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how adverse possession is interpreted in common law

This question raises a plethora of issues in relation to the doctrine of adverse possession and how it has been interpreted through the common law and through statute. The problem question also raises the issue of easements and boundaries; however, these issues are secondary to the main question. This problem question will be addressed through the use of a series of sequential questions, set out below.

Does Joe Fury now own the narrow strip of land that he built a fence around?

It is true that: ‘Property concerns legal issues among people regarding control and disposition of valued resources…[1]’, and this statement can be particularly relevant to the idea of adverse possession. The Land Registration Act 2002 recognised the significance of property as a ‘valued resource’ in an arguably very progressive way, and in this sense this legislation has gone a long way towards protecting the property rights of people in Bob’s position.

The Land Registration Act 2002 had a significant impact upon the doctrine of adverse possession, and it has increased the scope of protection available to owners of registered land, by increasing the burden a person wishing to claim possessory title[2] to property must discharge where the doctrine of adverse possession applies. As Abbey and Richards (2002) have commented: ‘The 2002 Act will challenge and alter…..[3]’.

Whereas the principle set in Lodge v Wakefield[4] created quite an easy test for adverse possession, the Land Registration Act 2002 was intended to tighten up the rules relating to this doctrine, placing more positive obligations upon the person making a claim under the principle of adverse possession[5]. However, the presence of a dichotomy as to how easy this principle should be to invoke does not negate the usefulness of the principle of adverse possession, which is still recognised as having an important function within society. In their revision of the principle, therefore the Law Commission ensured that the main tenets of adverse possession were preserved.

The basic answer to the question of the ownership of the narrow strip of land therefore lies in whether or not Joe Fury complied with the new more proscriptive requirements of the Land Registration Act 2002 in asserting his ownership through the principle of adverse possession. The limitation period for the operation of adverse possession in the transfer of ownership to a person claiming ownership was unchanged by the Law Commission and remains at twelve years[6]. A person claiming ownership to land under the new Land Registration Act provisions must make an application to be recognised as the registered owner of the vacant land. This application must be presented after a minimum of ten years.

In the problem, the limitation period of twelve years has expired, but it is unclear whether of not Joe Fury has served the Land Registry with a notice that he wishes to be recognised as the owner of the property as he is required to by the operation of the new provisions of the Land Registration Act 2002. If Joe Fury has indeed served this notice, after ten years, Bob would have been notified by the land Registry.

Bob would then have had two years to respond to the notice as he is the registered owner of the property. Therefore if such a notice has been served on Bob and if he did not object within the prescribed two year period then he has no right to question Joe Fury’s ownership of the land and the legitimate title passes to Joe Fury, who has otherwise complied with the requirements of gaining ownership through adverse possession by putting a fence around the land and cultivating it as his own (Pye v Graham (2002) 44302/02).

In this context it is important to note that the letter which Fleecem is unlikely to have had the effect of effecting an objection within the construction of the Land Registration Act 2002 since the true owner of the property must, within this two year period institute legal proceedings against the occupier or effect physical[7] possession.

One issue that is worth mentioning here therefore is the potential incompatibility which adverse possession may be considered to have with the Human Rights Act. This was held to be the case in Beaulane Properties Limited v Palmer[8] and Bob may be able to use this principle to assist him in arguing that he is the true owner, for example in front of an adjudicator at the Land Registry, if it transpires that Fury has a good claim to possessory title.

Therefore the answer to this part of the question is that Bob owns the land, unless Joe Fury has applied to be recognised as the owner by the Land Registry. If Joe Fury has made an application to be recognised as owner of the property and two years have not yet passed, Bob may still raise an objection to this[9]. In cases where an objection has been made the Land Registry will appoint an adjudicator in the hope that the issue can be decided without the input of the courts.

Who should mend the Boundary Wall?

As Robilliard et al (2002) have commented: ‘In most litigation questions of fact may exert greater influence on the ultimate outcome or decision of a boundary problem than will questions of law…[10]’. Therefore the question of fact which is relevant here is: ‘who owns the land where the boundary exists’? If the boundary exists on land which is owned by Bob, he has a duty to maintain it. If Bob owns the land that the boundary is on and does not maintain it, Fury may maintain it himself, but he must be careful not to improve the value of the boundary as he must only maintain and not develop or improve it since it is not his property[11]. If the parties both own the boundary, then some accommodation should be negotiated between the two given their joint responsibility.

It is important to note that the Land Registration Act 2002 has introduced new measures in relation to the registration of boundaries, and Fury may avail of these rights if he wishes to have his position in relation to this boundary clarified.

Does Joe Fury have any propriety or other interests in the steps that he repaired?

Ostensibly the two issues that are raised in this section relate to the issues of easements and adverse possession and these will be dealt with below.

Because one of the requirements for being able to claim adverse possession is that one must be able to establish occupation for a continuous period of twelve years (Pye v Graham 44302/02 and Buckinghamshire v Morgan (1989) 2 ALL ER 225 CA), it is unlikely that Joe Fury can have a claim to own the steps. It is far more likely that he may be able to establish what is known in law as an easement.

An easement is a right that gives rightful users of land certain rights which include ingress and egress, access and other rights prescribed through law and implied at common law. Examples of easements can include the right to lay water pipes through another’s land or the right to pass through another’s land[12]. The land over which an easement is exercised is referred to as the ‘dominant tenement’ and the person exercising the right is referred to as the ‘servient tenement’. There are three ways for an individual to acquire rights of this nature.

An easement may be conveyed by way of an express grant, which would involve the easement being evidenced in explicit terms on, for example a deed of transfer or another deed. An easement may also be created by way of ‘necessity’. This situation describes where the exercise of a right to have an easement is the only way a person may access the public highway or indeed it may be the only way the land itself may be accessed.

An easement may also be created through ‘prescription’. This means that where a person has been openly and repeatedly doing something without the permission of the landowner for over twenty years, that person has a right to continue doing so. Where there is uncertainty as to whether an easement should exist, the following article outlines the usual approach that is taken in law, in reliance upon Section 62 of the Law of Property Act 1925: ‘…..the law tends to favour the existence of the easement…[13]’.

Therefore, there is not enough detail in the problem for one to say for certain whether Joe Fury is entitled to claim that he has an easement over the steps. One would need to consult his title deeds to see if there is an express easement and if not one would need to establish whether Fury has been using this set of steps for more than twenty years, thus creating an entitlement to an easement impliedly or through prescription.

If Fury does have an easement over the steps, he is only entitled to maintain them, not improve the value of them because they are not his property. Accordingly, he has no right to be angry that he lost the value of his investment in improving the steps, as he had no right to develop land that did not belong to him[14]. If he did have the right of an easement over the steps, Fury would perhaps be able to negotiate an alternate route to the shops with Bob, as it is extremely difficult to merely extinguish another’s entitlement to the right of an easement over property.

Does Bob have a remedy against Fleecem in any of these circumstances?

In any of these circumstances, if Bob suffered a loss or a detriment because of any action or inaction on the part of Fleecem[15] then Bob would be entitled to sue Fleecem for a remedy arising through breach of contract and/or negligence, since they were in charge of the management of the property.

Bibliography

Books

Abbey, R. and Richards, M. (2002) Blackstone’s Guide to the Land Registration Act. Oxford University Press. Oxford.

Robillard et al. (2002) Evidence and Procedures for Boundary Location. John Wiley and Sons New York.

Singer, J. (2005) Introduction to Property. Aspen Publishers. New York.

Article

Anonymous (2005) What is an Easement? Available at: << http://www.boundary-problems.co.uk/maineasements.htm >>.

1


Footnotes

[1] Singer, J. (2005) Introduction to Property. Aspen Publishers. New York.

[2] As defined in the Price and Others v Leeds City Council (2005) EWCA Civ 289.

[3] Abbey, R. and Richards, M. (2002) Blackstone’s Guide to the Land Registration Act. Oxford University Press. Oxford.

[4] (1995) 2 EGLR 124 CA.

[5] Anonymous (2005) What is an Easement? Available at: << http://www.boundary-problems.co.uk/maineasements.htm >>.

[6] Pye v Graham (2002) 44302/02

[7] ‘Physical’ is defined by Powell v Mc Farlane (1977) 38 P AND CR 452.

[8] Chd. The Times, 13th of April 2005.

[9] There is one caveat here in relation to the 2002 Land Registration Act, which applies where the person claiming adverse possession is the neighbour of the person whom he wishes to acquire title from. If, for a period of ten years, the ‘squatter’ and their predecessors in title believed that they were the true owners of the property, an objection raised by the ‘true owner’ of the property to an application to acquire a possessory title in the property may be disallowed. However, more information would be needed about Fury’s predecessors in title to establish whether this caveat would apply to his situation.

[10] Robillard et al. (2002) Evidence and Procedures for Boundary Location. John Wiley and Sons New York.

[11]Anonymous (2005) What is an Easement? Available at: << http://www.boundary-problems.co.uk/maineasements.htm >>.

[12] Anonymous (2005) What is an Easement? Available at: << http://www.boundary-problems.co.uk/maineasements.htm >>.

[13] Anonymous (2005) What is an Easement? Available at: << http://www.boundary-problems.co.uk/maineasements.htm >>.

[14] Anonymous (2005) What is an Easement? Available at: << http://www.boundary-problems.co.uk/maineasements.htm >>.

[15] For example, if Fury does acquire title to the garden that he was cultivating, Fleecem may be liable for the fact that they simply wrote to Fury to raise an objection. If they had instituted legal proceedings, Fury may have been removed before any dispute arose.


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