Adverse Possession Problem Question

Adverse monomania Problem Question orbit law (Adverse Possession) Problem Question (3000 words)In this scenario, mollie is concerned to essay the status of the plot of consume that lies beyond the garden of the house that she has inherited from her cousin, Ms Twigg. The plot is next to the garden of the property, and is a natural extension of the gardens length. Ms Twigg, and subsequently mollie, gull taken measures to demarcate the plot of refine, clear it, and assert a measure of control over it. Molly is not keen to establish deed over the cut, in order to prevent the local anaesthetic council from continueing with their object to convert it into a highway lay-by. It is possible, as imparting be seen, that the doctrine of uncomely bullheadedness operates in this situation so that by virtue of the fact that Ms Twigg and Molly have asserted well-nigh control over the plot, and on that point has not, until 1997, been any expression by the local council of its cont rol over the plot, Molly provide properly claim featureorship of the plot.Section 15 of the Limitation phone number 1980 is entitled prison term limit for proceedings to recover land. The dent is concerned with the time limits later which a healthy owner of a piece of land cannot bring an action to recover the land in question where thirdly party rights have been accrued. It states No action sh solely be brought by any person to recover any land after the expiration of xii grades from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person ( division 15(1)). thither atomic number 18, of course, certain provisos in the latter part of the section, the relevant iodines of which will be discussed, but if the section does indeed apply, it would mean that after the head of 12 years from the date Ms Twigg obtained a right in the land, the local sureness would lose their title to it. This is provid ed for by section 17 of the Act.This, then, is one of the statutory bases for the doctrine of adverse self-control. What are the particles of this doctrine? It is clearly a manifestation of the concept of relativity of title that is so central to side land law that is that all title to land is only relative to other claims on that land, and neer absolute in the true sense. It is a means of granting ownership to persons who do not have legal title to the land in question, as is the case here. Indeed, it is usually very clear in cases of adverse self-discipline that not only does the claimant not have title, but an identified other party does have legal title. This is why the doctrine is so controversial it deprives one party of a legal right in favour of a atomic number 42 party with no legal title. Adverse possession operates where, at heart the period of time mentioned above in the Limitation Act 1980, the legal owner (in this case the local council) fails to take action to e vict a so-called nester (in this case Ms Twigg and subsequently Molly) from the land in question. In the case of Newington v Windeyer (1985), the doctrine was applied in practical terms. It was verbalize that possession gives title that is good against eeryone except a person who has better, because older, title. This means that even a wrongful intruder can acquire title in anothers land.The doctrine of adverse possession was well-nigh recently considered in the seminal case of JA Pye (Oxford) Ltd v whole wheat flour (2003), in which the importance of possessory control was highlighted. There are, however, two elements to this concept. The first is genuine possession (or factum possessionis in the parlance of the judgments). Secondly, and equally importantly, there is a intellectual component, characterised by an intention to possess on the part of the squatter (animus possidendi). Although considered in the case of Pye, the duality of the possession factor was mentioned by G ibson LJ in Prudential Assurance Co Ltd v Waterloo Real state Inc (1999). The squatter must have subjective intention to possess the land but he must also show by his outward conduct that that was his intention. This idea was confirmed in Pye by Lord Hope, who acknowledges that such an intention was usually evidenced by acts which have taken place. How, then, does this apply to the lay out scenario?The first element, factual possession, can be seen to be met by the fact that the boundary fence has been knocked carry out by Ms Twigg, thereby removing a barrier to the plot in question, and by her removal of the debris in the newborn area. In Powell v MacFarlane (1977), it was held that possession throughout the period of alleges adverse possession must be sole(a) to the claimant, although a single possession by or on behalf of several persons jointly is adequate. This, then, applies to Ms Twiggs situation, and her subsequent conveyance of the property to Molly. Furthermore, tha t possession must, in the words of Lord Templeman in Browne v Perry (1991), be peace competent and open. This requirement has also been met by Ms Twigg and Molly, as a visible inspection of the plot by the local bureau would reveal that the occupant of the house was now in factual possession of the plot of land. It is also important to note that if there was any element of liberty from the local authority for Ms Twigg to use the land, this would negate any claim of adverse possession, as the hale essence of the doctrine is that the possession must be adverse to the paper owner. stock-still some implied license would defeat the claim of possession. In the present case, however, it seems un probable that such a licence exists.The amount or factum of physical possession required to meet the requirement of adverse possession was considered in Buckinghamshire CC v Moran (1990), in which Slade LJ said that ultimately, it depended on the claimant asserting complete and exclusive physi cal control over the land in question. He had deliberated on this point in the earlier case of Powell v MacFarlane (1997) when he stated that it must be shown 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. Will Ms Twiggs and Mollys actions be sufficient to establish this necessary level of factual possession? As we know, the plot is leap on three sides by hedges and trees, and the fence boundary shared with the house has been knocked down. In Seddon v smith (1877), it was held that enclosure is the strongest possible evidence of adverse possession. While Ms Twigg did not actually construct an enclosure, she did subvert an artificial boundary so that the garden and the plot are now bounded in their entirety. This will probably be a sufficient degree of factual possession. The sufficiency of the possessory control depends on the context, and here, it seems in all probability the clearance will be sufficient. In Hounslow London Borough Council v Minchinton (1997), an unsubstantial use of the land in question was considered sufficient because it was the only sensible use of the land. A similar situation applies here.The second element of possessory control, then, is the requisite intention to possess. Ms Twigg and Molly must have shown a continuing intention to possess throughout the period of adverse possession, following Railtrack plc v Hutchinson (1998). In Powell v MacFarlane (1977), this was held to mean the intention, in ones own name and on ones own behalf, to exclude the world at large, including the owner with the paper title so uttermost as is reasonably practical and so far as the processes of the law will allow. This intention must be both genuine, and also must be made clear to the world. This includes the paper owner (that is, the local authority as the legal title holder) if that owner was present on the land in question. Aga in, as was mentioned above, it seems likely that this requisite intention will be satisfied by the removal of the boundary fence, and the clearance of the debris on the plot by Ms Twigg and subsequently by Molly. The relevant intention can, and usually will, be inferred from conduct, so to some extent it can be met by the same measures as demonstrating factual possession. It seems, then, that between them, Ms Twigg and Molly have met all of the pre-requisites of making a successful claim of adverse possession of the plot of land.The potential for controversy caused by this doctrine was illustrated in the case of Ellis v Lambeth London Borough Council (2000), in which a squatter successfully claimed a council house worth 200,000. Indeed, in Buckinghamshire CC v Moran (1990), Nourse LJ described adverse possession as barefacedly possession as of wrong. How can this doctrine be squared with the increasing awareness of and focalisation on human rights, and particularly on those enshri ned in the European Convention on Human Rights, which was collective into English law by the Human Rights Act 1998? This issue was considered in the case of JA Pye (Oxford) Ltd v Graham (2001). It was noted that the doctrine often results in the deprivation of possessions, and hence might be thought to be in breach of human rights contained in the Convention. It was considered, however, that the rule operates, ultimately, in the public interest, and is therefore justified down the stairs the Convention.How, then, does the doctrine apply in the present circumstances? In the first scenario, the dates are fundamental because they pre-date the Land Registration Act 2002, which had a significant impact on the area of adverse possession (which will be considered to a lower place the second scenario). The significant dates here, then, are 1980, when Ms Twigg moved into the property, and at which time there was no question of the local authority holding the title to the plot of land at the canful of Ms Twiggs garden and 1984, when Ms Twigg removed the broken down fence, and commenced clearing the ground of the brake and rubbish that had built up there. In the strict operation of the Limitation Act 1980, then, chthonian section 15(1), this is the date on which the right to the land accrued to her. That is to say, the clock started running at this time. Also under section 15(1) of the Act, the successor in title to Ms Twigg that is, Molly will also be able to claim the title. A significant factor is whether the property was registered by Ms Twigg when she purchased it. Since there was no required registration in 1980, it will be assumed that the property was not registered.As was mentioned above, under section 15(1) of the Limitation Act 1980, the legal owner of the plot of land (the local council) has a period of twelve years from the date on which Ms Twigg accrued a right to the property, even as a squatter. The date in question, then, is 1984, when Ms Twigg asserted control over the land by removing the broken down fence, and clearing the area. Furthermore, the local authority did not take any action even insofar as repairing the boundary fence in order to evict Ms Twigg. Again, the fact that the property passes from Ms Twigg to Molly in 1985 does not affect the claim of adverse possession. This is because under the Act, immediately consecutive periods of adverse possession (as Ms Twiggs and Mollys were) can be aggregated to contribute to the twelve year time limit. This was applied in Mount Carmel Investments Ltd v Thurlow Ltd (1988). After this period of 12 years, then, the local authoritys title will be extinguished in favour of Molly. Molly, therefore, emerges as the legal title holder.This, then, is the situation in the first scenario, where the dates in question pre-exist the Land Registration Act 2002. In the second scenario, however, the outcome may be different as the dates have been moved forward. The two factors that are li kely to affect the claim of adverse possession in this second scenario are, firstly, that Ms Twigg did not taken action to exert her control over the land in question until 2000 and secondly, that the LRA 2002 will apply in the present circumstances. To reiterate, the significance of Ms Twigg taking down the broken fence completely and commencing to clear the plot of land is that it is at this point that she becomes a squatter, with some measure of possession of the plot of land. Again, it is from this point in time that the clock starts to run in respect of adverse possession. As several commentators have noted, it is by chance strange that even after the passage of the LRA 2002, adverse possession should continue to play a significant role, given that the registration of title is supposed to be definitive in assessing ownership. This was also noted by Lord Bingham in the seminal case of JA Pye (Oxford) v Graham (2003). This case involved the acquisition of 25 hectares of developm ent land, reportedly worth over 10 million, which prompted the Guardian to report on Britains biggest ever land grab (9 July 2002).The effect of the LRA 2002 can be seen as a response to the criticisms that have progressively been targeted at adverse possession, particularly in the case of squatters claiming rights in the land of registered owners. Smith describes the impact of the LRA 2002 as undoubtedly one of the most fundamental intensifys to property law in the pat century (Smith, R. (2002) The intention of Registration in Modern Land Law, in Tee, L. (Ed) Land Law Issues, Debates, Policy (London Willan), p55). matchless of the key provisions of the Act, then, is that unlike under the pre-2002 doctrine, mere passage of time does not bar a registered title holder from regaining possession. This means that time is no longer in Ms Twiggs and Mollys favour under the LRA 2002, section 96. Furthermore, the onus is now very much on the squatter rather than the legal title holder t o assert their control over the property in question. For the first time, under the LRA 2002, a positive application is required by either Ms Twigg or Molly. This application must be made to HM Land Registry to be registered as the proprietor of the plot of land in question. Under section 97 of the Act, this application can only be made in the event that the squatter has been in adverse possession of the property for a period of ten years immediately preceding the date of the application. In this instance, then, that time frame has not been reached.Even if Molly had been able to make an application to HM Land Registry to be registered as the proprietor of the plot, the local authority would have been able to defeat this application simply by registering objection to it. Again, this shows the change in focus ushered in by the LRA 2002 in favour of the legal owner at the disbursal of the squatter, who was in a better position with regard to the land on which they were squatting prior to 2002. non only can the local authority object to the application for registration from Molly, however so in like manner can any legal charge holder or, if it were relevant, the proprietor of a superior leasehold estate. Under instrument 6 of the Act, any objection by any of these parties within a period of 65 communication channel days of the application being made will defeat the application. It should be noted that had Ms Twiggs and Mollys time ran successfully prior to the date at which the local authority wished to proceed with its lay-by plan in 2003, Molly would retain some protection for her rights over the land under the LRA 2002.BIBLIOGRAPHYStatutesHuman Rights Act 1998Land Registration Act 2002Law of Property Act 1925Limitation Act 1980CasesBrowne v Perry 1991 1 WLR 1297Buckinghamshire CC v Moran 1990 Ch 623Ellis v Lambeth London Borough Council (1999) 32 HLR 596Hounslow London Borough Council v Minchinton (1997) 74 P CR 221JA Pye (Oxford) Ltd v Graham 2000 Ch 676 Mount Carmel Investments Ltd v Thurlow Ltd 1988 1 WLR 1078Newington v Windeyer (1985) 3 NSWLR 555Powell v MacFarlane (1977) 38 P CR 452Prudential Assurance Co Ltd v Waterloo Real Estate Inc 1999 2 EGLR 85Railtrack plc v Hutchinson (1998) (unreported)Seddon v Smith (1877) 36 LT 168Secondary sourcesDavies, C.J. (2000) Informal Acquisition and sledding of Rights in Land What Justifies the Doctrines?, 20 Legal Studies 198Gray, K. and Gray, S.F. (2003) Land Law, 3rd magnetic variation (London LexisNexis)Gray, K. and Gray, S.F. (2005) Elements of Land Law, 4th Edition (Oxford OUP)Rhys, O. (2002) Adverse Possession, Human Rights and Judicial Heresy, Conv 470Smith, R. (2002) The Role of Registration in Modern Land Law, in Tee, L. (Ed) Land Law Issues, Debates, Policy (London Willan)Thompson, M.P. (2002) Adverse Possession The Abolition of Heresies, Conv 480