| Adverse Possession |
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Acquiring land by adverse possession is the process by which a person who is not the legal owner of the land can become the legal owner by possessing the land for a specified period of time. The land registry website says the following about adverse possession: “ Adverse possession – the essentials
Factual possession In Powell v McFarlane, 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. The intention to possess What is required is “not an intention to own or even an intention to acquire ownership but an intention to possess”. 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”. 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 McFarlane9: “In my judgment 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.” Use of land for access purposes is an example of an equivocal act. Such use over time might give rise to an easement by prescription but is not, by itself, sufficient to establish an intention to possess the land. Possession without the owner’s consent 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.” ”
You can find these guides here and here.The LRA 2002 disapplies the previous law on adverse possession to registered land, so that there are two regimes affecting the acquisition of land by adverse possession:
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