Adverse possession is where an interest in land can be acquired simply by taking possession of the land
In establishing a claim for adverse possession, the claimant must show that there was
1. Factual possession
2. An intention to possess
3. Both factual possession and an intention possess were exercises over a sufficient length of time
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In establishing factual possession we must show the claimant intended to exclude all others from the land and that s/he had physical possession of the land. Seddon v Smith ruled 'enclosure to be the strongest possible form of adverse possession.
Other acts that can establish factual possession are
- Grazing (JA PYE OXFORD V GRAHAM)
- Works of active maintenance/ improvement (Newingtom v Windyer)
- Construction of buildings/ extensions (Prudential assurance co v Waterloo real estates)
- Trivial acts are not enough (Tecbild v Chamberlain)
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Next we must establish that the claimant had animus possidendi (an intention to posses). This can be shows through 'an intention for the time being to possess the land to the exclusion of all other persons including the paper title owner' - BUCKS CC V MORAN. Any evidence of intention is sufficient and examples include fencing (BUCKS CC V MORAN), locked gates (LAMBETH LBC V BLACKBURN) etc. It must be noted that equivocal acts are not enough (Powell v Macfarlane) and an fencing without an intention to exclude other is not sufficient (Fruin v Fruin)
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Lastly we must establish that this was done over a sufficient length of time. For land of an unregistered nature the law is governed by The Limitation Act 1980 and under S15(1) of the act a squatter can claim possession for land if s/he can show the requisite factual possession and animus possidendi for a period of 12 years ending on the date of application. If this can be proved then the squatter can claim superior title to the land and will defeat the paper titles rights. The squatter can then apply to the registrar to be the registered proprietor.
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For land of a registered nature the law is governed under The Land Registration Act 2002 and under schedule 6 paragraph 1(1) a squatter can make an application to be registered if it can be shows that s/he was in adverse possession for a period of 10 years ending on the date of application. The paper title owner and any other with an interest will then be notified (schedule 6 (2)) and they then have 65 days to write a letter of written objection (Land registration rules 2003 regulation 189). If a letter of objection is made which it most likely will then the squatters claim will be defeated unless one of the exceptions under schedule 6(4) can be proven.
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1. Where it would be unconscionable to reject a claim of adverse possession where an estoppel has taken place
2. Where the squatter has some other right to the land such as where the estate gas been paid for it was never transferred (Bridges v Mees)
3. Where there be a dispute in relation to a boundary
If it any of the above exceptions can apply the Squatter can claim title to the land
If an action has not been taken by the paper title owner then all the squatter needs to do is to show adverse possession for a further two years and then they can make another application to be registered (schedule 6(6)) and this time it will be once and for all accepted and the squatter will become the new registered proprietor (schedule 6(7))
