to exclusively possess the land by taking control of it as if it were his own and excluding everyone else from it….

Slade LJ in Powell v McFarlane [1977] 38 P & CR 452 at 471 – 472: ….the animus possidendi involves the 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.” 1. The squatter must intend to exclusively possess the land by taking control of it as if it were his own and excluding everyone else from it, as far as is reasonably possibly (Powell v McFarlane [1977]).

Does not require that the claimant had the intention to own for the requisite period without the consent of the legal paper title owner: approved by the House of Lords in Pye v Graham [2003]. The squatter must intend to exclusively possess the land by taking control of it as if it were his own and excluding everyone else from it, as far as is reasonably possibly (Powell v McFarlane [1977]) The squatter does not need to have the intention to own without the consent of the legal paper title owner ( HL in Pye v Graham [2003]).

The intention must be demonstrated by evidence of outward conduct. This can be inferred from the acts of factual possession. For example: enclosing land by erecting a new fence OR fitting new locks to doors These acts will usually be taken as convincing evidence that the trespasser intends exclusive possession by taking control as if it were his own and excluding everyone else..

Many cases arise where land is vacant awaiting future development and a trespasser takes up possession in the interim. Now clear the trespasser has the necessary intention, even if he takes up possession with the understanding that the paper owner may wish to use the land in the future What is required for this purpose is not an intention to own but… an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title.” Slade LJ in Buckinghamshire County Council v Moran [1990] 2 All ER 225..

Buckinghamshire County Council v Moran [1990] 1 Ch 623 In 1955 the Council bought a plot of land for the purpose of constructing a bypass many years later. In the meantime, it fenced off the plot from the road.. but not from the garden of the neighbouring house. The council initially sent workmen to cut the grass. From late 1960’s one of the neighbouring owners incorporated the plot into his own garden and started cutting the grass himself, whereupon the Council stopped sending its workmen. The neighbouring house changed hands several times and was bought by Mr Moran in 1971..

Buckinghamshire County Council v Moran [1990] 1 Ch 623 Since his purchase in 1971, Moran always understood that the plot belonged to the Council and that it was intended to be used for the construction of a bypass at some future date. Nevertheless, he continued to use it as if it was part of the garden to his house and cultivated the land At one point he even renewed the lock and chain on a gate in the Council’s fence which fronted the road – so that the only access to the plot was through his garden..

Moran continues. Buckinghamshire County Council v Moran [1990] 1 Ch 623 In 1976 the Council wrote to him objecting to his use of the plot but took no further action for another 9 years. Mr Moran claimed he had the right to use the land until it was needed for widening. The Council eventually issued proceedings against Moran in 1985, claiming possession of the plot. Mr Moran then claimed that he had acquired title to the plot through adverse possession..

Moran continues. Buckinghamshire County Council v Moran [1990] 1 Ch 623 CA held that the Council’s claim was too late as the land had been adversely possessed by Mr Moran. There was no question of Mr Moran having an implied licence to occupy the land pending the Council wishing to make use of it. Moran had acquired complete physical possession of the land. His actions of enclosing the land fully, so that the only access was via his garden and locking the gate keeping everyone out including the Council unequivocally demonstrated his intention to possess the land..

3. Possession must be Adverse. Adverse possession must be inconsistent with and contrary to the rights of the paper owner. This does not mean that possession must necessarily cause an inconvenience or annoyance to the paper owner (Treloar v Nute [1976] 1 WLR 1295). There is not even a requirement that the paper owner should be aware that the trespasser is in possession (Rains v Buxton (1880) 14 ChD 537). However, if the possession is enjoyed by virtue of some legal entitlement then it cannot be adverse. Hence, the existence of a lease or licence will defeat a claim as the possession, even if exclusive, is by the agreement of the paper owner, see Pye v Graham [2002] UKHL 30.

Thus, the owner must not have given permission: the owner must not consent: Smart v Lambeth London Borough Council [2013] EWCA Civ 1375 Lambeth local authority had given consent for the occupiers to be there. As such there was no adverse possession. See also: Zarb v Perry 2011 EWCA Civ 1306, CA emphasised the distinction between: the owner’s acquiescence which is compatible with possession being adverse, and positive consent or permission which is incompatible with adverse possession..

Summary Requirements for Adverse Possession. 2. The Intention to Possess An intention to possess requires an intention to exclude the world including the paper title owner, as far as it is reasonably practical to do so. It does not require that the claimant had the intention to own without the consent of the legal paper title owner (approved by the House of Lords in Pye v Graham (2003)). The intention must be demonstrated by evidence of outward conduct. (Prudential Assurance Co Ltd v Waterloo Real Estate Inc. (1999))..

Stopping the Clock. 13/09/2025. 25. Assertions by Paper Owner of their legal rights NOT stop time running Mere assertions by the paper owner about his legal rights will be ineffective to stop time running in favour of a trespasser. Note that the Council’s written objections to the trespass had no effect in Buckinghamshire County Council v Moran (see above) See also: Mount Carmel Invests. Ltd v Peter Thurlow Ltd [1988] 3 ALL ER 129.

Stopping the Clock. 2. Commencement of Proceedings MOST EFFECTIVE way to stop time running The most effective way to stop time running is for the paper owner to commence proceedings for possession before the 12 years or in the case of the new LRA 2002 regime, before the squatter has applied for registration which will be after 10 years of possession. If successful, the trespasser’s potential right to title is brought to an end..

Stopping the Clock. 3. The legal owner grants a Unilateral Licence SEEMS to stop time running The following case suggests that the paper owner may be able to stop time running in favour of a trespasser simply by granting him a unilateral licence to occupy the property. As the trespasser is then in possession by virtue of the licence, this can no longer be said to be ‘adverse’. BP Properties Ltd v Buckler (1987) 55 P & CR 337 Buckler lived in a farmhouse with his elderly mother. She had previously held under a tenancy but this had expired long ago and the family had continued in possession as trespassers. In 1974, BP (who owned the freehold) attempted to gain possession of the house before the expiry of the 12 year limitation period..

Stopping the Clock. 3. The legal owner grants a Unilateral Licence SEEMS to stop time running BP Properties Ltd v Buckler (1987) 55 P & CR 337 Due to local hostility they withdrew the action and wrote to the mother telling her that she could live in the house rent-free for the rest of her life. On her death, 12 years later, BP sought possession from Buckler who then himself claimed title by adverse possession. Court of Appeal granted possession to BP. The mother had been in possession by virtue of the licence granted in 1974 and this had stopped time running. Buckler had only himself been in adverse possession from the date of his mother’s death and BP were not therefore statute-barred from bringing the action against him..

Stopping the Clock. 4. Written and Signed Acknowledgement of Paper Owner’s Title Will stop time running A written acknowledgement signed by the trespasser of the paper owner’s title will stop the clock and start the twelve year limitation period running afresh (Limitation Act 1980, ss. 29 & 30). Such an acknowledgement may be express or may be implied from some other written statement. For example in: Lambeth LBC v Bigden (2000) 33 HLR 478 The trespasser was held to have provided such an acknowledgement when he wrote to the paper owner requesting them not to sell the property..