Land Law ??“ Assignment No 1.
Advise Alfred.
The area of law which Alfred??™s situation concerns is adverse possession. Adverse possession can be defined as ???occupation of land in a manner intentionally inconsistent with the rights of the person entitled to it and without his permission[1]???.
The doctrine of adverse possession under Paragraph 1 (1) Schedule 6 of the Land Registration Act 2002 provides Alfred with the necessary catalyst he requires to commence a claim for the strip of land. However he must provide evidence to support that he was in adverse possession for over 10 years.
Adverse possession is a question of fact and is not always an easy matter to decide.
Buckinghamshire County Council v Moran (1989)[2] provides that Alfred must provide that both factual possession and a requisite intention to possess are evident in his situation if he is to acquire title to the land through adverse possession.
Factual possession provides that Alfred must establish an appropriate degree of physical control over Brenda??™s land, in order to be regarded in adverse possession of it.[3] In order to establish whether or not an appropriate degree of physical control has been exercised over the land, the courts will apply an objective test, which relates to the nature and quality of the land in question.[4] In applying this objective test in Seddon v Smith (1877)[5]; Cockburn CJ recognized that ???Enclosure is the strongest possible evidence of adverse possession??™ i.e. that fencing is always good evidence of possession. It could be considered therefore that the fence which had been in place dividing the boundaries between Brenda??™s and Alfred??™s house, is there to exclude others (including Brenda) from trespassing on the land in question. However, it??™s important to advise Alfred that in Wata-Ofei v. Danquah[6], it was stressed that acts required to take possession of the land will vary depending upon the land in question. Therefore I would not encourage Alfred to become over reliant upon common law decisions.
Alfred must also provide that he had the requisite intention to possess the land. Exactly what the squatter is meant to intend to do has been a trivial issue for many years, however in the case of Buckinghamshire County Council v Moran[7] Slade LJ stated that the squatter must intend to possess the land. However this decision was heavily criticized and the issue has now been resolved at the House of Lords in J.A. Pye (Oxford) Ltd v. Graham[8], where it was held that the squatter merely had to have the intention to possess the land. There is no requirement to have further intention of excluding the owner or of being the owner of the land.
In order for Alfred to establish the requisite intention to possess the land, it is not required that his intention need be hostile in anyway towards Brenda. It may be considered that Alfred regards the land mistakenly as his own anyway, in which case the requisite intention to possess will be easy to establish in accordance with Pulleyn v. Hall Aggregates (1992)[9]. It could be regarded that Alfred does regard the land as is own, even though mistakenly. It would be reasonable for any one to assume that they are in possession of land enclosed within their estate which is separated from there neighbour by a fence. Furthermore, the fact that Alfred was intending to build a garage and incorporate a driveway on this strip of land, supports the idea that he must have regarded the land as his own and therefore must have had the intention to possess the land.
If adverse possession is present in Alfred??™s circumstances, and there appears to be a high chance that the courts would acknowledge this, then the Land Registration Act 2002 plays a more pivotal role in providing Alfred with the opportunities to be registered as the proprietor of the strip of land.
If adverse possession is proved then as Alfred has been in possession of the strip of land for longer than 10 years (on the date of application) he can make an application to the registrar. Once this application has been submitted the registrar must notify the proprietor of the estate to which the application relates, the proprietor of any registered charge on the estate, and such other person as rules may provide[10]. These persons will then have 13 weeks to respond to the application. If there is no response then Alfred is entitled to be registered as the new proprietor of the land[11].
However, as Brenda has already opposed Alfred??™s plans, I am sure she would resist Alfred??™s claim to have a legal entitlement to the land. Therefore there is a strong possibility that Brenda (or any other person covered under Paragraph 2) will require Alfred??™s application to be dealt with under Paragraph 5[12].
Paragraph 5[13] only entitles Alfred to be registered as the new proprietor of the land if one of three conditions is met. In every other situation the application must be rejected. The three conditions are; estoppel, some other right in land and mistake over boundaries[14].
Only one of these conditions is of relevance to Alfred??™s situation; boundary disputes. If any of the conditions covered under Paragraph 5??™s[15] provisions are relevant to the circumstances then this also entitles Alfred to be registered as the proprietor of the strip of land. However, all of criteria must be met under the condition.
It is apparent that Alfred could claim title on the basis of Paragraph 5[16] as his situation is coherent with the provisions provided for boundary disputes.
In the event that Alfred??™s claim fails on this basis then he can make a further application if he remains in adverse possession for a further 2 years. If this were the case and Brenda had failed to take possession proceedings within the two years, then she stands to lose the land to Alfred.
If Alfred does obtain proprietorship to the land then he will be subject to the same interests that bound the land previously.
Word Count: 1,000
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[1] Oxford Dictionary of Law; Oxford University Press 1997, pg 17.
[2] Buckinghamshire County Council v Moran (1989) 3 WLR 152
[3] Powell v MacFarlane (1977) 38 P. & C.R. 450 at 472 per Slade J.
[4] West Bank Estates Ltd v. Arthur (1967) A.C. 665 at 678-679, per Lord Wilberforce.
[5] Seddon v Smith (1877) 36 L.T. 168.
[6]Wata-Ofei v. Danquah (1961) A.C. 1238.
[7] Buckinghamshire County Council v Moran (1989) 3 WLR 152
[8] J.A. Pye (Oxford) Ltd v. Graham (2001) 2 WLR 1293.
[9] Pulleyn v. Hall Aggregates (Thames Valley) Ltd. (1992) 65 P. & C.R. 452.
[10] Land Registration Act 2002; Schedule 6; Paragraph 2.
[11] Land Registration Act 2002; Schedule 6; Paragraph 4.
[12] Land Registration Act 2002; Schedule 6; Paragraph 5.
[13] Land Registration Act 2002; Schedule 6; Paragraph 5.
[14] Land Registration Act 200; Schedule 6, Paragraph 5.
[15] Land Registration Act 200; Schedule 6, Paragraph 5.
[16] Land Registration Act 200; Schedule 6, Paragraph 5.
