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Adverse possession
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==England and Wales== {{Clist adverse possession}} {{main|English land law|Land Registration Act 2002}} Adverse possession is one of the most contentious methods of acquiring property, albeit one that has played a huge role in the [[history of English land law|history of English land]]. Historically, if someone possessed land for long enough, it was thought that this in itself justified acquisition of a good title. This meant that while English land was continually conquered, pillaged, and stolen by various factions, lords or barons throughout the [[Middle Ages]], those who could show they possessed land long enough would not have their title questioned. A more modern function has been that land which is disused or neglected by an owner may be converted into another's property if continual use is made. [[Squatting in England]] has been a way for land to be efficiently [[utility|utilised]], particularly in periods of economic decline. Before the [[Land Registration Act 2002]], if a person had possessed land for 12 years, then at [[common law]], the previous owner's right of action to eject the "adverse possessor" would expire. The common legal justification was that under the [[Limitation Act 1623]] ([[21 Jas. 1]]. c. 16), just like a cause of action in [[English contract law|contract]] or [[English tort law|tort]] had to be used within a time limit, so did an action to recover land. This promoted the finality of litigation and the certainty of claims.<ref>Law Reform Committee, 21st Report, ''Final Report on Limitation of Actions'' (1977) Cmnd 6923, para 1.7.</ref> Time would start running when someone took exclusive possession of land, or part of it, and intended to possess it adversely to the interests of the current owner. Provided the common law requirements of "possession" that was "adverse" were fulfilled, after 12 years, the owner would cease to be able to assert a claim. Different rules are in place for the limitation periods of adverse possession in unregistered land<ref>[[Limitation Act 1980]] ss 15 and 17.</ref> and registered land.<ref>[[Land Registration Act 1925]] s 75 or [[Land Registration Act 2002]] Sch 6, depending on when the limitation period is completed.</ref> However, in the [[Land Registration Act 2002]] adverse possession of registered land became much harder. In recent times the Land Registry has made the process of claiming adverse possession and being awarded “title absolute” more difficult. Simply occupying or grazing the land will no longer justify the grant of title, instead the person in adverse possession must demonstrate commitment to own and utilize the land to the exclusion of all others. Another significant limit on the principle, in the case of leases, is that adverse possession actions will only succeed against the leaseholder, and not the freeholder once the lease has expired.<ref>''[[Fairweather v St Marylebone Property Co Ltd]]'' [1963] AC 510.</ref> ===Land Registration Act 2002=== {{main|Land Registration Act 2002}} The [[Land Registration Act 2002]] received royal assent on 26 February 2002.<ref>Explanatory Notes to the Land Registration Act 2002, para. 1</ref> The rules for unregistered land remained as before. But under schedule 6 of the Land Registration Act 2002, paragraphs 1 to 5, after 10 years the adverse possessor is entitled to apply to the registrar to become the new registered owner. The registrar then contacts the registered title holder and notifies him of the application. If no proceedings are launched for two years to eject the adverse possessor, only then would the registrar transfer title. Prior to the Land Registration Act 2002, a land owner could simply lose title without being aware of it or notified. This was the rule because it indicated the owner had never paid sufficient attention to how the land was in fact being used, and therefore the former owner did not deserve to keep it.{{citation needed|date=March 2024}} Before 2002, time was seen to cure everything. The rule's function was to ensure land was used efficiently.<ref>{{cite journal |last=Stake |first=J.E. |title=The Uneasy Case for Adverse Possession |volume=2000–2001 |issue=89 |journal=Georgetown Law Journal |page=2419}}</ref> ===Requirements=== Before the considerable hurdle of giving a registered owner notice was introduced in the [[Land Registration Act 2002]], the particular requirements of adverse possession were reasonably straight forward. First, under schedule 1, paragraphs 1 and 8 of the [[Limitation Act 1980]], the time when adverse possession began was when "possession" was taken. This had to be more than something temporary or transitory, such as simply storing goods on a land for a brief period.<ref>e.g. ''[[Leigh v Jack]]'' (1879) 5 Ex D 264.</ref> But "possession" did not require actual occupation. So in ''Powell v McFarlane'',<ref>(1979) 38 P&CR 352.</ref> it was held to be "possession" when Mr Powell, from the age of 14, let his [[cows]] roam into Mr McFarlane's land. The intruder must also show that they were dealing with the land as an occupying owner might have done, and that no one else had done so. The second requirement, however, was that there needed to be an [[intention]] to possess the land. Mr Powell lost his claim because simply letting his cows roam was an equivocal act: it was only later that there was evidence he intended to take possession, for instance by erecting signs on the land and parking a lorry. But this had not happened long enough for the 12-year time limit on McFarlane's claim to have expired. As a result, proving intention to possess is likely to rely heavily on the factual matrix of the case and the squatters' factual possession. In ''[[Clowes Developments|Clowes Developments (UK) Ltd]] v Walters and Others [2005] EWHC (Ch)'', the squatter cannot be found to have an intention to possess if they mistakenly believe that they are on the property with the permission of the title owner.<ref>{{cite web |title=Clowes Developments (UK) Ltd. v Walters & Ors {{!}} [2005] EWHC 669 (Ch) {{!}} England and Wales High Court (Chancery Division) {{!}} Judgment {{!}} Law {{!}} CaseMine |url=https://www.casemine.com/judgement/uk/5a8ff7c760d03e7f57eb207c |access-date=2024-01-27 |website=www.casemine.com}}</ref> Third, possession is not considered "adverse" if the person is there with the owner's consent. For example, in ''BP Properties Ltd v Buckler'',<ref>{{cite web |url=https://www.casemine.com/judgement/uk/5a8ff6fc60d03e7f57ea54c5 |title=BP Properties Ltd v Buckler |access-date=27 May 2021}}.</ref> Dillon LJ held that Mrs Buckler could not claim adverse possession over land owned by BP because BP had told her she could stay rent free for life.<ref>(1988) 55 P&CR 337.</ref> Fourth, under the [[Limitation Act 1980]] sections 29 and 30, the adverse possessor must not have acknowledged the title of the owner in any express way, or the clock starts running again. However, the courts have interpreted this requirement flexibly. ===Human rights challenges=== In ''[[JA Pye (Oxford) Ltd v Graham]]'', Mr and Mrs Graham had been let a part of Mr Pye's land, and then the lease had expired. Mr Pye refused to renew a lease, on the basis that this might disturb getting [[Town and country planning in the United Kingdom|planning permission]]. In fact the land remained unused, Mr Pye did nothing, while the Grahams continued to retain a key to the property and used it as part of their farm. At the end of the limitation period, they claimed the land was theirs. They had in fact offered to buy a licence from Mr Pye, but the [[Judicial Committee of the House of Lords|House of Lords]] held that this did not amount to an acknowledgement of title that would deprive them of a claim. Having lost in the UK courts, Mr Pye took the case to the [[European Court of Human Rights]], arguing that his business should receive £10 million in compensation because it was a breach of his right to "peaceful enjoyment of possessions" under [[Protocol 1, article 1]] of the [[European Convention on Human Rights]].<ref>The point has been made by O. Jones, ''Out with the Owners: The Eurasian Sequels to "J A Pye (Oxford) Ltd v. United Kingdom"'' (2008) [https://ssrn.com/abstract=1688188 27 Civil Justice Quarterly 260–276], that adverse possession should be incapable of infringing the ECHR's concept of the right to property precisely because the person deprived has given up "possession".</ref> The court in its [[Grand Chamber of the European Court of Human Rights|Grand Chamber]] rejected this, holding that it was within a national government's [[margin of appreciation]] to determine the relevant property rules.<ref>[2008] 1 EHRLR 132.</ref> The House of Lords in ''Ofulue v Bossert'' in 2009 confirmed this understanding.<ref>{{cite web |title=Ofulue & Anor v Bossert [2009] UKHL 16 (11 March 2009) |url=https://www.bailii.org/uk/cases/UKHL/2009/16.html |at=Paragraph 68 |access-date=2021-02-03 |website=www.bailii.org}}</ref> ===Timing=== For registered land, adverse possession claims completed before 13 October 2003 (the date the Land Registration Act 2002 came into force)<ref>Section 1 The Land Registration Act 2002 (Transitional Provisions) (No 2) Order 2003).</ref> are governed by section 75(1) and 75(2) of the [[Land Registration Act 1925]]. The limitation period remains the same (12 years) but instead of the original owner's title to the land being extinguished, the original owner holds the land on [[Trust law|trust]] for the adverse possessor.<ref>Section 75(1) Land Registration Act 1925.</ref> The adverse possessor can then apply to be the new registered proprietor of the land.<ref>Section 75(2) Land Registration Act 1925.</ref> For registered land, adverse possession claims completed after 13 October 2003 follow a different procedure. Where land is registered, the adverse possessor may henceforth apply to be registered as owner after 10 years<ref>Schedule 6 Paragraph 1 Land Registration Act 2002.</ref> of adverse possession and the Land Registry must give notice to the true owner of this application.<ref>Schedule 6 Paragraph 2 Land Registration Act 2002.</ref> This gives the landowner a statutory period of time (65 business days) to object to the adverse possession, object to the application on the ground that there has not actually been the necessary ten years' adverse possession, or to serve a counter-notice. If a counter-notice is served, then the application fails unless * it would be unconscionable because of an equity by [[estoppel]] for the registered proprietor to seek to dispossess the squatter and the squatter ought in the circumstances to be registered as proprietor, or * the squatter is for some other reason entitled to be registered as proprietor, or * the squatter has been in adverse possession of land adjacent to their own under the mistaken but reasonable belief that they are the owner of it, the exact line of the boundary with this adjacent land has not been determined and the estate to which the application relates was registered more than a year prior to the date of the application. Otherwise, the squatter becomes the registered proprietor according to the land registry. If the true owner is unable to evict the squatter in the two years following the first [unsuccessful] application, the squatter can apply again after this period and be successful despite the opposition of the owner. The process effectively prevents the removal of a landowner's [[right to property]] without their knowledge, while ensuring squatters have a fair way of exercising their rights. Where a tenant adversely possesses land, there is a presumption that they are doing so in a way that will benefit the landlord at the end of their term. If the land does not belong to their landlord, the land will become part of both the tenancy and the [[Reversion (law)|reversion]]. If the land does belong to their landlord, it would seem that it will be gained by the tenant but only for the period of their term.<ref>''[[Smirk v Lyndale Developments Ltd]]'' [1974] 3 WLR 91.</ref> Since September 2012, squatting in a residential building is a criminal offence, but this does not prevent title being claimed by reason of adverse possession even if the claimant is committing a criminal offence.<ref>{{cite news |last=Blake |first=Joseph |date=31 August 2012 |url=https://www.theguardian.com/commentisfree/2012/aug/31/criminalising-squatting-poor-rich |title=Criminalising squatting hurts the poor and benefits the rich |newspaper=The Guardian}}</ref><ref>[http://www.legislation.gov.uk/ukpga/2012/10/section/144/enacted "Legal Aid, Sentencing and Punishment of Offenders Act 2012"]. The National Archives.</ref> This was confirmed in ''Best v Chief Land Registrar'',<ref>{{cite web |title=Best v The Chief Land Registrar & Anor [2014] EWHC 1370 (Admin) (7 May 2014) |url=https://www.bailii.org/ew/cases/EWHC/Admin/2014/1370.html |access-date=2021-02-03 |website=www.bailii.org}}</ref> where it was held that criminal and land law should be kept separate.
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