land law Resources

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Land Law and Possession

Land Law Cases referred to in this section:

  • Buckinghamshire County Council v Moran (1988) 86 LGR 472
  • J A Pye (Oxford) Ltd v Graham [2002] UKHL 30
  • Powell v McFarlane (1979) 38 P & CR 452

Adverse Possession in Unregistered Land:

  • Where the title to the land in question is not registered, an application may be made for adverse possession where:
  • the squatter has factual possession of the land;
  • the squatter has the necessary intention to possess the land;
  • the squatter's possession is without the owner's consent; and
  • all of the above have been true of the squatter and any predecessors through whom the squatter claims for at least 12 years prior to the date of the application

Factual Possession:

In Powell v McFarlane (1979) 38 P & CR 452, Slade J said:
"Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. …Everything must depend on the particular circumstances, but broadly, I think 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".

Where the land was previously open ground, fencing is strong evidence of factual possession, but it is neither indispensable nor conclusive.

Intention to Possess:

There must not merely be an " intention to own or even an intention to acquire ownership but an intention to possess" (Buckinghamshire County Council v Moran (1988) 86 LGR 472, per Hoffman J, approved by House of Lords in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30). This means "the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as reasonably practicable and so far as the processes of the law will allow" (Powell v McFarlane (1979) 38 P & CR 452, 471472, per Slade J, approved by House of Lords in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30). Where the squatter has been able to establish factual possession, the intention to possess will frequently be deduced from the acts making up that factual possession. But this deduction will not always be made, as Slade J explained in Powell v McFarlane:

"In my judgement it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner."

In Buckinghamshire County Council v Moran, Slade LJ explained:

"Possession is never 'adverse' within the meaning of the 1980 Act if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in 'adverse possession' as against the owner of the paper title."

Adverse Possession in Registered Land:

After 10 years' adverse possession, the squatter will be entitled to apply to be registered as proprietor in place of the registered proprietor of the land. On such an application being made the registered proprietor (and certain other persons interested in the land) will be notified and given the opportunity to oppose the application. If the application is not opposed, the squatter will be registered as proprietor in place of the registered proprietor of the land. If the application is opposed, it will be rejected unless either:

it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the squatter and the squatter ought in the circumstances to be registered as proprietor; or
the squatter is for some other reason entitled to be registered as proprietor; or
the squatter has been in adverse possession of land adjacent to his own under the mistaken but reasonable belief that he is the owner of it, the exact line of the boundary with this adjacent land has not been determined and the estate to which the application relates was registered more than a year prior to the date of the application.

In the event that the application is rejected but the squatter remains in adverse possession for a further two years, he will then be able, subject to certain exceptions, to re-apply to be registered as proprietor and this time will be so registered whether or not anyone opposes the application.