ADVERSE POSSESSION: BASIC PRINCIPLES AND

UNREGISTERED LAND
David Thomas

Transcript
The learning objectives of this mini lecture are to distinguish between the three applicable regimes
of law that apply to adverse possession in England and Wales; to understand the nature of
adverse possession; to appreciate what is required to make the possession of land adverse to the
rights of the paper owner; and to consider the regimes of law that apply to unregistered land and to
registered land before the Land Registration Act 2002.
The three regimes of law that may apply are, first, the law of adverse possession as it was before
the 1925 reforms and as it still applies in unregistered land; second, the modifications to that law
that were made by the Land Registration Act 1925; and, third, the new rules brought in by the Land
Registration Act 2002, which apply to claims regarding registered titles where the period of adverse
possession ends on or after 13th October 2003. The original rules remain important to the second
two regimes, which are built on top of their principles. This mini lecture does not cover the rules
brought in by the Land Registration Act 2002.
Adverse possession is a very ancient and fundamental part of land law. It may be traced to the
common law’s desire to ensure that land is used productively, a preference for the realities of use
of land on the ground over the technicalities of legal title. These underlying ideas and justifications
have been significantly affected by the reforms made by the Land Registration Act 2002, which are
dealt with elsewhere.
One basis for the concept of adverse possession is the relative nature of title in land law. In
common law, there is no outright ownership of land (except by the crown); you can only own an
estate in land, a right to possess it for a period of time. Title is based on possession. Anyone with
possession of land has a possessory legal title, which is good against all the world except a person
with a better claim. Thus, a person in adverse possession who is dispossessed by a stranger can
go to court to evict them and protect their possessory title. When you combine this principle with
the law of limitation of actions, which requires a person with a right of action to exercise it within a
limited period, you can see that in time someone with a good paper title may no longer be able to
make use of it and the adverse possessor may have a better title.
The Limitation Act 1980 section 15(1) says that “no action shall be brought by any person to
recover any land after the expiration of twelve years from the date on which the right of action
accrued to him ….”.
In turn, section 17 says “. . .at the expiration of the period prescribed by this Act for any person to
bring an action to recover land … the title of that person to the land shall be extinguished.”
The adverse possessor then has title. It is not that they have the former owner’s title; it is that the
former owner’s title is extinguished, and the adverse possessor’s existing possessory legal title is
unchallenged. You will see that as long as the adverse possession is continuous, it can be by a
succession of adverse possessors; the question is how long has passed since the cause of action
arose, rather than against which person.

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The law on what constitutes adverse possession is set out in the leading case in this area, J A Pye
(Oxford) Ltd v Graham [2002] UKHL 30. What is required is factual possession of the land and an
intention to possess it.
The facts in this case were that Pye was a land development company. They owned four fields
next to Manor Farm, which was owned by the Grahams. They had licensed these fields to the
Grahams up until August 1984. After that Pye refused to enter into further licence agreements as
they intended to apply for planning permission. The Grahams went on grazing and farming the land
until possession proceedings were brought in 1997.
The only vehicular access to the fields was through a gate that was kept padlocked by the
Grahams. The farmer said that he would have preferred to have had a formal agreement and if
Pye had asked him to pay for his occupation, he would have done so.
The House of Lords confirmed that possession had its normal meaning in the law. Factual
possession meant the appropriate degree of physical control and was single and exclusive; only
one person could possess land at any one time. If the occupier had been dealing with the land as
an occupying owner might have been expected to deal with it, and no-one else had done so, the
occupier had factual possession. In addition they need the intention to possess (not to own); that
is, the intention to exclude the world at large, including the paper owner, so far as is reasonably
practicable and so far as the processes of the law will allow. What the farmer said was consistent
with this and the Grahams succeeded.
Note that this case went to the European Court of Human Rights (J A Pye (Oxford) Ltd v The
United Kingdom [2007] ECHR 700). The Grand Chamber of the Court, reversing the Lower
Chamber, ruled that the common law on adverse possession was compatible with the Right to
Property under Article 1 of Protocol 1 to the Convention.
The factual possession of the land involves some degree of physical control, not being trivial or
occasional or equivocal. It is a question of fact in all the circumstances. For example, In Purbrick v
Hackney London Borough Council [2003] EWHC 1871 (Ch), a derelict building was used for
storing the occupier’s equipment and secured by a sheet of corrugated iron and two padlocks. That
was sufficient evidence of factual possession.
The necessary intention to possess is generally easily inferred from the factual possession. It must
be sufficiently clear ‘so that the owner, if present at the land, would clearly appreciate that the
claimant is not merely a persistent trespasser, but is actually seeking to dispossess him’. See
Powell v McFarlane (1979) 38 P&CR 452. In Hounslow London Borough Council v Minchinton
(1997) 74 P&CR 221, a fence enclosing a strip at the bottom of the adverse possessor’s garden
was sufficient evidence of intention to possess, although, again, it depends on the facts; fencing is
not always unequivocal.
If the possession of the land is with the permission, or licence, of the paper owner, it is not
adverse; there is no intention to exclude the paper owner. The old theory that there was an implied
licence where the adverse possession was compatible with the paper owner’s intentions for the
land, as for example the Grahams’ use of the land was with Pye’s intention to develop, is wrong.
The Court of Appeal in Buckinghamshire County Council v Moran [1990] Ch 623 held that there is
no such rule of law and the House of Lords confirmed it in Pye v Graham. However, it may be
possible for a paper owner to stop possession being adverse by granting a licence unilaterally. In
BP Properties v Buckler [1987] EWCA Civ 2 letters from the paper owner permitting the adverse
possessor to remain in the property for the rest of her life were sufficient to stop time running.
In Smith v Molyneaux [2016] UKPC 35 the same rule applied where the owner made it clear to the
possessor that he was allowing him to stay only until he needed the property to develop it. A
licence may be granted by implication, as in Colin Dawson Windows Ltd v King's Lynn and West

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Norfolk BC [2005] EWCA Civ 9, where licence to go into possession was implied during
negotiations to buy the land.
The Land Registration Act 2002 came into force in relation to adverse possession on 13th October
2003. Before that date, under the Land Registration Act 1925 the position in registered land was
not fundamentally different from the position in unregistered; in particular, 12 years’ adverse
possession gave the adverse possessor the right to be registered as the freehold proprietor of the
land. Even after the 2002 Act came into force, so long as the 12 years was completed before the
13th October 2003, the adverse possessor is still entitled under the old rules. In order to make the
law compatible with the Land Registration system, the expiry of 12 years did not itself extinguish
the paper owner’s title – instead the paper owner held the land on trust for the new proprietor, who
was entitled to apply to the Land Registry to be registered in their place. The adverse possessor’s
interest before registration was an overriding interest against the paper owner’s title.
That is the end of this mini lecture. In it we have looked at the nature of adverse possession; at
what is required to make the possession of land adverse to the rights of the paper owner; we have
distinguished between the three applicable regimes of law that apply in England and Wales and
considered those that apply to unregistered land and to registered land before the Land
Registration Act 2002.

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