Nikita is concerned withestablishing the status of the property that she acquired over the past decade.
Whether or not Nikita will have a right for action in possessing the property, dependson whether she fulfils the specific criteria required after considering theevents that occurred. In 2004, she discovered a bungalow in a hidden andabandoned location, where she managed to gain access by easily unlocking the gatedue to the poor conditions. Nikitavisited the site many times and eventually decided to live there. Prior to hermove in she spent 6 months clearing the debris around the area and invested init to make it a more suitable home.
In 2012, Nikita then contacted theregistered proprietor to make an arrangement for the remaining furniture thatstill belonged to the owner. She received no response until she decided to beentered as the new registered proprietor in 2014. The owner then imposed anobjection which held Nikita’s registration process, and stated to her 3 yearslater that her possession is not adverse. This scenario deals with adversepossession which is the informal acquisition of a legal estate in land1.It operates in this situation by virtue of the fact that Nikita has assertedsome control over the land throughout the years, and there has not, until 2017,been any expression by the owner of its control over the land, therefore Nikitamay have some remedies when claiming ownership of the property. In order to advise Nikita as to hersituation, the doctrines that govern this area of law must be identified, thenapplied to her issue regarding possession of the property. The rules of adversepossession consist of acquiring a legal estate through the concept ofrelativity of title and limitation periods. Nikitas relativity makes it clearthat she was the most recently in possession, giving her a stronger claim toownership.
One of the principles in adverse possession to consider is thatfirst in time takes priority.2However this is a longstanding law which has been reformed into considering thatthe title that was executed earlier will lose its priority instead. Under the Land Registration Act (LRA) 2002, anestate owner can lose possession of their land if an individual asserts adegree of control over the property for a minimum of 10 years.3Concerns were developed towards this legislation in the sense that it infringesthe right of property for owners under Article 1 of the ECHR4,however it was concluded that the provisions behind adverse possession does notaffect the freedom in enjoyment of possessions5.The policy behind this rule is that “those who go to sleep upon their claimsshould not be assisted by the courts in recovering their property.
“6Prior to her move in, Nikita had spent a time period of 6 months financing therenovations that were completed to the bungalow. The basis for the acquisitionof a legal estate by adverse possession is long use.7 After placing a significant amount of effortin adjusting the conditions of the abandoned property, she then lived in it fora further 13 years before hearing a statement from the original proprietor. Asrecognised by the court in Powell v McFarlane (1979)8,claiming for an ownership title is also dependent on demonstrating that theadverse possessor intends to possess the land adversely, either through dispossessionof the paper owner, or its discontinuance in possession. Dispossession arises when a “person enters and puts another outof possession.”9 Discontinuanceis where “the person in possession abandons possession and another then takesit.”10It would not be considered discontinuance from only the absence of physicaloccupation by the owner, but rather from the absolute abandonment of occupationand control.
Nikita returned to property several times and ensured that no onehad been recently occupying the bungalow. Additionally, as demonstrated by Pyev Graham 200211,if the possessor occupied the land with the permission of the paper owner,there is sufficient evidence that the continued occupation after the permissionwas given, is then terminated with the relevant intention to possess. The circumstances of this case make it clearthat Nikita regarded the land as being hers to do with as she chooses withoutany authorisation or written consent. She also continued to possess theproperty with and without the knowledge that another person may have a claim. Whenshe came across the property, the conditions of the home revealed no signs ofany recent activity taking place in the area. It can be recognised that heractions gave indication to the necessary intention required through her effortsof fixing the home and moving in. The owner had clearly discontinued occupying theproperty and deserted any remaining belongings before she took control for a periodof time which then instigated her adverse possession. Furthermore, there are threeelements necessary for it to successfully constitute as adverse possession,factual possession, intention to possess, and absence of consent from the paperowner.
“Factual Possession signifies an appropriate degree of physical control.It must be single & exclusive possession … what must be shown is that thealleged possessor has been dealing with the land as an occupying owner mighthave been expected to deal with it and that no one else has done so.”12The first element of factual possession can be seen to be met by the fact thatwhen the boundary gate was opened by Nikita, it removed the barrier to theproperty. She also arranged for a local garage to remove a vehicle from theparking space. It was noted in Burns vAnthony (1997)13that the action of parking vehicles on land can amount to adverse possession.It is possible to believe that the same action of removing the previous vehicleto make space for use of her own can amount to the same type of possession.
Itshould also be considered that her arrangements for removing the debris andleft overs around the property constitutes as taking control. This is becausethese are the same actions that the original proprietor would have taken whenentering the property. From the facts of the case, she has done everything exclusivelyand without the use of force, and can be seen to have factual possession. Once factual possession can be proven, theadverse possessor must also ascertain their intention to possess. The possessormust have the intent to gain exclusive control on behalf of one’s own value.According to Buckinghamshire County Council v Moran (1988)14,it is necessary to prove “not an intention to own or to acquire ownership butan intention to possess.”15Every act taken can be relevant in proving the sufficient intention that isneeded. She took measures into fixing the property after bearing in mind thather previous home had much higher expenses.
Since the home was a bungalow, itis recognised that it had locks which she may have changed in the renovationprocess resulting in an intention to possess. All the structural works that were carried outto the bungalow can be viewed as evidence of her will to fully acquire theplace. In Pye v Graham 200216,it was acknowledged that intent may be deduced by the claimant’s physical acts.However, Nikita made full use of the bungalow and its surroundings as if it washer own, proving that her conduct is enough to establish intent and commitment.In relation to Powell v McFarlane (1979)17,it was suggested that ‘unequivocal’ acts by the claimant established intent,unless the paper owner could demonstrate otherwise. Nikitas situation in thiscase shows that it is without doubt that she had the intention to possess asshe excluded everyone and exercised a large amount of physical control throughdifferent means of investing, and occupying the property without theinvolvement of the proprietor.
The paper owner also did not prove otherwisesince the owner has not visited or seen the property and its changes. Althoughshe did not physically place any enclosure notices, it was confirmed in Pubrickv London Borough of Hackney 200318,that the fact that the claimant could have done more does not defeat a claim ifwhat she or he had done is sufficient to demonstrate both factual and intentionto possess.19 Furthermore,when claiming ownership Nikitas interests must be averse to the interests ofthe paper owner. The possessor must be occupying the land as a trespasserrather than someone who is entitled because they had the permission to livethere under a granted license. As the paper owner did not give consensual orunilateral permission to Nikita, she has therefore been able to fulfil the lawrequirements for not having a valid consent from the owner. Prior to the reformation of the LRA2002, the law permitted an adverse possessor to automatically acquire ownershipafter occupying a property or land for 12 years. The LRA 1925 made it possibleto extinguish the paper owners title after the possessor lived on the land forthat specific time period before the new enactment. The introduction of the newLand Registration Act in 2002 made it necessary for the adverse possessor toapply for registration rather than automatically becoming the proprietor afterthe required time limit has passed.
The reformation also aided to the differentconcerns regarding owner rights and having freedom in property. There has beena shift of placing the burden on the adverse possessor to take the reasonablesteps to secure unregistered or registered land following the enactment of theLRA 2002. In unregistered land, the adverse possessor must continually possessthe land for 12 years.
The regulation differs for registered properties byallowing a claim for adverse possession after 10 years or more under schedule 6of the LRA 2002.20 Thelegal proprietor then has 65 days to object the first notice given by theadverse possessor, then a further two years to take physical action in removingthe possessor from the property. If there is an objection, the adversepossessor’s application will be rejected unless they can establish theirentitlement. The law required Nikita to apply for registration rather than automaticallyclaiming ownership.
She received no response to her initial letter regardingthe removal of furniture. She then notified the registrar in 2014 by asking tobe registered as the new owner. It has been recognised under section 29 of theLimitation Act 198021that the “accrual of time in relation to adverse possession starts afresh inthe event of an acknowledgement of the paper owners title.
“22The owner then responded and argued that Nikitas possession is not adverse,since the letter she sent out prior to her registration constituted as aninterruption of the adverse possession time period. This is because sheacknowledged that another individual held an ownership title. However, for adocument to constitute an acknowledgement of title, all that is required isthat the person in possession acknowledges that the paper title owner hasbetter title to the land.23The contents of Nikitas first letter did not contain statements describing thatsomeone else held a superior title, it only stated that an arrangement must bemade for the remaining furniture, and informed that she is now currently livingin the property.
The construction of the document expressed that she was theone who held a better title to the land. If it was held that her letter is aform of acknowledgement, she would only be considered an adverse possessor fromthe date the letter was sent and not the day she moved in 2004. This would diminishthe time limit the possessor has been on the property and restart the timelimit for adverse possession again. A similar situation took place in Zarb vParry 201224, wherethere could have been an interruption to adverse possession due to a letteracknowledging the legal owners title, however it was held that the document wasinsufficient to disturb the adverse possession of the respondents.
This isbecause the information contained in the letter was not enough and did notclearly state an acknowledgement to the owner. Likewise, it was also confirmedin Ofolule v Bossert 200925,that where a letter is written ‘without prejudice’ during negotiations with aview to compromise, the protection that these words claim will be given to it unlessthe other party can show a good reason for not doing so.26The law cannot exclude the ‘without prejudice’ rule unless justice clearlyrequires it. Based on the occurrences of the case, the parties should be ableto negotiate freely without the fear that what they say might be used againstthem in the current dispute or any other situation. Nikita had some intention to discuss theremoval of furniture so it can be deliberated as a small form of negotiation. Also,it must be contemplated that the owner didn’t act upon the proceedings that wasimposed and then stalled the registration for a further 3 years.
Additionally,after the registered proprietor was given notice of her application in 2014, theowner should have taken the reasonable steps to assert his or her title byissuing a counter notice, as well as taking physical action of removing herfrom the property. Under the LRA 2002,the registered proprietor has two years in which to commence proceedings forpossession of the land.27In this case, the owner did not continue to proceed with the objection, by notcontacting or taking any further action after issuing their opposition, hencegiving the advantage to Nikita to make a further application for registration.After making the second application, the adverse possessor is immediatelyentitled to be registered as proprietor of the estate.
28The proprietor can take a differentposition and argue that Nikitas claim is not adverse due to the fact that shetrespassed the property. The effect of section 144 of the Legal Aid,Sentencing, and Punishment of Offenders Act 2012 (LASPOA)29would prevent a claimant from relying on any period of adverse possession inorder to establish the basis for an application to become a registeredproprietor.30 Adversepossession unavoidably involves trespass to land and therefore can result in acivil wrong. There were locks on the gates which she deliberately opened andthen entered the estate afterwards. However, this may not result as a successfuldefence for the owner because she did not enter the property knowing that itwas owned or occupied by someone. It was an abandoned bungalow which had rustyand broken locks on the gate. Additionally, she possessed the property withoutthe owner’s consent for a time period of 13 years which fulfils the adversepossession requirement. Section 144 of LASPOA 201231only criminalises the individual’s actions of living in the premises, it doesnot affect any other physical acts of adverse possession.
32Moreover, the act strictly applies to residential buildings as stated insection 3 resulting in it being an ineffective defence for the owner. A relevantissue occurred in Best v Chief Land Registrar 201433,where it was held that any actions taken by the adverse possessor prior to theenactment of LASPOA 2012 can be relied upon to fulfil the requirements foradverse possession. Therefore, in this situation the owner would fail to statethat Nikita trespassed since she opened the locks on the gate and entered theproperty. All her efforts in investingto secure and clear the home before 2012 is sufficient basis to apply forregistration and be used against the owner’s dispute.
Also, the claim wouldfail because the act excludes cases involving abandoned properties or land. Nikitacan then maintain her argument that she did not lose her intention to possessand can also rely on her actions before the enactment of LASPOA in 2012. Based on the facts stated, thelegal proprietor should have taken the appropriate steps required by schedule 6of the Land Registration Act 2002. It states that if the owner makes anobjection within 65 days towards an adverse possessor, they then have 2 yearsto follow up on the objection by physically acting upon it to repossess theirproperty. There are two ways to physically claim the property, either by comingto an agreement with the possessor so that if they continue to occupy theproperty, it would be with a lease and therefore terminate the adverse possessionperiod. Secondly, the paper owner must actually remove the possessor from the estateand exclude them from having any control towards the property or land. Althoughthe owner imposed an objection to Nikita, it can be argued that no furtherphysical or oral action was taken by the proprietor in possessing the property.Nikita continued to live in the bungalow for 3 years after her registrationprocess was held, and therefore she has the right under the Land RegistrationAct to reapply for possession.
She also continued to prove in the two-year timelimit that she is entitled to be registered as she stayed occupying thedisputed property. The written communication of the letter that was sent isinsufficient to stop the limitation period from running. To successfully endthe limitation period, the paper owner should have brought action to theproceedings and not only have imposed an objection. If the owner has intent touse the land in the future it has no effect on Nikitas claim, because it is thelong-sustained possession that makes a successful claim, and not the futureintentions of the owner. There is also no need for the paper title owner toknow that he is bringing the adverse possession to an end, it is the quality ofthe acts which matters and not any oral declarations.34In the second application, the registrar takes no steps in notifying theproprietor but rather the adverse possessor becomes immediately entitled to beregistered as proprietor of the estate. This would successfully apply to Nikitaas she heard nothing from the owner, and therefore the paper title ownerdoesn’t have a sufficient justification for enforcing a charge against theadverse possessor who may obtain registration.
What is also required fromNikita is to prove an intention to possess and not an intention to own in orderto claim adverse possession in which she managed to maintain over the years. It can be evaluated that Nikita maysucceed in her claim for adverse possession. This is because her actions throughoutthe years of fixing the bungalow and living in it demonstrated her factual andintention to possess the property. Shefulfilled the requirements for adverse possession and the letter she sent doesnot amount to an acknowledgement. This is because its contents did not containanything except statements informing that the remaining furniture needs to beremoved, and that she is currently living in the property.
The acknowledgementrequires a statement showing that someone else holds a superior title, but inNikitas case she was showing that she was presently in control. The rules onadverse possession require the legal proprietor to take further action afterimposing an objection to Nikita. However, the registered proprietor did notattempt to remove her from the property or state any additional objectionswithin the two years that was given by law. This allows Nikita to re-apply for possession and automatically beregistered as the new owner without contacting the registered proprietor again.
She would mainly succeed in gaining the land through the inactivity from thetrue landowner. 1 McFarlane, B., Hopkins, N.
,Nield, S., “Land Law” (2015) 3rd Edition, Oxford University Press:United Kingdom. Pg. 248.2 Nathan Moore lecture notes onAdverse Possession3 Land Registration Act 2002Schedule 24 European Courts of HumanRights (ECHR) Article 15 Ibid 46 Lloyds v Butler R BPolicies at 1950 1 KB 767 McFarlane, Hopkins, and Nield,”Land Law” (2015) 3rd Edition, Oxford University Press: UnitedKingdom.
Pg. 248.8 (1979) 38 P & CR 4529 McFarlane, Hopkins, andNield, “Land Law” (2015) 3rd Edition, Oxford University Press:United Kingdom. Pg. 25310 Ibid 911 2002 3 WLR 22112 Powell v McFarlane (1979)38 P & CR 452,46813 (1997) 74 P & CR D 4114 (1988) 86 LGR15 Ibid 1416 2002 3 WLR 22117 (1979) 38 P & CR 45218 2003 EWHC 1871 26219 Ibid 1820 Land Registration Act 2002Schedule 621 Limitations Act 1980section 29(2)22 Ibid 1923 Edington v Clark 1964 1QB 367 (CA) 24 2012 1 WLR 1240 25 2009 EWCA Civ 7; 2009 1AC 990 26 Ibid 2127 LRA 2002 para 6 28 LRA 2002 para 729 Legal Aid, Sentencing, andPunishment of Offenders Act (LASPOA) 2012 Section 14430 Ibid 29 s.
14431 Ibid 2932 Ibid 29 s.14433 2014 EWHC 1370 (Admin)34 McFarlane, Hopkins, andNield, “Land Law” (2015) 3rd Edition, Oxford University Press:United Kingdom. Pg. 265