Land Law Problem Question; Adverse Possession, Easements, Covenants and Overriding Interests.

Authors Avatar

The case in hand deals with Nigel as the registered proprietor of Manor Range. In order to fully assess and understand the burdens on his property, we must first understand the crucial concept of registered title in relation to the traditional system of land holding; unregistered title.

If a person has unregistered title to land, in order to sell the property, he or she must go to great lengths to prove ownership of the land. That is, to provide documentary evidence, prove to the purchaser he is the undisputed owner of the land (thus displaying a chain of ownership) and that chain must be traceable by the purchaser for a period of at least fifteen years. Only when all of these criteria are satisfied can the purchaser safely pay his purchase money.

Registered title is the ‘new’ method of land ownership. It was created in a way to streamline the land holding system and divert from the complicated unregistered system.  Essentially all details relevant to the land are recorded in one register, the Land Registry (which is open for anyone to view according to the Land Registration Act 1988). Thereby, anyone wishing to purchase a plot of land can, in theory, easily discover all pertinent details applying to that land.

Nigel’s status as registered proprietor will greatly effect the outcome of the burdens on his land in terms of whether they are enforceable against him.

Mark’s hut on Nigel’s grounds deals with the subject of adverse possession. The law recognises, and has done for some time, that if an owner does not assert his or her ownership of their property over a long period of time then another has the right to take the property over and claim it for themselves (providing the other person has treated it as their property for a long period of time). Per Streatfield, j ‘…those who go to sleep upon their claims should not be assisted by the courts recovering their property, but another…’ As a result of the Land Registration Act 2002 it is far more difficult for someone to dispossess an owner of their land. In registered land, the paper title owner (in this case Nigel) will be registered on the Proprietorship Register at the Land Registry, and as such will be notified if any person should try to make a claim over his land.

In order for Mark to gain rights over Nigel’s land, he must first satisfy three requirements; the first being that he has factual possession of the land, the second that he has the necessary intention to adversely possess the land, and finally that he has possessed the land for longer than ten years.

In order to prove that Mark has factual possession of the land, it must be shown that he has taken physical control of it. According to the rule in Seddon v Smith,  ‘enclosure is the strongest possible evidence of adverse possession’; thereby the fence Mark erected around his hut could be sufficient evidence of possession as he is, by means of the fence, intending to exclude all others.

In order for Mark to show his intention to possess, the courts will need ‘clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such an intention clear to the world’. The fact that Mark’s inhabiting of the hut is easily discoverable and that the hut is surrounded by a fence he has erected would surely show that he has a clear intention to possess the land, this notion is shown in the case of Buckingham County Council v Moran, whereby the erection of a fence and locked gate were enough to show intention to possess.

Join now!

As well as establishing possession, it must be shown that the possession has been for an unbroken period of time, as indicated by the aforementioned case of Buckingham County Council v Moran. We know from the facts given that Mark had lived on the land for 15 years without the previous owner objecting, which would indicate that Mark’s period of possession is unbroken. Mark’s possession appears to be openly exercised as his dwelling seems reasonably discoverable by Nigel, therefore Mark’s possession would be clear had Nigel happened upon his hut in the woods.

It can be inferred that Mark has ...

This is a preview of the whole essay