With the continued “roll-out” of land registration, cases such as Janet’s will become increasingly rare since the Land Registration Act 2002 makes major changes to the process of acquiring registered land by adverse possession. However, Richpickings is part of Wasteland which is currently unregistered.
If Janet is to establish ownership of Richpickings by adverse possession, she will have to demonstrate both the fact of possession and the intention to possess (animus possidendi). The test in respect of the former was stated by Slade J in Powell v McFarlane :
“What must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.
The animus possidendi is defined by Slade J. (ibid.):
“…the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title…so far as is reasonably practicable and so far as the processes of the law will allow.”
A “squatter” who satisfies these requirements must remain in possession for a minimum of 12 years (Limitation Act 1980, s.15) in order to bar the owner’s right to recover from him. Clearly, there can be no question of the requisite limitation period beginning to run in 1992 since Janet was at that stage on the land with Fred’s permission. However, in 1993, the permission was withdrawn and Janet became at least a trespasser if not a “squatter” (see below). There will have to be scrutiny of the date that permission was withdrawn in1993 in order to determine whether the requirement of 12 years has been satisfied. If Fred were to issue proceedings, this would stop time running (provided that they are not dismissed for want of prosecution or otherwise discontinued: Markfield Investments Ltd v Evans ).
There is scope for argument as to whether Janet has acted sufficiently to establish the exclusive possession of Richpickings required for adverse possession. It was stated in Seddon v Smith that for open land “enclosure is the strongest possible evidence of adverse possession, but it is not indispensable”. Janet has not fenced off the land in the manner which is familiar in such cases; she has cultivated it for some 8 months of the year and has now erected a total of three sheds in a location where they are not visible from the rest of Wasteland. Occasional use of land has been held to be sufficient in some circumstances (see, for example, Red House Farms (Thornden) Ltd v Catchpole in which shooting wildfowl was held to be a sufficient act of possession because this was the only purpose for which the land could be used) but Janet must be able to show that her possession of the land is exclusive. She is assisted in this regard by the fact that Fred has been largely absent. She does not have to prove that Fred was actually aware of her occupation of the land (Powell (supra)) but the use must be open so that he has the opportunity of finding out about it. In this regard, the fact that the sheds are not visible from the remainder of Wasteland is probably not material - Fred remains the owner of the land during the limitation period and as such he would have the opportunity to enter whereupon the cultivation of the land (for most of the year) and the existence of the sheds (all the time) would be readily ascertainable by him.
So far as the requisite animus possidendi on the part of Janet is concerned, the courts will scrutinise her ascertainable intentions. In Prudential Insurance Co Ltd v Waterloo Real Estate Inc , the Court of Appeal stated:
“The claimant must, of course, be shown to have the subjective intention to possess the land, but he must also show by his outward conduct that that was his intention.”
Assuming that Janet claims to have had the intention to possess (note that it is the intention to possess that is the appropriate test; there does not need to be an actual intention to acquire title), a court would be loathe simply to accept her evidence of subjective intention without more. Some evidence of conduct will be required. In Buckinghamshire County Council v Moran , the defendant had cultivated a piece of local authority land which adjoined his garden. He fenced it and then installed a gate which he chained and padlocked. The Court of Appeal regarded the locking of the gate as “a final unequivocal demonstration of the defendant’s intention to possess the land”. In the case of Janet, the success of her claim must be less certain - the cultivation and even the erection of the sheds may be argued not to amount to an intention to exclude the owner.
In this case, Fred has only recently informed Janet of his intention to build a hotel on the land. Arguably, therefore, prior to this time and possibly for the entire duration of the limitation period, he has had no intention to use the land. It was previously held that in such circumstances, even very substantial acts of possession were not regarded as adverse (Leigh v Jack ). Thus, in Williams Brothers Direct Supply Ltd v Raftery , the cultivation of land followed by the erection of sheds and the fencing of the land for the rearing of greyhounds was held not to amount to adverse possession in circumstances in which the owners intended to develop the land when that became possible. This case has compelling similarities to that of Janet. However, Oakley suggests that such cases do not of themselves establish a general rule based on the owner’s intentions but rather turn on an analysis of the animus possidendi. It was held in Buckinghamshire CC v Moran that if the squatter knows of the owner’s future intentions for unbuilt land, that knowledge may prevent acts of the squatter which are not inconsistent with those intentions from amounting to adverse possession unless there is very clear evidence to the contrary. Here Janet is assisted by the fact that she has only recently been informed of Jack’s intentions. Therefore, the proposal to build a hotel, even if formulated prior to the expiry of the limitation period, will not prevent Janet from having the necessary animus possidendi unless Jack’s intention had been communicated to her.
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