Legal Framework of Adverse Possession

Question 1: Ayla’s claim in adverse possession

The issue involved in the scenario is related to adverse possession. Adverse possession has two stages, the first being the establishing the adverse possession and the second being the consequences of the possession. In order for Ayla as a squatter to succeed in adverse possession and acquire the legal title through adverse possession, she needs to fulfil the necessary requirements as laid down in Buckinghamshire cc v Moran, also confirmed in JA Pye (Oxford) Ltd v Graham, which are as follows:

1. She must be in factual possession of the land;

2. She has intention to possess the land; and

3. Both factual possession and intention to possess must have been exercised over the required period for adverse possession.

The facts of the scenario show that Ayla took possession of an empty, vandalised building in 2004, without the consent of the true owner Trainlink. Factual possession is seen from the date when the claimant took possession as against the paper title owner who was dispossessed from that date. There are certain elements of factual possession which must also be present in the case. These include the intention of the claimant to exclude all others including the paper title owner; factual possession for unbroken period of time; possession openly exercised; and in a manner, which is adverse to the paper title owner.

In JA Pye (oxford) v Graham, Lord Browne-Wilkins agreed with the statement by Slade J in Powell v McFarlane, where Slade J described adverse possession as follows: “adverse possession… entitles the person in possession, whether rightfully or wrongfully to maintain an action of trespass against any other person who enters the land without his consent, unless such other person has himself a better right to possession…expected to deal with it and that no-one else has done.”

Factual possession requires that the squatter must take physical control over the land. The locking or blocking of the only means of access as Ayla has done in the present scenario is a good indicator of such physical control. Thus, the court of appeal in Williams v Usherwood, held that the enclosing of land by a fence, together with parking three cars and paving the drive way with decorative paving stones, the fitting of the door and building of fences is conclusive evidence of factual possession. Ayla improved the security of the building, put new lock on the main entrance, added bolts to the other two doors and when possible she replaced some of the small broken windows panes. This proves her intention to exclude others from possession and her her open exercise of the possession. She bought a bed, cooker, and chairs and therefore by doing so she dealt with the property as an occupying owner. She also got energy supply restarted to the building. This proves there is in fact a factual possession by Ayla.

The second issue is whether Ayla has intention to possess. Ayla must demonstrate that she had the intention to treat the land as her own and exclude the world from possession of the same. There are three key facts here. One, she told her friend that she knows Trainlink is the owner, but she cannot see why she could not use it until they need it. Two, she told the energy supplier that she is the property owner and got the energy connection. Three, she used it as permanent address to enable her to work and gain earning that would help her to make other improvements to the property. These facts demonstrate her clear intention of possession of land and she made it clear to the world that she intends to possess the land. The court will look at the conduct of the claimant and decide whether that is indicative of intention. The court needs evidence that the claimant regarded the land as belonging to her.

In Lambeth LBC v Blackburn, it was held that the squatter by changing the locks of the property shows a clear indication that he intends to treat the property as his own, furthermore there is intention to exclude the paper owner from the land. In that case, the claimant was a tenant of the council and he admitted that he had intended only to possess the property for himself until the council evicted him. However he had changed the locks of the property and this was accepted as clear evidence that he intended to treat the property as his own and to exclude the council from the land. In JA Pye Ltd v Graham, it was held that the squatter should not only demonstrate an intention to possess, but should demonstrate an intention to own. In Powell v McFarlane it was held that factual possession is seen where the alleged possessor has been dealing with the land in question as an occupying owner. These conditions are met by Ayla.

Ayla must also demonstrate possession for the period required for adverse possession. Ayla took possession of the building in 2004 and therefore has been in possession for twelve years. The Limitation Act 1980 (LA 1980), section 15 provides that “No action should be brought by any person to recover any land after the expiration of twelve years 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.” In this case twelve years have passed and consequently the paper owner lost the property title on the property. The limitation period provided by LA 1980 has been found to not be a violation of the European Convention of Human Rights. However, the provision under the LA 1980 is claimed only for adverse possession of unregistered land.

In case adverse possession is with relation to registered land, the Land Registration Act 2002 (LRA 2002) becomes applicable. LRA 2002, Schedule 6, paragraph 1(1) provides that a person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application. After the application, the registrar will serve a notice to inform the paper owner or anyone who has interest on that building as stated in Schedule 6 (2) LRA 2002. The registra’sr office gives 65 days from the date on the application notice to anyone interested in the land to respond to the squatter’s application and show interest in the land. In case of no reply within 65 working days, the squatter becomes entitled to be registered as the proprietor of the land.

In case the building in registered land, then Ayla can claim for registering as title owner under the LRA 2002. In Ofulue v Bosset, the court applied Pye v UK saying Mr Ofulue rights had not been violated by adverse possession.

Disputed building is a business development under the name of Trainlink. Ayla did not commit a criminal offence, as trespass on a residential property is a criminal offence under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, section 144.

It is submitted that Ayla will have the requisite 10 years’ factual possession and the intention to possess and that she will be able to apply to be registered as owner of the building, in case the building is registered land. If it is not registered, then she satisfies the requisite conditions of adverse possession through factual possession for twelve years.

Question 2

This Case raises the issue of trust in land the question to be addressed is whether Cathy has a beneficial interest in land under equity. Cathy and Bankole are an unmarried couple who have shared a home that is registered to Bankole. Consequently, the court does not have the power to distribute property between Cathy and Bankole, as it does in case of spouses or civil partners. In the cases of cohabitant relationships upon separation, the court can only declare ownership of the property, and any claim will be under trust law. If they were spouses claim would be under Matrimonial Cause Act 1973, which is not applicable in this case.

The first and most important point to establish is legal ownership as this is registered land. The house is registered in Bankole’s name alone and he inherited it from his parents. At this stage there is the assumption that there is no joint in tenancy or tenancy in common and hence there is nothing to prove express trust of land in Cathy’s favour. Section 53 (1)(b)of Law of Property Act 1925 states that declaration of express trust must be evidence in writing. The intention to create a trust is seen when the legal owner intends to hold the property for another beneficiary. There is no evidence of that in this case. Therefore, Cathy can only claim interest in the property in equity.

In Stack v Dowden Lady Hale stated that the determination of beneficial interest depends on the intention of the parties and for this many factors other than merely financial contributions are relevant. As there is no express trust, Cathy will have to seek remedy on a resulting trust, a constructive trust or property estoppel. Under Law of Property Act 1925, section 53 (2) (c), resulting, implied and constructive trusts are exempted from the formality of writing.

Resulting trust stems from the Latin “resultare” (spring back), and it redirects the beneficial interest of trust property back to the former title owner, due to the attempt to create an express trust which failed to comply with LPA 1925, s 53 (1). For proving resulting trust, Cathy needs to show that she has made a financial contribution to the purchase price of the house. She can only rebut this presumption by proving evidence that she acquired the beneficial interest in the house by financially contributing to the purchase price of the property as established in Stack v Dowden. The information Cathy provided does not show any financial contribution on her part at the time of purchase nor has she contributed to any mortgage payment. Therefore, Cathy cannot claim under resulting trust.

A constructive trust arises by operation of law. Therefore, compliance with LPA 1925, s 53 (1) is not required. Constructive trust will arise in circumstances where Cathy can demonstrate that she was acted upon unconscionably by Bankole, and where she has acted to her detriment after there being a common intention. In Lloyds Bank v Rosset, it was held that common intention, reliance of the expression of common intention and acting to detriment, can lead to constructive trust. Moreover, common intention can be inferred from the conduct of the parties, showing inferred intention and detrimental conduct. Sharing in household outgoings, as Cathy and Bankole did, will be deemed as an inferred intention. However, contributions made must be sufficient to infer common intention as held in Gissing v Gissing, where Lord Diplock stated that the court is not entitled to infer a common intention from the mere fact that claimant provided the chattels for joint use in the new matrimonial home. In Lloyds Bank plc v Rosset, Lord Bridge suggested that in the absence of express agreement only direct contributions, can suffice to justify the interference of constructive trust. Such a narrow approach was not favoured in Stack v Dowden.

Cathy may try to argue that she has an equitable interest on the basis that she built up a conservatory in the house and this shows that she acted on her detriment. The question that will arise as it has been put by Lord Walker in Stack v Dowden, that much depends on whether the work amounts to improvement that enhances the house value. If it does, it may be evidence from which the court could infer that Bankole and Cathy had common intention that she was to have interest in the property. With respect to adding the conservatory, it would seem unlikely that this will amount to constructive trust unless the conservatory adds value to the property.

With respect to Cathy’s contribution to paying the electricity and gas bills, indirect contributions are not contribution to the purchase of the property nor they will amount equitable interest in the property. In Burns v Burns and Pettitt v Pettitt, held that an indirect contribution could only act as detriment were there was an express agreement or where the payment of the household expenses enabled the legal owner to pay the mortgage. This is not the case here as Bankole inherited the property.

Cathy may argue that she spent time and money in building the conservatory. In Eves v Eves, the woman’s arduous work of renovation was held to have been carried out in reliance on a common intention that she should share the beneficial ownership. The conduct of the man in inducing her to agree that the property should be put in his name alone because she was under 21 years of age was clear evidence of an express common intention and her work would not have been carried out without such an agreement. However, in the present case, Cathy’s work may not fall into the same category. On its own, without any express agreement as to beneficial ownership, it might be viewed as solely an anxiety on her part to improve the living conditions. In Lloyds Bank Plc v Rosset the woman’s work in assisting in the renovation of the house was simply attributed to her anxiety to move the family in quickly. It was not sufficient evidence to point to an agreement to share beneficial ownership. Therefore, Cathy’s housekeeping expenses cannot establish beneficial ownership in the absence of an express agreement. In Pettitt v Pettitt, the claimant was held to have no interest in the property, and the improvements were insufficient to create and equitable interest in the property. It seems unlikely that Cathy will be able to establish a constructive trust in the property.

If Cathy succeed to have an equitable interest in the property which is highly and unlikely to be the case according to her situation and the facts provided, under the Land Registration Act 2002 as she is in actual occupation, this may constitute an overriding interest the Schedule 3, para 2 providing she doesn’t fall within the exception in para 2(b) and (c).

The third option is the doctrine of proprietary estoppel, which is a method of acquiring rights over a property. This is an equitable remedy that does not follow legal formalities but it needs three conditions: representation of assurance, reliance and detriment. Cathy might argue that she has contributed to the family home by building the conservatory and she asked Bankole and he never objected to the idea in the first place, therefore, in this situation she may claim remedy under proprietary estoppel. The basic requirement for such is found in Willmot v Barber, where the defendant encouraged the claimant in making the expenditure of money or acts of reliance. Cathy told Bankole that she is building the conservatory and he did not object to it and she relied on his words: “you are the love of my life and I will always take care of you.” Therefore, she was encouraged by the fact he did not object to the can viewed as mere silence leading to claimant to believe that she had rights.

To rely on the doctrine of property estoppel, Cathy must show that it will be unconscionable for her to be denied the remedy from the property on the fact of her building the conservatory. In Ramsden v Dyson, the claimant claimed that he should be entitled to the lease because he had acted on the belief and built on the land. This case shows that simply staying silent when someone else tries to enjoy one’s land will be enough will be enough for the law to accept acquiescence in the claim. The law would expect that landowner would object in circumstances when another builds on your land or treats it as one’s own. If the landowner stands by and does nothing the law holds that is encouragement.

However, proprietary estoppel does not give a lot of scope of remedy to Cathy and she should avoid making a claim in this. Cathy has the strongest case in constructive possession. However, here also she would have to prove that the construction of the conservatory was to the benefit of the house and added to its value.

Bibliography

Bray J, Unlocking Land Law (Fifth edition, Oxon: Routledge 2016)

McFarlane B, Hopkins N, Nield S, Land Law Text, Cases and Materials (Third Edition, Oxford: Oxford University Press 2015)

Thomas M, Blackstone’s Statutes on Property Law 2008-2009 (Oxford: Oxford University Press 2010)

Warner-Reed E, Optimize land law (Oxon: Taylor and Francis 2014)

AJ Pye v UK [2006] 43 ERHH 43, [2008] 46 ERHH 45

Buckinghamshire Country Council v Morgan, [1990] Ch. 623, [1989]

JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419 HL

Jones v Kernott [2011] UKSC 53 (SC) Lambeth LBC v Blackburn [2001] 33 HLR 74

Lloyds Bank Plc v Rosset [1991] 1 AC 107

Williams v Usherwood (1983) 45 P & CR 235 HC