This problem question deals with the law of adverse possession of land Essays

This problem question deals with the law of adverse possession of land Essays This problem question deals with the law of adverse possession of land Paper This problem question deals with the law of adverse possession of land Paper Essay Topic: Law In order to advise Jason as to his position, the principles that govern this area of law must first be identified. Once identified, these rules can be applied to the specific situation at hand. The idea behind adverse possession is that of title by long possession. It is an accepted commentary that certainty of title to land is a social need and occupation of land which has long been unchallenged should not be disturbed. Under the rules of property law a person who takes possession of land immediately assumes property rights over all but those persons who, like the landowner can assert a better title. 2 The law of adverse possession makes it possible for this person to become the legal owner of the land through mere lapse of time by extinguishing the title of the paper owner if he does not take action to recover his land within a given time period. The policy behind this rule is that those who go to sleep upon their claims should not be assisted by the courts in recovering their prop erty. Before there can be a successful claim of adverse possession certain statutory and common law requirements must be fulfilled. The statutory rules are found in the Limitation Act 1980. The legislation says that no action can be brought by a landowner to recover his land after the expiration of twelve years from the date on which the right of action accrued to him, or from the date on which the right accrued to some person through whom he claims. The right of action is seen as having accrued once a landowner has been dispossessed of his land or has discontinued use of it and the land is in the adverse possession of some other in whose favour the period of limitation can run. 5 The result of land being adversely possessed for the entire period of limitation is that the original landowners title is completely extinguished,6 putting the adverse possessor of the land in the position of having a possessory title which is good against the whole world. I will look first at the situation involving the adjoining farmland on the east side. Although Jason purchased Holly Cottage in 1991 and so cannot have been in possession of the disputed land for twelve years, it is still possible for Barrys title to have been extinguished. The legislation states that the adverse possession must be continuous against the landowner7 but need not be maintained by the same individual for the entire time. Successive periods of squatting can be cumulative in effect so there is a possibility that the land has been adversely possessed for sufficient time. If Jason is to prove that Barry has lost his right of action, his chances will initially rely on whether he can show that Jill exercised adverse possession of the disputed land in her time at Holly Cottage. The requirements needed to prove successful adverse possession are to be found in the common law and were reviewed in the Court of Appeal case Buckingham County Council v Moran. 8 Firstly, the owner must lose possession. Possession can only be lost through discontinuance or dispossession. Discontinuance is particularly difficult to prove as even when the landowner is not in actual possession of the land there is a presumption that he has constructive possession of it. 9 Dispossession requires some act, or ouster by the squatter that results in depriving the landowner of use of the land. Secondly, the intruder must take factual possession of the land. This possession must be open rather than in secret, must be gained without the use of force and must not be with the consent of the landowner. Possession must be exclusive10 and the alleged possessor must have exercised an appropriate degree of physical control over the land. Decisions on the sufficiency of possession are dependant upon a situations specific facts, and acts that imply possession in one case may not be adequate to prove it in another. Factors that should be taken into account include the character and value of the land, its natural mode of use and whether the alleged possessor has dealt with the land as an occupying owner might have been expected to deal with it. 11 The third provision is that the possession must be inconsistent with the landowners title. This is the adverse requirement for a successful claim. Any possession that is concurrent with the landowners is not sufficient to support a claim. 12 Possession that is exercised with the permission of the landowner13 or under some lawful title can never be adverse in nature. 14 Finally, the adverse occupier must have an intention to possess the disputed land. The intention required comprises an intention, in ones own name and on ones own behalf, to exclude the world at large, including the owner so far as is reasonably practicable and so far as the processes of the law will allow. 15 Jill used the land for growing fruit. This seems to be a reasonable mode of use as the land is farmland so there is a good chance that Jill will be seen as having took factual possession. The existence of the letter tells us that since at least 1976 her possession would have been without the consent of Barry and therefore adverse to his title. The fact that Barry had an intent to use the land in the future would have no bearing on the claim. It is long sustained possession that is the root to a successful claim,16 not the intentions of the paper owner. 7 We do not know if Jill carried out any equivocal acts that would serve as evidence of her intention to possess the land but it is suggested that she had the necessary intention of exercising her control of the land for her own benefit. 18 Whether or not Barry lost possession is more doubtful and is essential to the claim. If it were found that Barry had lost possession and the other requirements had also been fulfilled, his title wou ld have been extinguished before Jill had sold the property and therefore he would be statute barred from bringing an action against Jason. However, there is no evidence of an ouster on Jills part and it would most likely be presumed that Barry had retained possession. In this case Jills time at Holly Cottage would be irrelevant and Jason will only be able to rely on his own residency. When Jason took occupation of Holly Cottage he fenced in the boundaries and in doing so incorporated the farm land into his own. This act of taking control of the land would be sufficient to dispossess Barry. 19 It would also be evidence of his intention to possess the land, as it would have the effect of excluding all others from the land. 0 It is unclear what Jason uses the farmland for but by excluding all others he has exercised exclusive control over it, so it is likely that he would be deemed to have taken possession of it. His possession is not with the consent of Barry and so is adverse to Barrys title. Jasons mistaken belief that the land was actually his will not hinder his claim as adverse possession can arise through ignorance or mistake. 21 Jason has exercised adverse possession but has not yet done so for the limitation period of twelve years so Barrys title has not yet been extinguished. Written communication such as the letters that Jason has received are insufficient to stop the limitation period running. 22 To end the limitation period Barry must start possession proceedings and bring an action for possession. Jason should remain in possession of the disputed land and if proceedings are not begun within the limitation period Barry will be statute barred from bringing an action and his title will be extinguished. Jason would then have a possessory title that was good against the whole world and could apply to the Chief Land Registrar to be registered as the proprietor. In so far as the barn on the west side of the cottage, as with the farmland there seems to have been no ouster performed by Jill and it is unlikely that the courts would find that the true owner had abandoned it. Jason carried out structural work on the barn and has since used it as a mechanical workshop. There is a good chance that a court would find that Jason took possession of the barn, and the structural work he carried out can be seen as evidence of his intention to possess. He does not have the consent of the landowner so his possession is adverse. The only real doubt about Jason exercising adverse possession in relation to the barn is whether or not the true owner lost possession. It would be for the court to decide if Jasons actions had dispossessed the landowner or if he had discontinued use of his land. If the landowner has not lost possession of the barn Jason could come to some agreement that would entitle him to use it under a form of license. On the other hand, if Jason were found to be exercising adverse possession and the true owner failed to initiate possession proceedings within the limitation period, the title of the true owner would be extinguished. The fact that Jason said he was willing to pay for the use of the barn would not harm his claim, as it does not mean that he does not intend to possess the barn. 23 So if the true owners title is extinguished then Jason has a better title in relation to all others and can apply to be registered as the proprietor. The law of adverse possession is soon to be reformed by the Land Registration Act 2002. This act will only apply to registered estates, and is intended to reduce the scope of adverse possession claims so as to introduce certainty to the law. The idea behind the new scheme is to put the onus of taking the initiative on the squatter, and to give the registered owner notice and opportunity to terminate the adverse possession. This will put a stop to unaware landowners losing out through mere lapse of time. Basically, the position24 will be that after ten years of adverse possession a squatter can apply to become the registered proprietor. The registered proprietor and others with interests will be notified and be given two months to object. If there is an objection the application will be rejected unless the squatter can establish his entitlement, for instance proving that he reasonably believed the land belonged to him. If the application is rejected but the squatter remains in adverse possession for a further two years he can then apply once more to be registered. There can be no objections to this application and the squatter will acquire the property. Under these new regulations Jason may have had a better claim to the disputed pieces of land. In both cases he has been in possession of the land for ten years, meaning he could apply to be registered. If he could prove that it was reasonable for him to have believed the land was his he would have acquired the title to it. If this could not be proved Jason could still gain the land through the inactivity of the true landowners.