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Land Adverse Possession Notes

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This is an extract of our Land Adverse Possession document, which we sell as part of our Land Law Notes collection written by the top tier of Oxford students.

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supervision two

is adverse possession justified?
Howard and Hill argue the 'length of time' is not in itself a justification, instead, as Holmes suggests, the justification is that it is the "deepest instincts of man" that something you use and enjoy is important to you. Dockray suggested 4 reasons we need adverse possession, incorporating three from the Law Comm report 1977: protect defendants, encourage claimants not to sleep on their rights, ensure a person feels confident that he has a right after a certain period of time and finally, to facilitate the investigation of title in unregistered land.

Factual possession:

The test: Powell v McFarlane [1977] Slade J see handout "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". Reaffirmed in JA Pye (Oxford) Ltd v Graham [2003]

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Discontinuance - the person in possession abandons possession and another person takes it. Dispossession - a person coming in and putting another out of possession.

acknowledgement of title If S formally recognises C's title, the clock of adverse possession restarts from the moment the title is recognised s.29 and 30 Limitations Act 1980. Ofolue v Bossert [2009] POs had let building to tenants while they went abroad. Since 1981 the building had been possessed by B who had been given possession by the previous tenant. B claimed adverse possession in 2003, when original proceedings had started in 1987 (well within the limitation time). POs argued that B's belief that he was a tenant precluded an adverse possession since he had acknowledged that he was not owner - held it did amount to an acknowledgement but that because the acknowledgement was made over 12 years ago, B's claim succeeds.

Applying the test: If the squatter can show he is positively using the land, that is indicative of factual possession if the squatter shows he is excluding others from the land, this too is very indicative

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Geographical extent of adverse possession is not limited to the factual possession e.g. Roberts v Swangrove Estates
[2007] the claimant occupied a terraced house and excluded all others except his own guests - he has adversely possessed despite not being able to show he had occupied a back room upstairs. Is it possible to adversely possess part of a building? Held in Ramroop v Ishmael and Heerasingh [2010] that this is possible since land can be possessed horizontally, but would only be possible where it is a self-contained residential flat, not a communal living space.

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Car parking - can be an easement, so to adversely possess you would have to go above and beyond normal use. Paveledes v Ryesbridge Properties Ltd [1989] business had a car park but wasn't big enough so the staff parked on neighbouring land. Court held that it did not constitute adverse possession because the neighbouring land was huge and amount of cars parked on it was too small to amount to possession. Simpson v Fergus [2000] road behind a road of terraced houses had no owner, so one of the terraced house owner's marked 4 spaces in the road and enforced that no one could use them except his guests. Court held that you could not adversely possess by intention alone, but he had no factual possession since all he had done is put up a sign - no fencing. Parshall v Bryans [2012] one of the owners of a house bought some bollards to mark out a parking space and put a chain between the bollards - this did constitute adverse possession because he had done enough to physically demarcate the space. Grazing animals - Powell v McFarlane [1977] not enough to constitute possession, however in JA Pye v Graham
[2003] the fact that they fenced off/had a locked gate was sufficient. Cultivating land - Hounslow LBC v Minchinton [1997] 3 feet strip of land at the bottom of a garden - squatter was cutting the hedge, weeding the land, enclosed it and had a compost heap. Although these acts weren't enormously substantial, they were sufficient in the context because it was the only way you could possess a 3ft strip of suburban land. Dyer v Terry [2013] parties arguing about the required degree of cultivation necessary, and they tried to argued that if you plant bulbs, that's very different from other types of flowers because they flower year to year once planted, whereas other flowers need more active gardening. Judge said it all depends on the facts, it is a clever distinction but it depends on the type of land as to whether this will be a factor.

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