Law Sessions With Jennifer Housen’s Podcast

Squatter's Rights: The Legal Path to Ownership

Subscriber Episode • • Jennifer Housen • Season 10 • Episode 1

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We explore adverse possession, commonly known as "squatter's rights," examining how possessing land for a certain period can legally transfer ownership from paper owners to squatters under English land law.

• Possession gives a proprietary right to land, supporting the maxim "possession is nine-tenths of the law"
• Adverse possession requires factual possession, open possession, intention to possess, and no written acknowledgment of the paper owner's title
• Paper owners must assert their rights within a specific time period or risk losing them permanently
• The Lambeth v. Blackburn case demonstrates how changing locks and making a property habitable constitutes adverse possession
• Intention doesn't require believing you own the land - even temporary squatters expecting eviction can gain title after sufficient time
• The landmark J.A. Pye v. Graham case clarifies that possession can be adverse even when squatters would accept permission if offered

In the next session, we'll continue our exploration of adverse possession, reviewing intent requirements and examining the specific rules for unregistered land.


💡⚖️ Let’s learn the law together—one session at a time!

Speaker 1:

Music. Welcome to Law Sessions. I am Jennifer Howson.

Speaker 1:

In this section for land law adverse possession, we will consider squatter's rights, which is the other name for adverse possession, and we will see how, if you possess land for a certain period of time, it actually becomes yours after that period of time has passed. So if we go straight into the history, really, really, and consider how English land law has approached this, well, english land law focuses on possession and the idea that the fact of possession gives a right to possession. There is a term possession is nine-tenths of the law and this is really where it came from. So, for example, if you are in possession of Blackacre, that in itself gives you a proprietary right to possession. If I come along and show you that the freehold was conveyed to me some years ago and that you are my tenant or my licensee, that may then show that I have a better right than you. Your right then to possession, of course, is derived from or carved out of and is certainly inferior to my right to possession. Now, when the tenancy or license comes to an end, my earlier and superior right to your possession will, of course, prevail. If you have taken possession as they say in common parlance a squatter then my right to possession is earlier and superior to your right to possession and, as I say, I will certainly prevail. But the law of adverse possession says in general terms that I must assert my right to possession within a certain period of time. If I do not, then my right to possession is lost and yours becomes the superior right and, in effect, you become the freehold owner in place of me, the freehold owner in place of me.

Speaker 1:

Technically, the adverse possessor does not acquire the title of the dispossessed owner. The moment you take adverse possession of my land, you have a title, a freehold title based on possession. At the same time, I still have my title, sometimes referred to in the context of the paper title, being based, of course, on the documents of title. That is, I have my freehold title, which gives me a right to possession which I can assert by bringing an action for recovery of the land. If you like, you can say that at this stage there are two owners of the land. If your adverse possession continues for the required period, your title gains superiority. In fact, it becomes indefeasible by my title and indeed, under Section 17 of the Limitation Act 1980, my title will then become extinguished Really, then one should not talk of transferring ownership by adverse possession, rather of one ownership being extinguished and another ownership being acquired.

Speaker 1:

Now, for a person to acquire a title in this way, certain essential conditions must be satisfied. So, for convenience, I will refer to the person dispossessed as the paper owner, meaning the person with the documentary title. Possession operates to destroy the legal freehold of the paper owner and replace it with the legal freehold of the adverse possessor. You will hear me refer, of course, to the claimant, because you will see that with adverse possession you can have the person who starts the adverse possession, but it ends up with a completely other person at the point where the adverse possessor's title is sought. Now, the term squatter is sometimes used instead of the adverse possessor. Insofar as it has any particular legal meaning, it means the same as an adverse possessor, but it tends to be used commonly to mean someone taking adverse possession of residential accommodation knowing that she has no paper title, and adverse possession, of course, is not so confined. In a nutshell, the essentials of adverse possession are that there must be a discontinuance of possession by the paper owner, followed by possession of the squatter or dispossession of the paper owner by the squatter In respect of possession. There must be factual possession, open possession, intention to possess and the squatter has not acknowledged the paper owner's title in writing.

Speaker 1:

Now, regarding the dispossession of the paper owner, the paper owner may never have taken a possession. He may have, or rather he may not have, taken up occupation. He may have been in possession and abandoned it, or he may have been ousted by the claimant. But although the 1980 Act, at Section 15th of Section 6 and Schedule 1, part 1, use both terms, discontinued and dispossessed, it really does not make any difference how the paper owner comes to be out of possession. It's irrelevant. The point is that it is not enough for him to be out of possession. There must also be an adverse possessor in possession. So if somebody leaves their land for the requisite period, which we'll discuss later, that doesn't mean he loses it. It must be that he has discontinued possession and of course there is an adverse possessor in possession of the land, because it is the two together which exist Now. Whereas the courts will require little evidence of activity in relation to the land to hold that the paper owner is still in possession, they will certainly require clear evidence to convince them that someone has assumed an adverse possessor's title, it is the latter which is crucial.

Speaker 1:

Now, in respect of factual possession, this is a question of fact and degree, depending on the present and ordinary use of the land in question. So the point is, what might amount to adverse possession, for example as it relates to a house, may not be the same, for example, if you're looking at agricultural farmland. So you look at the ordinary use of the land in question and, of course, consider whether there is observable exclusive physical control. Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, although there can be a single possession exercised on behalf of several persons jointly. So you will see the differences.

Speaker 1:

But let's assume for a moment that I am in possession and then you adversely possess against me. Well, the time period will count as one. Certainly, as we will see later on, in unregistered land. But let's say, for example, I was on the property for a few years and then I sold you what right I had in that property. Well, you, as my successor in title, the period of time you're on, will also count towards the period of time required for adverse possession. So an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. It's impossible, because then you do require the discontinuance of possession of the paper owner of.

Speaker 1:

What acts constitute a sufficient degree of exclusive physical control must, as I say, depend on the circumstances, in particular the nature of the land and the manner in which the land of that nature is commonly used or enjoyed. Now, everything, as I say, must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that 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. The point, of course, is that if I'm on the land and you pass by and you see me daily farming the land and treating it as my own and putting a fence around it and having my cattle on it, for example, I am dealing with it as if I was the owner. Now, the Court of Appeal case of Lambeth, london Borough Council and Blackburn is worth using as an illustration. Is worth using as an illustration. The Judgment of Law. Justice Clock provides a rather excellent, coherent account of the requirements of adverse possession. And it goes something like this Jack Blackburn had squatted in a block of flats owned by the council after the council's tenant had left, and this was around 1982 or 1983.

Speaker 1:

Now, since then, the council had done absolutely nothing about the flat. Now Jack got in by breaking the padlock which secured the door and he then replaced it with his own lock. Replaced it with his own lock, now by 1988, he had electricity installed, he rewired the flat and made it completely habitable. As to the necessary element of intention, now on the finding of the facts by the judge below, based on Jack's own evidence, he said that when he moved in he did not regard the premises as anything other than a temporary home. He said in terms that this was a squat and that he felt it was so bad that maybe, after having been evicted from a number of previous squats, he would be able to stay there for a while. He did not expect, of course, to be in the premises for more than, say, about six months. He was waiting for an eviction notice from the landlords of the premises, confidently expecting that it would be coming for a period of time any time now, but it certainly carried on for over 12 years. He expected to be evicted, but he had no intention of leaving until he was evicted. He was not even aware of the provisions of the Limitation Act 1980 until the council did, after more than 12 years, sought possession of the property. If the landlord had come along and sought to regularize the position, he would have been delighted to cooperate and agree to pay the rent.

Speaker 1:

It is relatively easy to say whether a person is in factual possession of a residential flat or house. Changing the lock against the paper owner, or enclosing and similarly locking a patch of ground can hardly be seen as anything other than factual possession. At the other end of the factual possession spectrum, though, is if, for example, you're looking at grazing land. Well, if it is of no use except to put your farm animals on to graze, then that use may amount to factual possession. Now, the Blackburn case is interesting for the way in which it clarifies the necessary element of intention, as, in Blackburn, the claimant may know that he has no title to the land. Conversely, he may mistakenly think that he owns it or he has a tenancy. In fact, in many cases of adverse possession, these are cases where both the paper owner and the claimant mistakenly think that the claimant owns a piece of land along a common boundary. It doesn't matter when the claimant knows that he does not have the paper title. The requirement of intention needs careful understanding. If the claimant is in possession, as licensee, of the paper owner, he is not in adverse possession.

Speaker 1:

Not infrequently, claims to title by adverse possession arise where the claimant was in possession as a licensee but is claiming that the license was terminated more than 12 years earlier. Now this was exactly the situation in the leading case in this area, which I urge you to read. It is an extremely important case. It brings all of the cases relating to adverse possession to the fore and it makes you see exactly how this area operates. Now, the leading case, of course, is JA Pye, oxford Limited and Graham case, of course, is JA Pye, oxford Limited and Graham. Now, as I say, a situation might occur where the claimant will be alleging that the license was terminated and that he thereupon became a squatter after that period. Now it's a question of fact whether the claimant was there for the required period as squatter or whether it was there as a licensee.

Speaker 1:

Now, in the absence of an express agreement, as so often in relation to the informal or undocumented creation of interest in land. Intention may have to be inferred from all the evidential circumstances, so from what was said, what was written, what was done at the time. And, as so often happens, people tend not to box their intentions into the formal categories and language of the law. In legal terms, a distinction has to be drawn. On the one hand, the claimant may be saying, in effect, I recognize that I'm here with your permission, as your licensee, I recognize that you can terminate the license, whereupon I will be here without your permission. On the other hand, the claimant may, in effect, be saying I know that I'm here without your permission. I do not intend to stay here without your permission. I do not intend to stay here for 12 years. I do not intend to acquire a title against you by adverse position. I would rather be here with your permission. So if you come along and offer me a license or a tenancy, I shall be very happy to accept it. Indeed, I'm asking you to come and give me a license. I recognize that if you come along this evening and tell me to get out, being the peaceful person I am, I will pack my bags and get out. But nevertheless, until one of those things happen. I am here without your permission.

Speaker 1:

None of this prevents the possession from being adverse, and this was more or less the situation in Blackburn.

Speaker 1:

The borderline between being there with permission and being there without permission but ready to go out when told to, is a fine one, but one that necessarily has to be drawn.

Speaker 1:

What I've said above does emphasize is that what matters is how the claimant sees the present existing relationship with the paper owner, not what he thinks it might or intends it to become in the immediate or less immediate future. If each day, as it were, he wakes up with the latter rather than the former state of mind and if, looking back, those days add up to a continuous period of 12 years, the limitation act gives him the title. It shows, therefore, that in order to have the necessary intention to trespass, or rather to have the necessary intention, the trespasser does not have to regard himself as entitled to exclude the lawful owner from the premises. It is, to my mind, sufficient if he intends to keep the true owner out for the time being and until he is evicted, or, one might add, until he is offered and accepts a license or tenancy. We will now, of course, take a short break and on return we will recap with the necessary intention, as well as consider the position relating to adverse possession in unregistered land.