Manchester Conveyancing Solicitors | Ford Banks Irwin Solicitors - The Property Lawyers in Manchester for Transfer / Lease of Business Premises
Please note: Not to be used or relied upon without legal advice. These notes are for illustration purposes ONLY
continued from page 14 . . .
Adverse Possession of Unregistered Land and Registered Land where a right to be registered was acquired before 13 October 2003
In this section we consider both adverse possession of unregistered Property and the transitional provisions in paragraph 18 of schedule 12 Land Registration Act 2002.
An application for registration under paragraph 18 of schedule 12 Land Registration Act 2002 is not affected by the new regime in respect of registered Property. However a squatter who is able to apply under paragraph 18 of schedule 12 LRA 2002 may also be able to apply under the new regime. Where both applications are made, the Conveyancing Solicitors and Property Lawyers for the squatter will be asked to specify which is to proceed first.
Adverse Possession - the essentials
Conveyancing Solicitors and Property Lawyers for the applicant should show that:
- the squatter has factual possession of the Property
- the squatter has the necessary intention to possess the Property
- the squatter's possession is without the owner's consent, and
- all of the above have been true of the squatter and any predecessors through whom the squatter claims for at least 12 years prior to the date of the application
Factual Possession
In Powell -v- McFarlane (1979) 38 P CR 452 [statement subsequently approved by House of Lords in J A Pye (Oxford) Ltd -v- Graham [2002] UKHL 30] ... Slade J said:
"Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised on behalf of several persons jointly. Thus 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. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed ... Everything 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"
Where the Property was previously open ground, fencing is strong evidence of factual possession, but it is neither indispensable nor conclusive.
The Intention to possess
What is required is "not an intention to own or even an intention to acquire ownership but an intention to possess. (Buckinghamshire County Council -v- Moran (1988) 86 LGR 472, per Hoffman J, approved by House of Lords in J A Pye (Oxford) Ltd -v- Graham [2002] UK HL 30). This means "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 reasonably practicable and so far a the processes of the law will allow.
Where the squatter has been able to establish factual possession, the intention to possess will frequently be deduced from the acts making up that factual possession but this deduction will not always be made, as Slade J explained in Powell -v- McFarlane:
"In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner".
Use of land for access purposes in an example of an equivocal act. Such use over time might give rise to an easement by prescription but is not, by itself, sufficient to establish an intention to possess the land.
Possession without the owner's consent
In Buckinghamshire County Council -v- Moran, Slade LJ explained:
"Possession is never 'adverse' within the meaning of the 1980 Act if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in 'adverse possession' as against the owner of the paper title".
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
. . . continued on page 16 (Manchester Conveyancing Solicitors Property Lawyers for Transfer or Lease of Business Premises 16)
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