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ADVERSE POSESSION
It is a method of gaining legal title to real property by the actual, open, hostile and
continuous possession of it to the exclusion of its true owner for the period prescribed
by law. In order to claim title by adverse possession, the squatter must show that:
SQUATTERS
POSSESSION
BE
CONSIDERED
ADVERSE
WHEN
THE
OWNER
IS
DELIBERATELY NOT USING THE LAND BECAUSE HE IS KEEPING IT FOR SOME SPECIAL USE IN THE
FUTURE?
If the owner could show that he put aside the land in question for a particular future
use, then that land is incapable of being adversely possessed instead it would be held
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that the squatter is holding the land under an implied license from the owner (LEIGH V
JACK).
However, this concept was greatly criticised. It went against the general principle of
adverse possession for a licence encourages the presumption that squatters occupation
is consensual and consistent with the owners present or future enjoyment of the land.
This decision was altered in (PYE V GRAHAM). Lord Browne-Wilkinson approved of the
principles stated by Slade LJ in (POWELL). He emphasized the need for both physical
possession and an intention to possess and held that any intention manifested by the
paper owner is irrelevant.
However, this decision was again thrown into a conflict in (BEAULANE PROPERTIES V PALMER).
It was held that the rule in (PYE) does not apply to unregistered land. A clarification was
received regarding this rule in (PYE V UK) where ECtHR held that the decision in (PYE V
GRAHAM) although in interference with the convention right was a proportionate and a
permissible interference. This rule was solidified in domestic law in (OFFULUE V BOSSENT).
Unregistered Land
The limitation period for unregistered land is 12 years from the moment of adverse
possession as per S.15 LIMITATION ACT 1980.
When a squatter has completed the limitation period, under S.15 LA 1980, S.17 of the
Act will come into force. This has the effect of:
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Generally the clock of limitation will end at the end of the 12 year period. However,
there are actions which may stop the clock and so prevent the adverse possessor from
completing the required period which will ensure his claim to fail.
where the paper owner brings a successful action against the squatter in court
for possession before the expiry of the period legal proceedings.
any kind of interruption would stop the time from running s.29 and 30 of LA
1980 hold that an adverse possessor will not will not succeed if they have in
writing acknowledged the paper owners title before the expiry of the limitation
period (OFULUE V BOSSERT).
incapacity of the paper owner stops the clock from accumulating time:
where the paper owner is not of age.
where the owner suffers from a recognized medical illness as per MHA
1983; AMENDED 2005.
where one squatter sells his clocked time to another, the latter
adverse possessor will only have to clock in the remaining time from the
former squatters limitation period.
WILL:
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This means that a person who has completed 12 years adverse possession and brought
a claim before 13th October 2003 is entitled to be registered as proprietor of the land.
The transitional arrangement in LRA 2002 provide that where the completion of the
limitation period has given rise to a trust before the Act came into force, the squatter is
entitled to be registered as proprietor of the estate under SCH.12, PARA. 18(1) LRA 2002
and s.15 LA 1980 to this effect is eliminated. Provided that the squatter stays in actual
occupation of the land, his right will be overriding under SCH.3, PARA. 2 LRA 2002 and so
will bind anyone who buys the land from the dispossessed owner.
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dispossess the applicant and the applicant ought to be registered as proprietor
(JENNINGS V RICE).
However, this concept has nothing to do with adverse possession because this
would mean that the paper owner had consented to the transfer of the title to
which the squatter has to his detriment relied upon and the paper owner has
backed down from his promise. This concept in adverse possession is held to be
more of a perfector of title.
SOME OTHER RIGHT TO LAND: PARA. 5(3) provides for registration where the
applicant does in fact have some other right to the land, is entitled to be
registered as the proprietor of the estate such as through a bare trust or through
succession.
This idea again has nothing to do with the principles governing adverse
possession for the applicant need not rely on adverse possession to establish title
(CROSDIL V HODDER).
THE BOUNDARY EXCEPTION: PARA. 5(4) provides for registration of the applicant
where:
If the applicant for registration has been opposed and consequently rejected, the
registered proprietor now has the opportunity to recover from the squatter through
court proceeding or physical presence.
However, if this is not done and the applicant remains in possession for a further 2
years from the date of the application, he may make a further application under PARA. 6
for registration and as per PARA. 7 he will be entitled to be registered as the new
proprietor (BAXTER V MAMNION).
WHEN DOES TIME STOP?
As there is no concept under the LRA 2002 of time barring or limitation, hence the only
way the limitation period for adverse possession ends with either the completion of the
10 or 12 year prescribed time or by an interruption of possession on land. This is
because as soon as the squatter applies for registration, a notice is sent out to the
registered owner who despite any incapacity is free to reject the squatters claim.