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We continue our exploration of adverse possession in land law, focusing on the crucial element of intention to possess and examining how it applies in both registered and unregistered land contexts.
• Intention to possess is similar to the intention required to sever a joint tenancy – it concerns the present moment, not future plans • Paper owners cannot unilaterally impose licenses on adverse possessors as the claimant's state of mind is what matters legally • The landmark JA Pye Oxford Limited v. Graham case established that factual possession depends on all circumstances and confirmed these principles for agricultural land • In unregistered land, adverse possession requires 12 years' possession, met occupancy conditions, no disability of the paper owner, and no future interests • Different adverse possessors can combine their periods of possession in unregistered land, either through succession or when one dispossesses another • Special rules apply for leasehold properties, with tenants unable to adversely possess demised property during their lease term • The Crown has special protection requiring 30 years' adverse possession rather than the standard 12
When we return, we'll continue examining the limitations which relate to unregistered land.
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Welcome back to the second part of Land Law Adverse Possession. Now, at the last segment, we considered or we were looking at the point of intention, and what we will do on this segment, of course, is pick up on that intention and, without further ado, we will carry on. Now, in relation to the necessary intention, there is perhaps an analogy with the intention which is necessary in order to sever a joint tenancy. So the discussion we just had in relation to intention being required, you may pause for a moment and consider how it is similar to the intention necessary when one severs a joint tenancy, because in both cases, the intention there in relation to a joint tenancy and the intention here in relation to an intention to possess, it is the intention as to the here and now that matters and how the parties view the relationship in the present moment. For there to be a severance of a joint tenancy, the parties must intend to have separate shares, as at that moment, not at some time in the future, not an intention to talk about separating their shears. And the case, of course, that we may want to consider is Burgess and Ronsley, if you remember. Now, the paper owner cannot unilaterally impose a license on the claimant. It is the state of mind, the intention of the claimant that matters. The paper owner may not seek to disturb the possession because he has a future but no immediate use for the property.
Speaker 1:
This does not of course by itself subsection 4 of the limitations at 1980,. It shall not be assumed by implication of law that the occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter's present or future enjoyment of the land. And I want you to consider for a moment that there was a time cases such as Box County Council on Moran basically showed that if the adverse possessor's use of the land was not inconsistent with the use being put or to be put by the owners, then the fact is that there is no adverse possession. So if, for example, I was going to use my agricultural land to plant corn, for example, and the adverse possessor is currently using it to plant corn, then by and large law would say well, you're not doing anything inconsistent with what the owner would have done or the paper owner would have done. But that being said, the section goes on to say that the provision shall not be taken as prejudicing a finding to the effect that a person's occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case. So, therefore, the proper inference from all the circumstances may be that the paper title owner was treating the claimant as a licensee, and nothing to show that the claimants has rejected this status. For this to be the case, though, there must be some overt act by the landowner or some demonstrable circumstances from which the inference can be drawn that permission was in fact given, because the fact, of course, is that he's seeking to say well, this is my licensee, and of course, that would stop the clock running.
Speaker 1:
Now, an important leading decision of the House of Lords, slightly later than Blackburn, confirms the principles emerging from the case. As it does confirm these principles, I will, of course, mention it only briefly, and it is particularly interesting in that it shows these principles as applied to agricultural land. Again, the entire idea of the intention to possess, moving on from factual possession, is that you look at factually how the land is used in circumstances where the land is for a particular type of use, circumstances where the land is for a particular type of use. So we will look at agricultural land here. But intention to possess again similar to Blackburn you will get a flavor of land. The party concerned, or the claimant in this case concerned, was that they were also willing to pay for the land, but that will not affect the intention to possess, just by way of flagging that up.
Speaker 1:
Now, going back to the case, it was a case of registered land, but it was decided under the Land Registration Act 1925 rather than the 2000 Act. Now, under the 1925 LRA, the only essential difference between the registered land position and the unregistered land position was that where there was a successful adverse possession claim, then the proprietor in registered land under the 1925 Act became trustee for the adverse possessor who was then entitled to be registered as the new proprietor. That is the only difference, but as it related to everything else, the position with unregistered land and registered land prior to 2003 are pretty much the same. The point, of course, is that be careful of exam questions where the examiner starts using anywhere between 1990 and 1992 as a potential starting point, because, depending on what is used, you may find that the old rules may apply or the new rules may apply. So the old rules under the LRA 1925 or the new rules under the 2002 Act, because if it hits 2003, you may find you have to discuss the 2002 Act Now.
Speaker 1:
The land in question consisted of four agricultural fields, though with valuable development potential. The registered proprietor was JA Pye Oxford Limited, who were now seeking to recover the land from the defendants, the Grahams. Now, the Grahams, from about August 1984, had had a series of fixed-term cutting and grazing licenses. After the expiry of the last license they had continued to occupy and farm the disputed land. They did attempt, somewhere around December 1984, to obtain a renewal of the license, but they did not receive any response from Pai. All use of the disputed land after that was by the Grahams and they farmed it just as they were farming their own adjoining farm, and it was without any further license from Pye.
Speaker 1:
Now it was held that from the end of the last license they were in fact in factual possession. The disputed fields were enclosed and only the Grahams had access to them. Whether or not there is factual possession is a question of fact, depending on all the circumstances. Now, in any particular case, it is necessary to look at all the facts to decide whether together they amount to a picture of possession. Now, as in the Lambeth case, there was the intention to possess the paper. Title owner may have no present use for the land, but this does not in itself turn the possessor into a licensee. The Grimms knew they did not own the land. They would have been prepared to enter into a license agreement, but this had not happened. The adverse possession had continued for more than 12 years, and so the Grimms had obtained title by adverse possession.
Speaker 1:
Now, of course, I will now consider adverse possession in unregistered land conveyancing, and then I will go on to look at it in registered land conveyancing. The point, of course, is that whenever you consider the examination, you have to know that this is one area that is certainly fear game for a question asking you to discuss it in both registered and unregistered land. You must know the difference between the two, because the rules are far different. Again, I would remind you that, in respect of unregistered land, the rules there are similar to the rules in registered land prior to October 2003. Now then, in summary, when you consider unregistered land, for there to be adverse possession, there are four requirements there must be at least 12 years having passed, and this is set out under the Limitation Act 1980. The occupancy conditions must also be met and there must be no disability of the paper owner and there can be no future interest in succession or reversion. Now, in general, the necessary period of adverse possession to acquire a title on the Limitation Act 1980 is 12 years. I will say a little bit more about that later on, but that is the requirement. I will consider the occupancy conditions Now.
Speaker 1:
Adverse possession will not necessarily be by the same person throughout the required period, and so I will continue to refer to the person who is seeking to get the adverse possessor's title as the claimant, because it may very well not be the person who started the adverse possession. Now, a title being acquired by adverse possession can be dealt with like any other title. Now, if the first adverse possessor let's call him adverse possessor one is in adverse possession for five years and he then sells it to the adverse possessor two, who takes over possession for a further seven years, then the two periods together can be added by adverse possessor 2 to extinguish the paper owner's title. Now if adverse possessor 2 dispossessed adverse possessor 1, the two continuous periods could still be added together by adverse possessor 2 as against the paper owner, because there has been 12 years continuous adverse possession against the paper owner. But of course, as you will have seen, there would only have been seven years adverse possession against adverse possessor one by adverse possessor two.
Speaker 1:
I would draw your attention to one of the contrasts here with registered land, because periods for different adverse possessors can be used. They can be added together, whether they adversely possess or they are their successors in title. The point here, of course, is that in unregistered land, one adverse possessor who adversely possesses against another adverse possessor can add the period together. Equally, if an adverse possessor in unregistered land sells to somebody else who's a successor in title, you can add the periods. In unregistered land this is different, sorry, in registered land this is different because in registered land you can add up the periods as it relates to successors in title, but you cannot add up the periods when you have one adverse possessor adversely possessing against another squatter.
Speaker 1:
Now then, bearing this in mind, I will use the term claimant, as I say, to mean the person asserting title by adverse possession. In general, the necessary period to acquire title is 12. Claimant automatically becomes a legal freehold title good against the paper owner, which, by not need, the adverse possessor does not need a court to award him adverse possession. It does not have to be recognized in any judicial proceedings. It does not, however, extinguish the proprietary encumbrances which affect the paper owner's title. And this you must understand from the position of the bona fide purchase of a value without notice. Remember that if you have a bona fide purchase of a value without notice, then any equitable interest will not necessarily attach to him or to the land. But where you have an adverse possessor, any other type of interest may very well bind an adverse possessor because he is not a bona fide purchaser for value. And this of course includes any kind of interest which is non-registrable, for example on the Land Charges Act or anything which is subject to the Doctrine of Notice.
Speaker 1:
Now, I said earlier that, in addition to the time period requirement and the occupancy requirement, there can be no disability of the paper owner, nor can there be any future interest in succession or reversion. So there are qualifications to this basic rule to be mentioned. First, if we start looking at leases and reversionary interests, a tenant himself cannot acquire title to the demise property during his lease. Possession as a tenant cannot be adverse. Additionally, in the case of a periodic tenancy, if you remember what this was from leasehold covenants a periodic tenancy which is not in writing, can, but time starts to run in favor of the tenant against the landlord's title. From the end of the first period, any payment, though off-rent or written acknowledgement of the landlord's title, will start. Another periodic acknowledgement of the landlord's title will start another periodic tenancy time running afresh, and it keeps the tenancy alive.
Speaker 1:
Now, if the tenancy takes adverse possession of other land, say belonging to either the landlord or a stranger, the presumption is that the freehold title acquired belongs to the landlord, though incorporated into the lease for its duration. Now, if a tenant is dispossessed by a stranger, the title of the lessee will be barred after 12 years, but not the title of the landlord. The latter will have 12 years from the time the lease ends in which to assert his title. What does that mean? It means that if a squatter seeks to adversely possess land which is currently being leased, then it is only during the lease term that his squatter's title will be good, for when the period of lease expires, he will have to start a new 12-year period running against the freeholder. Now, as it relates to the crown, the crown of course has 30 years in which to recover crown land, and so a squatter will have to complete that period of time. We will pause here, we will take a break. When we come come back, we will continue with the limitations which relate to unregistered land.
