This problem question deals with the law of adverse possession of land.

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This problem question deals with the law of adverse possession of land. In order to advise Jason as to his position, the principles that govern this area of law must first be identified. Once identified, these rules can be applied to the specific situation at hand. The idea behind adverse possession is that of title by long possession. It is an accepted commentary that ‘certainty of title to land is a social need and occupation of land which has long been unchallenged should not be disturbed’. Under the rules of property law a person who takes possession of land immediately assumes property rights over all but those persons who, like the landowner can assert a better title. The law of adverse possession makes it possible for this person to become the legal owner of the land through mere lapse of time by extinguishing the title of the paper owner if he does not take action to recover his land within a given time period. The policy behind this rule is that ‘those who go to sleep upon their claims should not be assisted by the courts in recovering their property’.

         Before there can be a successful claim of adverse possession certain statutory and common law requirements must be fulfilled. The statutory rules are found in the Limitation Act 1980. The legislation says that no action can be brought by a landowner to recover his land after the expiration of twelve years from the date on which the right of action accrued to him, or from the date on which the right accrued to some person through whom he claims. The right of action is seen as having accrued once a landowner has been dispossessed of his land or has discontinued use of it and the land is in the adverse possession of some other in whose favour the period of limitation can run. The result of land being adversely possessed for the entire period of limitation is that the original landowner’s title is completely extinguished, putting the adverse possessor of the land in the position of having a possessory title which is good against the whole world.

        I will look first at the situation involving the adjoining farmland on the east side. Although Jason purchased Holly Cottage in 1991 and so cannot have been in possession of the disputed land for twelve years, it is still possible for Barry’s title to have been extinguished. The legislation states that the adverse possession must be continuous against the landowner but need not be maintained by the same individual for the entire time. Successive periods of squatting can be cumulative in effect so there is a possibility that the land has been adversely possessed for sufficient time. If Jason is to prove that Barry has lost his right of action, his chances will initially rely on whether he can show that Jill exercised adverse possession of the disputed land in her time at Holly Cottage. The requirements needed to prove successful adverse possession are to be found in the common law and were reviewed in the Court of Appeal case Buckingham County Council v Moran. Firstly, the owner must lose possession. Possession can only be lost through discontinuance or dispossession. Discontinuance is particularly difficult to prove as even when the landowner is not in actual possession of the land there is a presumption that he has constructive possession of it. Dispossession requires some act, or ouster by the squatter that results in depriving the landowner of use of the land. Secondly, the intruder must take factual possession of the land. This possession must be open rather than in secret, must be gained without the use of force and must not be with the consent of the landowner. Possession must be exclusive and the alleged possessor must have exercised an appropriate degree of physical control over the land. Decisions on the sufficiency of possession are dependant upon a situations specific facts, and acts that imply possession in one case may not be adequate to prove it in another. Factors that should be taken into account include the character and value of the land, it’s natural mode of use and whether the alleged possessor has dealt with the land ‘as an occupying owner might have been expected to deal with it’. The third provision is that the possession must be inconsistent with the landowner’s title. This is the ‘adverse’ requirement for a successful claim. Any possession that is concurrent with the landowner’s is not sufficient to support a claim. Possession that is exercised with the permission of the landowner or under some lawful title can never be adverse in nature. Finally, the adverse occupier must have an intention to possess the disputed land. The intention required comprises an ‘intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner… so far as is reasonably practicable and so far as the processes of the law will allow’. 

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Jill used the land for growing fruit. This seems to be a reasonable mode of use as the land is farmland so there is a good chance that Jill will be seen as having took factual possession. The existence of the letter tells us that since at least 1976 her possession would have been without the consent of Barry and therefore adverse to his title. The fact that Barry had an intent to use the land in the future would have no bearing on the claim. It is long sustained possession that is the root to a successful claim, not ...

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