The term adverse possession often paints a hostile picture of squatters occupying land that is not t

Although the time limit with regards to adverse possession is set out by the Limitation Act, it is within common law that further requirements for adverse possession are established. The leading case that first identified these requirements is that of Buckingham County Council v Moran.

The first principle is that the true owner must lose possession. This simply means there must be a dispossession of the land as explained by Rains. By fencing in the land and securing the gates with a lock it is clear that Tom has driven the developers out of possession, as they no longer have access to the land.

In connection with this Moran also requires that the intruder must take possession. Possession here is most commonly considered as being factual possession and that there is some degree of physical control. The possession must also be of an unequivocal and exclusive in nature. In the scenario the fact that Tom has erected a fence can again be used. By doing this it shows that Tom does have exclusive possession as he can shut others out although he does allow the parking of cars for his own business purpose. The possession is also unequivocal as no one has factual possession of land as Tom does.

Thirdly, the most seemingly obvious requirement for a successful claim of adverse possession is that the possession by the intruder must be adverse. The intruder’s use of the land must be inconsistent with the true owners possession, as well as being without their (true owners) permission. Tom’s possession of the land, using it as a car park, is clearly inconsistent with Lanchester Developers’ future plans to build a house. It is also clear that Tom is there without the permission as the developers wrote to him asking him to vacate the land. However, writing a letter does not have any legal consequence and the true owner must take further actions such as beginning an eviction process in order to end the limitation period.

The fourth principle links closely to the second. This principle requires that there must be animus possidendi – or an intention to possess. The fact that Tom has taken factual possession of the plot by erecting a fence shows that he intends to possess the land. Under the Limitation Act the intention to possess was not affected by the intruders belief of whether or not he actually owned the land. So although Tom believed to begin with that the land was his, his position is not affected once he realises the true owners are Lanchester Developers. Upon realising that the land belongs to the developers Tom offers to pay for its use, recognising their superior title. Could it be held that this offer of payment is fatal to the claim of adverse possession? In Pye v Graham the Graham family offered to pay for a piece of land once an arrangement for them to occupy came to an end. The House of Lords held that the important factor was not what they believed but that they had been in possession of the land for the relevant period of time. Using this authority, if the land is unregistered Tom’s a claim for adverse possession would be successful as he has been in factual possession for the twelve years. However, if the payment had been accepted then this would amount to permission and there would be an end to the adverse possession.

In order for a claim to succeed all four principles must be satisfied and no action undertaken that will end the limitation period. In the scenario Tom has succeeded in satisfying the necessary requirements and as there was no break in the adverse possession nor adequate action taken by Lanchester Developers, Tom would be successful in his claim for adverse possession if the land is unregistered.

However, if the land is registered, Tom’s position has changed with the introduction of the Land Registration Act. Under the old law if Tom were to succeed in his claim for registered land Lanchester Developers would become his trustees. Now if he were to succeed, his name would replace the developers on the land register. Not only does the Act reduce the limitation period to 10 years; it also changes the application process of the adverse possessor.

With the new law Tom would not be able to use his twelve years. This is because they have not been occurred before the enforcement of the Act. Tom would no longer gain an automatic resolution as under the Limitation Act, but instead he now has to make an application to get his name on the register. Using the ten years he accrued before the Act came into effect. In making his application Tom would have to notify all the proprietors of the land as stated under Schedule 6. In notifying the proprietors – and so the developers – they are given the opportunity to reject the application and take further legal action to regain control of the land. If after two years the company fail to take action Tom can reapply, this time without having to notify the interested parties. If this application is successful Tom’s will substitute the developers names on the register as the new proprietor. This is different from the old law where Tom would be registered as the beneficiary to the land and the developers would act as his trustee.