Adverse Possession and Prescription of Easements

Hamed’s entitlement will be regulated by the principles of prescription and limitation if ‘The Limes’ is unregistered land or by the Land Registration Act 2002 if title is registered. The latter provides a specific procedure by which he may establish title. The complicating factor in this situation is time. The requisite period for establishing adverse possession under the principles of limitation is 12 years. Hamed has only occupied for 10 years but possession of the property contrary to Fatma’s interests was begun by Charlotte over 12 years ago. Fatma may argue that there has not been the necessary continuous period of adverse possession because she “broke the chain” by evicting Charlotte prior to Hamed’s arrival. In this respect Hamed will be in a far stronger position if title is registered since the requisite period of possession is 10 years. However, Schedule 6, paragraph 11 of the LRA 2002 provides that it is possible for adverse possession to be started by one party and completed by another.

It is commonly said that “possession is nine tenths of the law”. This is a crude but not entirely inaccurate statement of Hamed’s position. Perversely, he may be entitled to acquire a formal interest in ‘The Limes’ by virtue simply of his occupation thereof over a protracted period of time. His possession of ‘The Limes’ is adverse to the legal interest of Fatma. English law founds title to land upon possession: possession itself confers a title to land valid against all except those with a better title to possession. It is necessary to consider the rules relating to prescription and limitation. Prescription is a positive principle which presumes the grant of an easement to the squatter by the owner of the land. Limitation operates negatively and produces the result that after the requisite period of time the claim of the original owner to the land is barred. This produces controversial results as in Ellis v Lambeth BC^[1] in which a squatter effectively asserted title against the local authority to a house worth some £200,000. The principle of limitation provides that if a party does not commence legal proceedings within a stipulated period of time he loses his right to sue. While in fields such as contract and tort this is entirely understandable and justifiable on the basis of the need for certainty and the difficulties engendered by evidence becoming lost or stale, the limitation period in claims relating to land can give rise to this apparently anomalous result. By entering into possession, Hamed acquired an interest in ‘The Limes’. The limitation period in claims of this type relating to land is 12 years. Thus, if he can establish uninterrupted possession contrary to the interests of Fatma for 12 years his estate in the land is protected from challenge by her.

Hamed will have to show the fact of possession and the intention to possess. The former is defined by Slade J in Powell v McFarlane^[2]:

“What must be shown as constituting factual possession is that 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 so.”

This requirement is clearly satisfied since Hamed has been using ‘The Limes’ as his own without interruption. What is perhaps more controversial and potentially of assistance to Fatma is possible doubt as to Hamed’s animus possidendi. This was defined by Slade J (ibid.) as:

“the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with paper title…so far as is reasonably practicable and so far as the processes of the law may allow.”

Hamed began to occupy ‘The Limes’ at the invitation of Charlotte who left a key for him. There is no indication that he knew that the property did not legitimately belong to her. However, Hamed will be assisted by the decision of the House of Lords in Pye v Graham^[3] in which the Defendant occupied the Claimant’s land at first under grazing licences and latterly by default from 1983 to 1997. The Court of Appeal reversed the decision at first instance and held that there had not been the necessary intention to possess because the Defendant had sought renewal of the grazing licence and would have paid for the same had it been requested. However, the House of Lords distinguished between an “intent to possess” and an “intent to own” and found adverse possession. Clearly Hamed has the necessary intent to possess. The fact that Hamed is not specifically aware of Fatma’s ownership is not a bar. By analogy, it has held in Powell (supra) that there is no requirement that an owner should know about the adverse possession. There must be sufficiently open use that the owner has an opportunity to discover it but lack of knowledge does not defeat the squatter’s claim.

If title to ‘The Limes’ is unregistered, Hamed may assert his ownership as a defence to possession proceedings or, proactively, by an application for a declaration. Hamed will be entitled to an estate in fee simple even if Fatma was merely a tenant although in the latter circumstances, his interest would be defeated if the original freehold owner sought appropriately to re-enter at the conclusion of the lease.

By virtue of the Land Registration Act 2002, Hamed may apply to the Land Registrar to be registered as a proprietor of ‘The Limes’ once he has been in continuous occupation satisfying the above requirements of adverse possession for a period of 10 years. If by “shattering his peace” Fatma succeeded in evicting him otherwise than by court order he may still apply provided he does so within 6 months of the eviction. Upon receiving Hamed’s application, the Registrar must give notice of it to the registered proprietor, other parties with interests in the property such as mortgagees and, if it is leasehold, the freehold owner and any intervening landlords. If Fatma or any of the other interested parties does not respond, Hamed’s title will be registered. If Fatma opposes the application, her interest will usually be upheld by the Registrar unless any of the special circumstances contemplated by paragraph 5 of Schedule 6 of the Act applies.

The first would be if (pursuant to para.5(2)) “it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant”. This would be the case if Fatma had made any representation to Hamed which he had relied upon to his detriment. However, in this case, the invitation was issued by Charlotte and it is not she against whom Hamed seeks to assert his right.

Paragraph 5(3) applies in situations in which the applicant has some other right to the land such as under a will or intestacy which is not so here and paragraph 5(4) applies in circumstances relating to reasonable mistake as to boundaries which again is not applicable.

Interestingly, if Hamed is unsuccessful in his application after 10 years but Fatma fails to take further steps to remove him for the ensuing 2 years, Schedule 6, paragraph 6 of the Act allows him to make a further application for registration as a proprietor which would then succeed. This brings the time requirement under the Act in line with the period of 12 years formerly required to establish adverse possession.

Even so, Hamed is not necessarily “home and dry”. Fatma may seek to rely upon the Human Rights Act 1998. If her title is extinguished by completion of the requisite period she might argue that she has been deprived of her property without compensation in breach of Article 1 of the First Protocol which protects rights in property and Article 6 which enshrines the right to a fair trial. Since a court would be applying statutory rules, ss.3 and 4 of the Act require them to be given effect in a manner which is compatible with Convention rights. This was a view expressed by Neuberger J at first instance in Pye^[4]. He acknowledged that a frequent justification for limitation periods was that people should not be allowed to “sit on their rights indefinitely” but found this principle difficult to accept where a party was “content to let another person trespass on the land for the time being”. He commented (@ p. 710:

“…in a climate of increasing awareness of human rights including the right to enjoy one’s own property, it does seem draconian to the owner and a windfall to the squatter that, just because the owner has taken no steps to evict a squatter for 12 years, the owner should lose…land to the squatter with no compensation whatever.”

The principle has yet to be definitively tested since it was agreed in Pye that the Human Rights Act could not apply retrospectively. However, Lord Scott observed in Harrow LBC v Qazi^[5] that the divesting operation of statutes of limitation may be justifiable in human rights terms as being in the public interest. Further, the regime of the 2002 Act does provide some measure of protection for the owner and requires a trying of the issues.

Bibliography

Law Commission, Land Registration for the Twenty-First Century: A Conveyancing Revolution (2001)

MacKenzie, J-A. & Phillips, M., Textbook on Land Law (10^th Ed., 2004)

Megarry & Wade, The Law of Real Property (6^th Ed., 2000)

Oakley, A., Megarry’s Manual of the Law of Real Property (8^th Ed., 2002)

Wade, Landlord, Tenant & Squatter (1962) 78 LQR 541

Lexis/Nexis

Westlaw

www.hmso.gov.uk

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Footnotes

^[1] (1999) The Times, 28 September 1999

^[2] (1970) 38 P&CR 452 @ p.471

^[3] [2003] 1 AC 419

^[4] [2000] Ch 676

^[5] [2003] 2 WLR 792