Exceptions to the Doctrine of Adverse Possession: Cautionary Tales for Legal Advisors | Exams Nursing

ADVERSE POSSESSION

WARNING SIGNS FOR THE UNWARY

Many claims of adverse possession turn on the facts of the particular case and, if a claim fails due

to weaknesses in the clients’ evidence, this does not necessarily reflect badly on the legal advisors.

However, if a claim fails because it comes within one of the many exceptions to the doctrine of

adverse possession, the clients may justifiably turn to their legal advisors and say, “You should

have warned me!”

Following the final decision in the Pye Casei, the Land Registry has been dealing with a steady

stream of applications for adverse possession. Quite a few of those applications have been

defective. Some simply failed to comply with Land Registry requirements but, in a significant

number of cases, the applicants seemed to be unaware that there are many exceptions to the

“twelve year rule”.

The purpose of this article is to draw attention to situations that should set warning bells ringing

for the practitioner.

The following examples are intended to illustrate some typical problems but do represent an

exhaustive list. In each example the clients have been in exclusive possession of a piece of land for

at least 12 years but, for a variety of reasons, they would not be entitled to claim adverse

possession.

Crown Land - Andrew tells you that he has been farming a field, which is registered in the name

of the Department of the Environment, for the past 17 years and he wants to apply for it to be

registered in his name.

Andrew has not yet established adverse possession because the Department of the Environment is

a Crown body and the limitation period for land owned by the Crown is 30 years. ii

Acknowledgement – Brian has occupied a piece of ground for 14 years. About 7 years ago he

managed to trace the Personal Representatives of the registered owner and wrote to them offering

to buy the ground. He got no reply and continued in occupation.

Brian cannot claim adverse possession to the ground at this stage. The period of possession has

been interrupted by the written acknowledgement, so he will have to wait until 12 years after the

acknowledgement before making a claim.iii

Unpaid Rent – Caroline holds land under a lease but, since she has not paid any ground rent for

13 years, she wants to claim the freehold title by adverse possession.

Since the lease is still subsisting, Caroline is estopped from denying her landlord’s title and cannot

claim the freehold. She has only succeeded in barring the landlord’s right to arrears of rent that

have been outstanding for more than 6 years.iv

Unsound Mind - Derek tells you that his uncle, Edward, was diagnosed with dementia 14 years

ago and went into a nursing home. Derek took over his uncle’s land a few months later and has

farmed it ever since. Edward died last month and Derek wants to have the land registered in his

name.

Derek is not entitled to claim ownership by way of adverse possession at this time because the

limitation period against someone who is of unsound mind continues for 6 years after they either

recover or die.v

Limited Ownership – Francis has been in possession of land registered in the name of a Limited

Owner (or, in the case of unregistered land, a tenant for life or tenant in tail) for more than 12

years. Investigations show that the Limited Owner died two years ago.

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ADVERSE POSSESSION

WARNING SIGNS FOR THE UNWARY

Many claims of adverse possession turn on the facts of the particular case and, if a claim fails due to weaknesses in the clients’ evidence, this does not necessarily reflect badly on the legal advisors. However, if a claim fails because it comes within one of the many exceptions to the doctrine of adverse possession, the clients may justifiably turn to their legal advisors and say, “You should have warned me!”

Following the final decision in the Pye Casei, the Land Registry has been dealing with a steady stream of applications for adverse possession. Quite a few of those applications have been defective. Some simply failed to comply with Land Registry requirements but, in a significant number of cases, the applicants seemed to be unaware that there are many exceptions to the “twelve year rule”.

The purpose of this article is to draw attention to situations that should set warning bells ringing for the practitioner.

The following examples are intended to illustrate some typical problems but do represent an exhaustive list. In each example the clients have been in exclusive possession of a piece of land for at least 12 years but, for a variety of reasons, they would not be entitled to claim adverse possession.

Crown Land - Andrew tells you that he has been farming a field, which is registered in the name of the Department of the Environment, for the past 17 years and he wants to apply for it to be registered in his name. Andrew has not yet established adverse possession because the Department of the Environment is a Crown body and the limitation period for land owned by the Crown is 30 years. ii

Acknowledgement – Brian has occupied a piece of ground for 14 years. About 7 years ago he managed to trace the Personal Representatives of the registered owner and wrote to them offering to buy the ground. He got no reply and continued in occupation. Brian cannot claim adverse possession to the ground at this stage. The period of possession has been interrupted by the written acknowledgement, so he will have to wait until 12 years after the acknowledgement before making a claim.iii

Unpaid Rent – Caroline holds land under a lease but, since she has not paid any ground rent for 13 years, she wants to claim the freehold title by adverse possession. Since the lease is still subsisting, Caroline is estopped from denying her landlord’s title and cannot claim the freehold. She has only succeeded in barring the landlord’s right to arrears of rent that have been outstanding for more than 6 years.iv

Unsound Mind - Derek tells you that his uncle, Edward, was diagnosed with dementia 14 years ago and went into a nursing home. Derek took over his uncle’s land a few months later and has farmed it ever since. Edward died last month and Derek wants to have the land registered in his name. Derek is not entitled to claim ownership by way of adverse possession at this time because the limitation period against someone who is of unsound mind continues for 6 years after they either recover or die.v

Limited Ownership – Francis has been in possession of land registered in the name of a Limited Owner (or, in the case of unregistered land, a tenant for life or tenant in tail) for more than 12 years. Investigations show that the Limited Owner died two years ago.

Francis cannot claim adverse possession against the person entitled in remainder until the expiration of 6 years from the death of the Limited Owner.vi

Foreshore – Gerry’s house adjoins a beach and Gerry claims to have been in adverse possession of a defined portion of the beach for 15 years. The portion of beach includes an area of foreshore. Gerry may be able to claim title to part of the beach, but he can only acquire title to the foreshore after 60 years adverse possession.vii

Easement – Helen’s land has the benefit of a right of way over a laneway. Helen tells you that for more 15 years she and her family have been the only users of the laneway. Irene, the owner of the neighbouring land that includes the laneway, has other access to her land and does not need to use the laneway. Helen has repaired the laneway and cut back the hedges and shrubs on either side. She now wants to be registered as owner of the laneway. Since Helen’s activities are consistent with her entitlement to exercise an easement over the laneway, she is unlikely to succeed in her claim unless she can produce evidence that points clearly to ownership - for example, by showing that she put a gate at the entrance more than 12 years ago to prevent others from using the laneway.viii

Encroachment – John and Kathleen bought their house from a housing association 2 years ago. They lived in the house for 15 years before purchasing it and, during that period, they used an adjoining piece of waste land as part of their vegetable garden. They have continued using the adjoining ground over the past 2 years but have recently discovered that it is still registered in the name of a third party and they want to have it registered in their names. John and Kathleen cannot claim ownership because of the doctrine of encroachment. Since they were tenants for most of the period during which they used the ground, the adverse possession was acquired on behalf of their landlord.ix

No conveyance from previous squatter - Laura tells you that, when she bought her house 3 years ago, the previous owner, Michelle, provided a Statutory Declaration stating that she had been in adverse possession for 16 years of a strip of ground, which now forms part of the garden. Laura wants to sort the title out before she sells the house. Since Laura only has 3 years possession in her own right she should obtain a conveyance of the strip of ground from Michelle. In the absence of a conveyance, there is nothing to show that the ownership acquired by Michelle has been transferred to Laura.x

Permission – Nuala, who is a dog breeder, tells you that 13 years ago her neighbour Olive decided to move abroad and rent out her house. Olive told Nuala she could use a strip of ground between their gardens as a dog run while she was away. Nuala fenced off the dog run and continues to use it. Olive never returned to the house and has now died, so Nuala wants to sort out the title in case she has any problems with a new neighbour. Nuala’s possession to the strip of ground was with the owner’s permission. Unless she can produce evidence to show that she had been a tenant at willxi^ rather than a licensee she cannot claim adverse possession.xii

Occupation not adverse – Patricia is the granddaughter of Richard, the registered owner of a dwellinghouse, who died 15 years ago. After Richard’s death, Patricia’s aunt, Shauna, continued to live in the house on her own. Believing that she had acquired adverse possession, Shauna left the house to Patricia in her will. Shauna has now died and Patricia wishes to sell the house. However, an inspection of Richard’s will shows that he had left the house to Shauna for life. Since Shauna’s occupation was as of right it does not constitute adverse possession. Therefore, the property now belongs to the persons entitled in remainder under Richard’s will.xiii

Exceptions to the Doctrine of Adverse Possession: Cautionary Tales for Legal Advisors, Exams of Nursing

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ADVERSE POSSESSION

WARNING SIGNS FOR THE UNWARY