Intro:

The law of adverse possession is one of the more remarkable features of English law. It is, in effect, a set
of rules that offers an opportunity to a mere trespasser actually to acquire a better title to land than the
person who ‘legally’ owns it and to whom it was once formally conveyed with all of the solemnity of a
deed or registered disposition. As we shall see, the LRA 2002 has diminished substantially the chance of
a successful claim to adverse possession of a registered title. Just how much of an ‘opportunity’ now
exists remains a matter of debate. By contrast, if the land is unregistered at the time of the adverse
possession, the adverse possessor has a good chance of success. In fact, adverse possession is rooted in
the feudal origins of English land law and it is the most obvious modern example of the ‘relativity of title’
that once lay at the heart of how we conceived of land ownership. Given that in English law no person
may own land itself – only an ‘estate’ in it – it is in theory perfectly possible for someone other than the
‘paper’ or ‘real’ owner to gain a better title without any formal transfer of ‘ownership’. A person’s title to
land, including the paper owner’s, is, as a matter of theory, only as good as the absence of a person with
a better title. Title is thus relative – it is either relatively better or relatively worse than that of another
person. However, as we shall see, this justification and explanation of adverse possession is fast
becoming out of date. Although it remains the case under the LRA 2002 that a person is still registered
with an estate – not with the land itself (Hence the Crown is authorized to grant itself an estate in order
to register its own land – it cannot just ‘register it’.) – registration as proprietor under the 2002 Act is a
much more robust guarantee of ownership than anything that has gone before. There is still room for
alteration of the register, and adverse possession of a registered title is not impossible, but registration
of a person as proprietor under the LRA 2002 is the closest thing in over 900 years to absolute ownership
of land. This has led to a radical overhaul of the law of adverse possession as it applies to registered land,
and this must be remembered in the ensuing discussion. Similarly, the introduction of a general criminal
offence in relation to squatting in a residential building may have an impact on the ‘squatter’s’ ability to
claim title as it may result in fewer ‘squatters’ (There is no legal distinction between ‘adverse possessors’
and ‘squatters’, unless we reserve the former term only for those people who have actually acquired, or
are intending to acquire, title from the paper owner as opposed to mere transient trespassers.
‘Squatters’ and ‘squatting’ are often used in a derogative sense and conjure up an image that is not a
true reflection of the usual people who succeed in claims of adverse possession: see, for example, the
successful claimants in Pye v Graham) possessing the land for the requisite period of time. Squatting in a
residential building was made a criminal offence with effect from 1 September 2012 under section 144
of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. There is also an older offence under
section 7 of the Criminal Law Act 1977 for a trespasser to fail to leave residential premises when
requested by a ‘displaced residential occupier’ or ‘an individual who is a protected intending occupier’.
The Land Registry’s Landnet publication, No. 32, October 2012, contains a helpful summary of the
impact of the newer criminal offence, and some of the text from Landnet is used in this chapter with due
gratitude to the Land Registry.

The fact that the common law should have developed a set of principles that might operate to deprive a
‘paper’ owner of title to land is not a surprise. Limitation of actions is a feature of all legal systems,
whether based on common law or civil law. The impact in relation to land varies considerably between
different jurisdictions. Historically, the common law always has been more concerned with the
productive use of land and the development of remedies for concrete situations rather than the
formulation of abstract rights. What appears to be a lack of regard for the ‘rights’ of the paper owner is
actually a reflection of a practical concern about how (and when) landowners can take action against
those challenging the use of their own land. So, even allowing for the radical approach of the LRA 2002,
the doctrine of adverse possession can be justified on substantive grounds. In terms of the legal process,
adverse possession is an expression of a policy that denies legal assistance to those who sleep on their
rights, as well as ensuring that there is an end to disputes concerning ownership of land (RB Policies v
Butler (1950)). Similarly, land is a finite and scarce resource, and the principles of adverse possession can
help to ensure its full economic and/or social utilization, as in Hounslow v Minchinton (1997), in which
the adverse possessor brought neglected land back into use. All this said, however, it would be a mistake
to accept unquestioningly the relevance of adverse possession in our modern system of land law. This is
especially so in the context of land of registered title where registration of the ‘paper owner’ in an open,
public register, with a title guaranteed by the State, suggests that we should be very slow to accept that
an interloper might acquire that ownership by merely possessing the land. Indeed, there is a point of
principle here, and in so far as adverse possession had developed as a response to difficulties of proving
title to land (e.g., where deeds were lost or no good ‘root of title’ could be shown), compulsory and
widespread registration of title has removed its raison d’être. If being registered as proprietor of an
estate in the land is supposed to be a guarantee of the validity of that title to the whole world (subject
only to the limited power to alter the register under the LRA 2002), should the registered owner ever be
susceptible to the claim of a mere trespasser? These questions would be even more pertinent should we
move to a system of e-conveyancing, because then it would be vital that the e-register and e-
transactions took priority over the claims of a ‘mere’ possessor. However, given that e-conveyancing in
its original form is now remote, this justification for curtailing adverse possession has lost its relevance.
Finally, we should not ignore the public perception that ‘squatters’ are to be equated with ‘land thieves’,
getting something for nothing. Even if this is a false comparison, it has proved influential politically and
helped persuade Parliament to introduce the general criminal offence of squatting in a residential
building referred to above. Unquestionably, the impact of the LRA 2002 on adverse possession has been
considerable, and the new scheme has been in force for nearly 20 years and successful new claims to
adverse possession of registered land have slowed to a thin trickle. That is, claims in which the adverse
possessor had not completed 12 years’ adverse possession of the registered title prior to 13 October
2003 – the date of entry into force of the LRA 2002. See Baxter v Mannion.

For so long as there remain significant areas of unregistered land - Although less than 12 per cent of
titles remain unregistered, this comprises very roughly just under 20 per cent of land by area. In other
words, unregistered titles comprise large parcels of land, often owned by the Crown, the Church, ancient
institutions and local authorities. If these bodies neglect the care of their land, it opens up the possibility
that their title might be challenged by adverse possessors, and while it is at least possible to claim title
by adverse possession under the LRA 2002, we need to understand the substantive law. In simple terms,
then, in modern land law, there remains one common set of rules concerning how adverse possession
might be established, but two sets of divergent rules about the effect of such a claim on the paper
owner’s title. The rules common to both registered and unregistered land are the substantive principles
developed through case law over many decades and now largely set out by the House of Lords in J A Pye
Ltd v Graham (2002). These rules establish when a claim of adverse possession might succeed factually
and apply equally to registered and unregistered title. Beyond this, however, there is divergence, with
the ‘traditional principles’ of limitation applying to land of unregistered title and the statutory scheme of
the LRA 2002 (with a modification in respect of adverse possession under the LRA 1925) applying to land
of registered title. In fact, it is difficult to imagine a contrast so marked as now exists: adverse possession
of unregistered land remains a real possibility, but successful (‘Successful’ in the sense of the adverse
possessor actually acquiring title) adverse possession of registered land is improbable in those cases
governed wholly by the LRA 2002. The position in respect of registered land governed by the LRA 1925 –
because ‘time’ was complete before the LRA 2002 came into force – is considered below, but generally
favours an adverse possessor. In fact, so safe is land of registered title from new claims of adverse
possession that owners of unregistered estates – particularly local authorities and public bodies with
scattered holdings of land – are applying for voluntary first registration of title primarily to bring
themselves within the protective umbrella of the 2002 Act. The position in respect of registered land
governed by the LRA 1925 – because ‘time’ was complete before the LRA 2002 came into force – is
considered below, but generally favours an adverse possessor.

how Is Adverse Possession Established? The Rules Common to Unregistered and Registered Land:

Whether the claim for adverse possession is made in respect of unregistered land, registered land
subject to the old regime of the LRA 1925 (Being land where the adverse possession was completed
before 13 October 2003, the date of entry into force of the LRA 2002) or registered land subject to the
new regime of the LRA 2002, the crucial question still remains: when will a trespasser be able to
establish ‘adverse possession’ such that he or she might be able to stake a claim to the land? Or, to put it
another way, how is ‘adverse possession’ established factually? The rules about this are the same,
irrespective of whether the land is of unregistered or registered title.

The relevant principles are not found in statute, not even in the Limitation Act 1980 itself, (This governs
the situation in unregistered land and, prior to the LRA 2002, the position in registered land also) but
have been developed through case law over generations. As judge-made law, these principles are
flexible, changeable and malleable and have not always been uniform in approach. Apparently
inconsistent decisions are not difficult to find. This has the advantage that the substantive principles may
respond to changing times, but the disadvantage of making it less easy to predict a court’s decision.
There is no doubt, for example, that some modern decisions have been ‘adverse-possessor-friendly’, in
the sense that the courts no longer manifest an inbuilt hostility to the adverse possessor (e.g. Chambers
v Havering LBC (2011)), - Port of London Authority v Ashmore (2009) (adverse possession of a river bed
by a floating moored vessel), settled prior to an appeal with the claimant accepting a license for life- but
the picture is not uniform and sometimes the paper owner is vindicated even though the adverse
possessor appears to have a strong claim (Smith v Molyneaux (2016)). Although a decision of the Privy
Council in respect of a claim in the British Virgin Islands, the substantive law of adverse possession is
identical to that in England and Wales. Note also that, as a matter of law, adverse possession cannot
operate in respect of land over which a public right of way exists, Bromley LBC v Morritt (2000); R (on the
application of Smith) v Land Registry (Peterborough Office) (2009). It is also clear that the acquisition of
title by adverse possession does not violate the human rights of the paper owner – see Ofulue v Bossert
(2008), which accepts the authority of the ECHR decision in Pye v UK (2008) on this point. In which the
Grand Chamber of the European Court of Human Rights decided that the law of adverse possession
under the LRA 1925 (i.e. the law applicable to registered titles before the 2002 Act entered into force)
was compatible with the ECHR. Therefore, so must be the law under the LRA 2002, given that it is less
generous to adverse possessors. Contrast this with the earlier High Court decision in Beaulane Properties
v Palmer (2005), which attacked the essence of the law of adverse possession on human rights grounds.
Beaulane must now be regarded as unreliable, especially in the light of the decision in Ofulue. HM Land
Registry no longer relies on Beaulane – see Land Registry Practice Guide No. 5, May 2020. A claim of
adverse possession raises both questions of law and fact, and therefore the circumstances which may
trigger a claim are virtually unlimited. However, in J A Pye Ltd v Graham (2002), the House of Lords
sought to bring stability to the law by providing a framework within which cases could be considered.
Together with the earlier decision of the Court of Appeal in Buckinghamshire CC v Moran (1990), the
judgment in Pye provides a definitive statement of the fundamentals of the modern law without
inhibiting its application to unique circumstances. n turn, this decision owed much to the earlier
remarkable judgment of Slade J in Powell v McFarlane (1977), which was explicitly approved in Moran
and in Graham. According to Lord Browne-Wilkinson in Graham, ‘the principles set out by Slade J as
subsequently approved by the Court of Appeal in Buckinghamshire County Council v Moran [1990] Ch
623 cannot be improved upon’. The reasoning of the House in Pye forms the basis of the following
discussion. In simple terms, adverse possession is established by demonstrating the required degree of
exclusive physical possession of the land, coupled with an intention to possess the land to the exclusion
of all others, including the paper owner. It is, therefore, the combination of acts of factual possession
with an animus possidendi (intention to possess) that establishes adverse possession.

An intention to possess:

As recognized by Slade J in Powell v McFarlane (1977), the requirement that the adverse possessor must
‘intend’ to possess the land to the exclusion of all others to some extent is artificial. For example, some
adverse possessors may appreciate entirely that the land is not theirs and act deliberately to exclude the
world; others may believe honestly that the land is theirs already, and so do not for one moment think
they are excluding the ‘true’ owner; others still may have formulated no intention at all, but simply treat
the land as their own because it is there. In other words, we are not looking here for ‘intention’ in the
traditional legal sense of men’s rea, either objectively or subjectively established. What is required is
evidence that the adverse possessor, for whatever reason, had an intention to possess the land in the
sense of meaning to put it to his or her own use, whether or not he or she also knew that some other
person had a claim or right to the land. Mitchell v Watkinson (2013) for an example of how a possessor
may believe that they have a right to land for many reasons, but still succeed through adverse
possession. But, of course, if there is no evidence of the adverse possessor’s intention, the adverse
possessor cannot succeed by merely stating that they did have such an intention: King v Newcastle
Diocesan Board of Finance [2019] UKUT 176 (LC).

Most importantly, as Pye makes clear, this means that the ‘necessary intent is an intent to possess not to
own and an intention to exclude the paper owner only so far as is reasonably possible’. Lord Browne-
Wilkinson at paragraph 46. Or, in the words of Slade J in Powell: ‘an 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 if he be not
himself the possessor, so far as is reasonably practicable and so far as the processes of the law will
allow’. In other words, the claimant is not required to prove that he or she believed that he or she
owned the land, or wanted to acquire it, but more simply that he or she meant to exclude all others if
possible (Williams v Jones (2003)). This is crucial. It means that the focus is on the intentions of the
claimant, not the landowner. Consequently, it is immaterial whether the claimant was aware that the
landowner had an intention to use the land in the future that was consistent with the actual present use
by the claimant – the landowner’s state of mind is irrelevant. This makes clear, if it were needed, that the
‘implied license’ theory (wherein the claimant is automatically deemed to have been given a license to
use the land simply because the claimant’s actions were not contrary to an intended use by the
landowner) is invalid and incorrect in law. It is, in the language of Lord Browne-Wilkinson, ‘heretical and
wrong’. A point made again in Chambers v Havering LBC (2011), where the Court of Appeal sent the case
back for retrial because, among other things, the trial judge appears to have used the implied license
theory to defeat the claim of the possessor. As much was settled by Moran, and although there may be
occasions for the genuine implication of such license, Lord Browne Wilkinson in Pye also makes it clear
that this will be exceptional. As he says, if the claimant is aware of a special purpose for which the paper
owner uses or intends to use the land and the use made by the adverse possessor does not conflict with
that use, that may provide some support for a finding as a question of fact that the adverse possessor
had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed
by the paper owner. For myself I think there will be few occasions in which such inference could be
properly drawn in cases where the true owner has been physically excluded from the land. But it remains
a possible, if improbable, inference in some cases. A case that comes close is Stadium Capital v St.
Marylebone Property Company plc (2009) – adverse possession denied. However, there may have been
an express license in this case.

Likewise, the intention to possess can still exist even if the claimant would have been prepared to accept
permission to use the land had it been offered,- So, in Lambeth LBC v Blackburn (2001), Blackburn was
able to demonstrate an intention to possess the land – through clear acts of possession – even though
he knew that the land was another’s and would have accepted a permission (a lease) if one had been
offered- or even if he or she would have quitted possession if required (J Alston & Sons Ltd v BOCM Pauls
Ltd (2008)). Such willingness is not inconsistent with a current intention to possess even if any
subsequent actual acceptance of permission (e.g., acceptance of a lease or license) would destroy the
intention. A later admission of the landowner’s title by the claimant is not inconsistent with the claimant
having an intention to possess in the meantime. This was, in fact, the situation in Pye itself, in which
Graham had made it clear that he would have accepted a grazing license from Pye, but as one was not
offered, Graham’s current intention to possess the land until a license was offered (and accepted) was
enough to secure title by adverse possession. So also, Mitchell v Watkinson (2013), where the claimants
had no right to the land between 1974 and 1990, but accepted a license in 1990. By then, however, they
had possessed the land long enough (1974–90) to gain title through adverse possession. Conversely,
however, although the adverse possessor’s mere knowledge of another’s claim to the land is no bar to
adverse possession, The contrary view in Batt v Adams (2001) cannot be good law after Graham, a belief
that the land is currently possessed with the permission of the paper owner is fatal. This was the case in
Clowes Developments v Walters (2005), in which the claimant’s belief – even if mistaken – that the land
was held under a license meant that they simply could not have the relevant intention to possess.
Awareness that the land belongs to another cannot prevent the existence of a current intention to
possess (Blackburn), but an acknowledgment that the land belongs to another will do so. BRB
(Residuary) v Cully (2001). See also Smart v Lambeth LBC (2013), where an occupier failed in his claim
because he had by his conduct accepted a license from the owner. Put simply, you cannot intend to treat
the land as within your ultimate control if you believe that you are permitted to be there by the owner.
In this respect, unilateral permission given by the paper owner to the adverse possessor can be fatal for
the possessor’s claim even if the possessor does not acknowledge or accept the permission. This was the
case in BP Properties Ltd v Buckler (1987), where the paper owner unilaterally and unexpectedly gave
permission to a possessor shortly before the expiry of the limitation period. There was no evidence that
this had been accepted by the adverse possessor, and certainly it had never been requested. The point
seems to be that the giving of such permission, even if unwanted, might be evidence that the adverse
possessor no longer has an intention to possess, even if there is no evidence that the permission was
accepted. This was confirmed by the Privy Council in Smith v Molyneaux (2016), but it was made clear
that this should not be taken as the re-emergence of the ‘implied license’ theory referred to above.
Rather, the giving of unilateral permission, unacknowledged or unaccepted, can lead to a genuine factual
inference that the adverse possessor no longer had the requisite intention. Presumably, therefore, in
order to maintain their adverse possession, the possessor should make it clear that such unwanted
permission is rejected, although this will be difficult if the adverse possessor does not know that
permission has been granted!

Finally, as also demonstrated by Pye and Mitchell, if the alleged adverse possessor once occupied the
land with the permission of the paper owner, but continued in possession after that permission has
ended (e.g., the lease or license has ended), Or is treated as ended, because of the intervention of
statute; Mitchell, noting the effect of paragraph 5(1) of Schedule 1 to the Limitation Act 1980, this can be
sufficient to support a claim of adverse possession if the animus possidendi is shown as arising when the
permissive use ends. It will be appreciated immediately that this intention to possess might be difficult
to prove. Sometimes, of course, the evidence is clear, as where the alleged adverse possessor has
acknowledged the true owner’s title in some way - For example, in Archangel v Lambeth LBC (2000), the
alleged adverse possessor had acknowledged the landowner’s title in written correspondence. See also
Rehman v Benfeld (2006)- or, conversely, if the adverse possessor has placed a sign at the entrance to
the land saying ‘Keep Out: Private Property’. Most cases are, however, somewhere in between and can
be complex if the paper owner argues that they have given permission despite this being unwanted or
unknown by the paper owner. Moran itself establishes that the actions of the adverse possessor in
seeking to assert physical possession of the land may give a strong indication as to whether the
necessary intention exists. This must be correct, for it is wrong to regard the question of intention and of
physical possession as being entirely separate and disconnected. They are part and parcel of the same
inquiry: that is, has the claimant established adverse possession? So, enclosing land by a fence may both
constitute the act of possession and demonstrate the intention to possess (Moran), as might changing
locks to a fat (Blackburn) or grazing animals within an enclosed field (Pye), and the burden of proving the
intention may be lighter in cases in which the true owner has, to the knowledge of the adverse
possessor, abandoned the land (Minchinton). It is clear, then, that unequivocal conduct in relation to acts
of possession on the land is the best evidence of an intention to possess. Such acts may need to be more
overt where the land was once occupied with permission (Mitchell) or where the paper attempts to give
permission, but it will be a question of degree in each case.

Physical possession of the land: