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ADVERSE POSESSION
It is a method of gaining legal title to real property by the actual, open, hostile and
continuous possession of it to the exclusion of its true owner for the period prescribed
by law. In order to claim title by adverse possession, the squatter must show that:

he has been in possession of the land

the possession had been adverse
the adverse possession has lasted for the prescribed time

How is Adverse Possession established?

Adverse possession may be established by demonstrating the required degree of
exclusive physical possession of land, coupled with an intention to possess the land to
the exclusion of all other including the paper owner i.e. factual and intentional
possession of land.

Physical Possession of Land

The adverse possessor must show a physical assumption of possession i.e. the claimant
has exclusive possession of the land without the permission of the landowner. It is a
question of fact.
Factual possession means a sufficient degree of physical custody and control for ones
own use.
As per Slade LJ in (POWELL V MCFARLANE); the possession must be actual, open,
continuous, exclusive, notorious and unconcealed. It is not necessary for the paper
owner to be aware that they have lost possession.
Also the squatter is under no obligation to draw owners attention towards what is
happening (TOPPLAN ESTATES LTD V TOWNLEY).
Small acts of custody and control might suffice if the land has been abandoned or is
inaccessible by paper owner or is of such quality that it does not readily admit of
significant possessory acts (RED HOUSE FARMS V CATCHPOLE) (WILLIAM V JONES) (DYER V
TERRY).

An Intention to Possess: animus possidendi

According to Slade LJ in (POWELL V MCFARLANE) a squatter must also have the intention to
possess the land to the exclusion of all others.
It is the intention, in ones own name and on ones own behalf, to exclude the world at
large including the owner so far as it is reasonably practicable and the processes of the
law will allow.
The squatter must make it clear to the world, including the owner (if he is present) that
he intends to possess and not own the land through an outward conduct (PRUDENTIAL
ASSURANCE V WATERLOO) (BUCKINGHAMSHIRE COUNTY COUNCIL V MORAN).
It is not fatal to the squatters claim if he took possession mistakenly believing that he
was entitled to the property, either as a tenant or as a freehold owner (LODGE V
WAKEFIELD CITY COUNCIL) (HUGHES V COOK).
It is irrelevant to question why the squatter is occupying the land. The only relevant
issue is that he intends to possess the land (WILLIAMS V JONES).

Possession must be Adverse

Possession must be a non-consensual occupation of land. The adverse possessor in
possession is a trespasser. So, anyone taking possession with the consent of the owner
will not be in adverse possession.
A consent may be either expressed or implied.
Where a squatter correctly or mistakenly believes that he has the owners consent to
possess the land (ARCHANGEL V LAMBETH) or an attempt to negotiate sale of land several
times made by the squatter (COLIN DAWSON V KINGS LYNN) (BATSFORD ESTATES V TAYLOR),
negates adversity, for the squatter acknowledges the superior title of the owner of land.
If consent is given by the paper owner, it must be shown during the accumulated time
period for any acknowledgment by the squatter after the accumulated time period does
not negate adverse possession (MITCHELL V WATKINSON).
WILL

SQUATTERS

POSSESSION

BE

CONSIDERED

ADVERSE

WHEN

THE

OWNER

IS

DELIBERATELY NOT USING THE LAND BECAUSE HE IS KEEPING IT FOR SOME SPECIAL USE IN THE
FUTURE?

If the owner could show that he put aside the land in question for a particular future
use, then that land is incapable of being adversely possessed instead it would be held

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that the squatter is holding the land under an implied license from the owner (LEIGH V
JACK).
However, this concept was greatly criticised. It went against the general principle of
adverse possession for a licence encourages the presumption that squatters occupation
is consensual and consistent with the owners present or future enjoyment of the land.
This decision was altered in (PYE V GRAHAM). Lord Browne-Wilkinson approved of the
principles stated by Slade LJ in (POWELL). He emphasized the need for both physical
possession and an intention to possess and held that any intention manifested by the
paper owner is irrelevant.
However, this decision was again thrown into a conflict in (BEAULANE PROPERTIES V PALMER).
It was held that the rule in (PYE) does not apply to unregistered land. A clarification was
received regarding this rule in (PYE V UK) where ECtHR held that the decision in (PYE V
GRAHAM) although in interference with the convention right was a proportionate and a
permissible interference. This rule was solidified in domestic law in (OFFULUE V BOSSENT).

Adverse Possession must last for the Prescribed Time

How long must an adverse possessor be in adverse possession before the paper owner
is statute-barred from binging an action?

Unregistered Land
The limitation period for unregistered land is 12 years from the moment of adverse
possession as per S.15 LIMITATION ACT 1980.
When a squatter has completed the limitation period, under S.15 LA 1980, S.17 of the
Act will come into force. This has the effect of:

barring the dispossessed owners right to recover the land

extinguishing the previous owners title to the estate

WHEN DOES TIME START TO RUN OF THE LIMITATION PERIOD?

The time starts to run against the relevant paper owner of the unregistered title from
the first moment of adverse possession (SMITH V LAWSON).
Once time has started, it is sufficient to establish that the full period has been
completed at any time before the paper owner sought to enforce his title to the land
(HOUNSLOW V MINCHINTON).
WHEN DOES TIME STOP OF THE LIMITATION PERIOD?

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Generally the clock of limitation will end at the end of the 12 year period. However,
there are actions which may stop the clock and so prevent the adverse possessor from
completing the required period which will ensure his claim to fail.

where the paper owner brings a successful action against the squatter in court
for possession before the expiry of the period legal proceedings.

any kind of interruption would stop the time from running s.29 and 30 of LA
1980 hold that an adverse possessor will not will not succeed if they have in
writing acknowledged the paper owners title before the expiry of the limitation
period (OFULUE V BOSSERT).

incapacity of the paper owner stops the clock from accumulating time:
where the paper owner is not of age.
where the owner suffers from a recognized medical illness as per MHA
1983; AMENDED 2005.

where multiple squatters are present on land, a cumulative possession of land is

acceptable. The paper owners right to land will be extinguished, but, neither
squatter will be able claim right to the title of land i.e. both would have to clock
in the remaining limitation time, individually and the next best claim to land will
be rewarded the title.
SALE:

where one squatter sells his clocked time to another, the latter
adverse possessor will only have to clock in the remaining time from the
former squatters limitation period.
WILL:

where an adverse possessor wills his clocked time to another

squatter, then the latter would have to only clock in the remaining time
from the formers limitation period.

Registered Land under LRA 1925

A registered title governed by LRA 1925 i.e. adverse possession was completed before
the entry into force of the LRA 2002 the limitation period of 12 years applies under
s.15 LA 1980.
However, the S.17 LA 1980 does not apply here as a registered proprietor remains the
owner of the estate unless someone else was registered in his place. Accordingly S.75(1)
LRA 1925 provides that the proprietors title will not be extinguished at the end of the
limitation period, but instead would be held by him in a trust for the squatter who would
then apply for registration in his place.
The same principles, as unregistered land, apply when considering whether the paper
owner has managed to stop the clock of limitation.

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This means that a person who has completed 12 years adverse possession and brought
a claim before 13th October 2003 is entitled to be registered as proprietor of the land.
The transitional arrangement in LRA 2002 provide that where the completion of the
limitation period has given rise to a trust before the Act came into force, the squatter is
entitled to be registered as proprietor of the estate under SCH.12, PARA. 18(1) LRA 2002
and s.15 LA 1980 to this effect is eliminated. Provided that the squatter stays in actual
occupation of the land, his right will be overriding under SCH.3, PARA. 2 LRA 2002 and so
will bind anyone who buys the land from the dispossessed owner.

Registered Land under LRA 2002

A registered title governed by the LRA 2002 i.e. adverse possession was completed after
the entry by force of LRA 2002 there is no period of limitation against a registered title.
A registered proprietor cannot lose title merely because another person has adversely
possessed the land for a fixed time period.
However, under the LRA 2002, where a person has been in adverse possession for at
least ten years that person may apply to the registrar to be registered as proprietor as
per SCH.6, PARA 1.
An application procedure is established as per LRA 2002 whereby the adverse possessor
may apply to the registrar to be registered as proprietor of the title once the prescribed
time is completed and this application triggers the statutory scheme spelt out in SCH. 6,
PARA 1-7 in the Act.
The squatter may apply to the register as proprietor of a registered estate provided the
he was in adverse possession of the estate for prescribed time para 2.
On receiving the application, the registrar must give notice to the registered owner and
to those who have an interest on the estate para 3.
Where such notice is given and the paper owner either does not respond or does not
oppose the application, the application may be registered as proprietor of the estate
PARA 4.
However, where the proprietor does respond and opposes the application it will in
general be rejected. However, the Act provides that in three cases the application may
accepted despite opposition to it PARA. 5(1) LRA 2002:

PROPRIETARY ESTOPPEL: as per PARA. 5(2) the applicant is entitled to be registered

where it would be unconscionable for the registered proprietor to seek to

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dispossess the applicant and the applicant ought to be registered as proprietor
(JENNINGS V RICE).
However, this concept has nothing to do with adverse possession because this
would mean that the paper owner had consented to the transfer of the title to
which the squatter has to his detriment relied upon and the paper owner has
backed down from his promise. This concept in adverse possession is held to be
more of a perfector of title.

SOME OTHER RIGHT TO LAND: PARA. 5(3) provides for registration where the
applicant does in fact have some other right to the land, is entitled to be
registered as the proprietor of the estate such as through a bare trust or through
succession.
This idea again has nothing to do with the principles governing adverse
possession for the applicant need not rely on adverse possession to establish title
(CROSDIL V HODDER).

THE BOUNDARY EXCEPTION: PARA. 5(4) provides for registration of the applicant
where:

the land in question is adjacent to his own ,

the exact line of the boundary between the two is unclear or
undetermined
the applicant has been in adverse possession for at least ten years
during the ten year he has reasonably believed that the land belongs to
him (ZARB V PERRY).

If the applicant for registration has been opposed and consequently rejected, the
registered proprietor now has the opportunity to recover from the squatter through
court proceeding or physical presence.
However, if this is not done and the applicant remains in possession for a further 2
years from the date of the application, he may make a further application under PARA. 6
for registration and as per PARA. 7 he will be entitled to be registered as the new
proprietor (BAXTER V MAMNION).
WHEN DOES TIME STOP?
As there is no concept under the LRA 2002 of time barring or limitation, hence the only
way the limitation period for adverse possession ends with either the completion of the
10 or 12 year prescribed time or by an interruption of possession on land. This is
because as soon as the squatter applies for registration, a notice is sent out to the
registered owner who despite any incapacity is free to reject the squatters claim.