May 2014, a squatter, Keith Best has successful claimed an adverse possession(AP) to

the right of the house worth $400000 in London. This house originally belonged to a widow,
who passed away in 1988. Mr Best claimed that he was informed that the house owner had
died and her son had not seen for some time. The Chief Land Registrar turned him down but
Mr Justice Ouseley overturned the ruling, despite accepting Best had been committing
criminal trespass. What is adverse possession? How is it possible that someone can end up
rightfully possessing land by being a trespasser? AP, sometimes referred as "squatters' rights,"
which means acquiring land belonging to another person by occupying, or possessing that
land for extended period of time. Thus, with AP there is no purchase of the land, nor is there
any other form of acquisition made with the permission of landowner.
So, if someone want to acquire other property or even to extend their own property,
can they simply move into someone elses land and subsequently stake their claim? The
answer is yes. But in reality, of course, apart from the practical difficulties, there are a
number of legal hoops the squatter needs to jump through in order to obtain property in this
way. Dispossession or discontinuance, a pre-requisite to the next step and it concerns when
the actual period of AP begin. Shortly, when the limitation clock starts to run. Prior to the
Land Registration Act 2002 this was 12 years as per the Limitation Act and after LRA 2002
is 10 years.
The clock runs from dispossession means when the squatter start entering the property
ad driving the owner out. A good illustration of this is Powell v McFarlane, where the
claimant fenced off the land of landowner who visited the land infrequently. Nevertheless,
court held that this was sufficient to indicate that the land had not been abandoned and
therefore the squatter had dispossessed them. Discontinuance of possession of the property,
generally where the owner has abandoned his property and the squatters has then intercepted
the property. This is explained by Lord Justice Farwell in Hounslow LBC v Minchinton that,
the councils predecessor in tittle erected the fence and thereby denied itself access to the land
lying beyond it was capable of constituting a discontinuance of possession. It is worth
nothing here that the period of abandoned must be substantial as opposed to a periodic
absence. Once either of these has occurred the clock will start running.
Factual possession, physical and objective element of AP. The doing, actual
possession of the land, much like the actus reus of a crime. Yet, the possession must be open
and peaceful and true owner must be capable of challenging the possessor if he so wished.
According to Mr Justice Slade in Powell, in order to sufficiently possess the property for AP
to run the squatter needs to assert an appropriate degree of physical control. In Seddon v
Smith, Chief Justice Cockburn held that the fencing-off of the land was the strongest possible
evidence of AP. However, the acts carried will need to be viewed in conjunction with the
nature of the land and the way in which that land is usually enjoyed and used. In William
Sindall plc v Cambridge Country Council, claimant claimed AP of a land which occupied
the space through a sewer pipe ran. The sewer had been installed by claimant without the
permission some years before. Yet, claimants claim failed as amounting to user only not
possession.
The law also required squatter intended to occupy, possess, the property. Anything
short of intention to possess the property will not be sufficient to found a claim in AP. In R v
Secretary of State for the Environment, the squatters claim failed as she had previously

written to the council offering to pay rent the land she was living. She could not be said to
have intention to adversely possess the property. Interestingly, it is irrelevant whether the
squatters intention to possess came in the mistaken belief that they already owned the
property. In Hughes v Cork, claimant mistakenly believed that the plot of land formed a part
of land bought by him, on which he intended to build a house. It was held that his removal of
fencing by landowner and regular maintenance of the site during the period of his ownership
of the adjoining land was sufficient to evidence his intention to possess it. Thus, the intention
of squatter must be simply to possess and not adversely possess.
Besides, possession must be adverse to the true owner. There is no statutory definition
of adverse, but, as MacKenzie and Phillips, it can be taken to mean possession which is
inconsistent with the rights of the owner. For possession to be adverse, the must be no
subsisting permission, consents, leases or licence from the owner and it is important to note
that, possession never adverse if enjoyable under a lawful title. This can be seen in Trustee of
Grantham Christian Fellowship v Scouts Association. Fellowship had granted the scout a
licence to occupy some land, provided they kept it tidy. The court rejected their claim of AP
as the licence had never been revoked or expired. If there is a landowner grants a lease of
land which then expire and the tenant remains on the land without the landowner consent,
there may be a case for AP. In Long v Tower Hamlets London BC, it was held that there was
never a dispute that as a former tenant of the property remaining in the property could not
become a squatter.
Under the law as it was prior to the coming into effect of the LRA2002, the provisions
of the LA1980 applied in the same manner to registered land(before 13 October 2003) as
unregistered land. It was held that after 12 years of AP of property, landowner will be statutebarred from taking any action to recover the land (s15) and their title to the property will be
extinguished(s17). Except that the estate of the registered proprietor, instead of being
extinguished at the end of the appropriate limitation period, was deemed by section 75(1) of
the LRA1925 to be held on trust for the squatter. S.75 LRA1925 declares that a registered
proprietor of an estate holds that estate on trust for a successful squatter pending registration
of the squatter as the new proprietor. In Central LondonCommercial Estates v. Kato
Kagaku, Sedley J held that a registered proprietors leasehold was held on trust for the
successful squatter with the benefits and burdens of the lease intact.
This form of trust was abolished under the LRA2002, there is no equivalent to section
75(1) of the LRA1925 in the LRA2002, but Sch12, para18(1) of the LRA2002 provides that a
squatter who is already a beneficiary under such a trust has a right to be registered as
proprietor. Furthermore, under Sch6 para1 LRA2002, after a period of no less than 10 years,
AP, a squatter can apply to be register as proprietor of the land. Their application will be
rejected unless one of the three conditions set out at para5 sch6 are met. If none of the
element apply, squatter application will be rejected. From this point onwards, under schedule
6 para 6 landowner has two years in which to take enforcement action against the squatter
and evict them from the land. If at the end of this two years, the landowner neither
commenced any proceedings against the squatter, nor secured their eviction from the site, the
squatter may make renewed application to be registered as propriety of the land and the land
registry will be required to accept their application for registration and the landowners title
to the land will be extinguished. The important point make here is whilst theoretically a
squatter could still make a claim for AP of property within a 12 years period, they accrue no

legal rights in the land until the time the notice is served on the landowner. This could be go a
long way towards redressing the balance back in favour of landowner.
However, LRA2002 does not change the fact that the law of AP effectively diminishes
the absolute nature of a landowners right over their land. So why allowed it? Although the
problem if unregistered lands title deeds are stolen or lost can be solve by AP is a good
practical reason of maintaining AP. Yet, with over 75% of estates now registered is an
argument that is ever diminishing. Another argument for maintaining AP is that it is in public
interest to do so. Land in UK is naturally limited and if a landowner is not making use of their
land, why should it not be given over to someone who has a better use for it? In this context,
it makes perfect logical sense that a limit should be put on the time a landowner can ignore
either their property or anothers possession.
Of course, the most fundamental question this raises is human rights, how does the
law of AP affect the human rights of landowner? In Family Housing Association v
Donellan, claim by Family housing that the grant of a possessory title to Donellan in
accordance with provision of Limitation Act1980 was in breach of Housing Associations
human rights under protocol 1 article 1 (A1P1) of ECHR. However, high court decision held
that the Limitation Act did not breach A1P1 of convention. The matter was again raise in
Beaulane Properties v Palmer, Nicholas Strauss CQ found that AP relating to land which is
registered under the LRA1925 does in fact infringe upon Rule 2 of A1P1. This decision was
immediately criticised and the law now superseded by Pye v Graham.
In Pye, HRA had not yet been brought into force and so issue of human rights was not
considered. Yet, it had been brought to ECJ by UK government. At first instance, Neuberger J
claimed that loss of title through AP was illogical and disproportionate being draconian to
the owner and a windfall for the squatter in a climate for the squatter in a climate of
increasing awareness of human rights. However, Mummery LJ in the court took the opposite
view, stating that the law on AP possession did not contravene any ECHR rights, as such
rights are not absolute in their own terms and must be yield in the face of public policy. Later,
grand chamber found that the provision of LA1980 were not in breach of Article1 as, the
question of negligence arose. Following Grand Chamber decision, in Ofulue v Bossert, court
held that there was no reason to depart from the finding of ECHR that the LA were not
convention compliant. Accordingly, Bossert was allowed to retain the property that he
acquired through AP. This decision have effectively brought an end to any further claims
being made that the law of AP is in breach of HRA. Manchester City Council v Pinnock
which is tenancy case is only in the highly exceptional circumstances that Article 8 would
be invoked.
Based on the law under the LRA 2002, which places a higher burden on the squatter
to claim the land, and the argumenta lay out to retain the law of AP, there is a fair balance
struck between the paper owner and squatter which is very much in line with human rights.