This advice will address the two legal issues facing Stella. First, it will examine whether she can claim ownership of the strip of land owned by Borchester Land plc (BL) through the doctrine of adverse possession. Second, it will consider how she can resist her neighbour Janet’s demand to move the fence that separates their gardens.
(a) Claim to BL’s Strip of Land
Stella may be able to claim ownership of the strip of land in front of her house by establishing a claim for adverse possession. Adverse possession is a process by which a person who is not the legal owner of land can become its owner by possessing it for a specified period of time. The law that applies depends on when the period of possession was completed.
The Relevant Legal Framework
The rules governing adverse possession were significantly changed by the Land Registration Act 2002 (LRA 2002), which came into force on 13 October 2003. However, if a squatter, like Stella, can show that they completed the required period of adverse possession before this date, their claim is governed by the 'old' law, found in the Limitation Act 1980 (LA 1980).
Under the LA 1980, the required period of adverse possession is 12 years (s.15). The key question is when Stella’s adverse possession began. While she started clearing rubbish in 1988, these acts may be considered ‘equivocal’ and not strong enough to demonstrate possession on their own (Powell v McFarlane (1977)). However, her actions in 1990 of planting bushes and trees are much stronger evidence. If we take 1990 as the start date, the 12-year period would have been completed in 2002, which is before the LRA 2002 came into effect. Therefore, Stella’s claim will be assessed under the rules of the LA 1980.
The Requirements for Adverse Possession
To succeed under the LA 1980, Stella must prove two key elements, as established in Powell v McFarlane and affirmed by the House of Lords in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30. These are:
- Factual possession of the land (corpus possessionis); and
- An intention to possess the land (animus possidendi).
This possession must be continuous and without the owner’s permission for the full 12-year period.
Factual Possession
Factual possession requires a sufficient degree of physical control over the land. The court will consider the nature of the land and what an occupying owner might be expected to do with it. Here, the land is an open strip. Stella’s actions appear to go beyond simple tidying.
- From 1988, she cleared rubbish, which shows some control.
- In 1990, she began planting bushes and trees. This act of cultivation and improvement is a strong indicator of factual possession (Hounslow LBC v Minchinton (1997)).
- In 1991, she installed a security camera, an act which suggests an intention to monitor and control the land, excluding others.
- From 1992, she attached bird boxes and filled them with food, treating the trees on the land as her own.
Taken together, these cumulative acts demonstrate a clear and sufficient degree of physical control over the strip of land, consistent with the actions of an owner. The fact that BL had future plans for the land is irrelevant to whether Stella was in factual possession (J A Pye (Oxford) Ltd v Graham).
Intention to Possess
Stella must also demonstrate an intention to possess the land to the exclusion of all others, including the paper owner, BL. This does not mean she needs to intend to own the land, but simply to possess it for the time being. This intention is often inferred from the acts of factual possession. Planting trees and installing a security camera are strong evidence of an intention to possess.
A potential issue arises from the conversation with BL’s director, Adrian, in 2000. Stella stated she would willingly pay a fee for using the land if asked. This might suggest she did not have the necessary intention to possess. However, the House of Lords in J A Pye (Oxford) Ltd v Graham decided on this exact point. They held that a squatter’s willingness to pay the paper owner if requested does not negate the intention to possess. The Grahams had made a similar admission but were still found to have the required animus possidendi. Therefore, Stella's statement in 2000 is unlikely to defeat her claim.
Furthermore, for the limitation period to be reset, the LA 1980 requires a formal, written acknowledgement of the owner’s title by the person in possession (s.29, s.30). Stella’s statement was oral and therefore has no statutory effect. Adrian’s silence cannot be interpreted as giving Stella permission; for possession to cease being adverse, permission must be granted clearly.
Conclusion on the Claim
Stella began a course of conduct in 1990 that amounted to factual possession with the intention to possess. This possession was adverse, as it was without BL’s permission. The 12-year period ran uninterrupted from 1990 to 2002.
Upon the completion of this period in 2002, section 17 of the LA 1980 operated to extinguish BL's title to the land. Stella would have become the new owner of the land. The letter from BL "last month" is therefore too late to affect her position, as their title was lost over two decades ago.
Advice: Stella has a very strong claim to ownership of the strip of land. She should be advised that BL’s title was likely extinguished in 2002 and that she is now the owner. She can now seek to have the title registered in her name.
(b) Resisting Janet’s Demand
Stella has also been asked to move the fence separating her garden from her neighbour, Janet's. The issue is whether the long-standing position of the fence can defeat Janet’s claim that it is on her land according to the paper title deeds.
The Legal Position of Boundaries
While the starting point for determining a boundary is the plan in the title deeds, this is not always conclusive. Where a fence or other dividing feature has been in place for a long time, the legal boundary may have been altered through adverse possession.
Stella can argue that even if the fence was originally built on Janet’s land, she or her predecessors in title have acquired ownership of the strip of land up to the fence line through adverse possession. The legal principles are the same as discussed above: factual possession and an intention to possess for the required period.
Applying Adverse Possession to the Boundary
The existence of a fence is very strong evidence of factual possession. The act of enclosure is "the strongest possible evidence of adverse possession" (Seddon v Smith (1877)). By fencing the land in, the previous owner of Stella's house took physical control of the disputed strip. The intention to possess is also easily inferred from the act of enclosure.
The key question is for how long the fence has been in place. The facts state it was erected by a "previous owner".
- If the fence was erected more than 12 years before 13 October 2003: Stella's predecessor would have completed the 12-year adverse possession period under the LA 1980. Janet's predecessor's title to that strip would have been extinguished. When Stella bought the property, she would have acquired the house along with the additional strip of land.
- If the 12-year period was not completed by 2003: The claim would fall under the LRA 2002. This requires 10 years of adverse possession, after which the squatter can apply to be registered as the owner. The registered owner (Janet) is notified and can object. However, there is a special exception for boundary disputes. Under Schedule 6, paragraph 5 of the LRA 2002, an applicant can be registered as proprietor if they have been in adverse possession for at least 10 years and for that period reasonably believed the land belonged to them. Given the presence of a physical fence, it is highly likely that Stella and her predecessors reasonably believed the land up to the fence was part of their garden.
Given that the fence was erected by a previous owner, it is probable that it has been in place for a very long time, making it likely that the 12-year period under the old law was completed years ago.
Advice: Stella has a strong basis to resist Janet’s demand. Her best argument is that title to the disputed strip was acquired by adverse possession by a previous owner of her property. The burden would be on Janet to prove that the possession has not been for the requisite period. Stella should not move the fence until the legal boundary position is clarified, as she may well be the legal owner of the land up to the fence line.
References
Cases
- Hounslow LBC v Minchinton (1997) 74 P & CR 221
- J A Pye (Oxford) Ltd v Graham [2002] UKHL 30
- Powell v McFarlane (1977) 38 P & CR 452
- Seddon v Smith (1877) 36 LT 168
Legislation
- Land Registration Act 2002
- Limitation Act 1980
