nm1158: yesterday i [0.2] i started to introduce a a a [0.2] a a large number 
of quite difficult concepts and ideas to you [0.4] er the idea of a a tenure [0.
7] a historical system of landown-, landowning in this country and how it 
developed [0.7] the idea [0.2] that flowed from that [0.5] that it was 
impossible for people directly to own land [0.7] so [0.3] lawyers had invented 
[0.2] this idea of the estate [0.4] the abstract concept [0.4] an estate [0.5] 
which defines rights and interests in land [0.5] it is the estate [0.4] that [0.
8] people own [2.0] i went on to look [0.2] at the idea of [0.2] possession [0.
5] being of fundamental [0.2] importance [0.9] in the English law [0.8] and the 
concept of title [1.1] as being [0.5] a legal right [0.7] to possess land [1.7] 
so these [0.2] four concepts [0.4] tenure estate [0.3] possession [0.3] and 
title [1.9] and i then went on to explain [0.4] the doctrine of [0.3] 
relativity of title [2.6] and argued that this had arisen as a result [2.4] of 
the adversarial system of adjudication [0.3] that we have in this country [1.3] 
and in particular the idea [0.4] that when [0.3] people have disputes [1.1] 
about land and they take them to court [1.3] the court is concerned solely with 
det-, determining [0.3] the claims [0.5] as between the parties [2.4] the court 
doesn't go around [0.2] looking for [0.2] the true owner of the land [0.6] it's 
simply concerned with [0.2] resolving the dispute [2.1] that it has before it 
[3.7] and i looked at some ideas [0.2] about [0.5] relativity of title [0.5] in 
that context [0.2] first of all the idea [0.2] that [0.2] possession [0.3] of 
land [0.5] is prima facie evidence of title so if you physically possess land 
[1.2] that gives rise to a presumption that you have a right [1.3] to possess 
the land [1.3] so possession and title are [0.4] are [0.9] linked together in 
that way [1.9] moving on from that [1.9] the idea that no one can acquire [0.6] 
a better title to land [0.4] or to any other form of property [0.5] than the 
person from whom they acquired it [1.0] or to put it the other way round [0.2] 
you can't give [0.6] someone a better title to property [0.2] than [1.7] than 
you yourself have [3.1] this was the principle [0.7] put in in in [0.6] terms 
of its Latin tag [0.4] of nemo dat [0.3] quod non habet [1.8] and then [0.5] a 
final principle under [0.2] this idea of relativity of title [0.3] that when 
you have a comple-, competing [0.6] claims to 
title so when people go to court [2.0] and argue [1.9] that they each have 
better title than the other [1.3] then the first [0.3] time [0.2] prevails so 
the person who can show [0.4] the longest historical claim to title [0.7] is 
going to prevail [1.3] there are some quite complex concepts and ideas here [0.
6] er i'd encourage you [0.3] to read [1.4] whichever textbook you've got with 
i-, in Smith i think it's ch-, it's chapter four in Smith which i-, er 
explication of his concepts er at greater length than i'm able to do [0.4] in 
the context of a lecture so i would encourage you to go away and [0.3] and read 
about these things we'll come back [0.4] to many of these ideas later on in the 
course [0.2] particularly [0.4] er the doctrine of estates [1.9] i then tried 
to to explain or tried to apply these these principles show how they were 
applied [0.2] in the context of a specific case so and tried to bring them to 
life [0.3] with this case from eighteen-sixty-five [0.4] of Asher against 
Whitlock [1.0] we saw [0.2] that [1.0] [1.5] character called Thomas Williamson 
[1.1] had [0.5] taken [0.3] a piece of land he was 
a a squatter and he'd enclosed it in other words he'd [0.3] he'd [0.3] put some 
kind of fence round it [0.8] and claimed it as his own took possession of it [0.
4] from someone who we don't know that person doesn't appear [0.7] er anywhere 
in the proceedings [1.1] er and he then proceeded to make [0.2] a will [0.6] 
leaving [1.6] an interest [1.0] in the land the interest that he'd acquired [0.
3] by taking physical possession [0.5] to his wife for the rest of her life [0.
3] or until she remarried [1.0] then [0.7] after that to his daughter [0.8] the 
chain of events that occurred was that [0.4] Williamson then died so the land 
passes [0.4] er to his wife [0.2] for her for her life for the rest of her life 
[0.3] or until she remarries [0.8] she has what's known as a determinable [0.5] 
life interest [0.9] so the interest for life can be brought [0.4] to an end [0.
5] by the occurrence of some future event [0.6] remarriage [1.2] we found out 
that she [0.2] then remarried a character called Whitlock [0.5] and she 
continued to live in the land with whit-, on the land with Whitlock [1.1] er [2.
8] she then dies [1.4] Mary Williamson the daughter [0.2] 
also dies but before she dies [0.4] she's made [0.5] a will [0.6] leaving [1.1] 
her interest in the land [0.4] and her interest [0.3] is [0.2] a reversionary 
interest in other words she acquires [0.9] a title immediate possession of the 
right to immediate possession of the land [0.6] once her mother has [0.2] has 
died or has remarried [1.4] she's made a will leaving it [0.8] to a Mrs Asher 
[1.4] and we've got a dispute between [1.0] the mother's second husband [0.9] 
Mr Whitlock [1.0] and the daughter's [0.4] heir [0.5] under her will [0.9] Mrs 
Asher 
nm1158: these parties go to court and the [1.9] arguments that they present are 
as follows [0.5] first of all Whitlock [0.4] argues [1.3] that he's in actual 
possession of the land [2.9] that gives rise to a [0.3] presumption [1.2] that 
he has good title to be there [1.0] the fact that he's in possession [0.7] 
implies that he has a right to possession [3.3] secondly he argues [0.2] that 
his title [0.7] is at least as good [0.4] as Williamson's [2.2] Thomas 
Williamson's [0.8] and better [0.6] than Mrs Asher's [1.0] because [0.3] he and 
Williamson are both squatters [1.8] neither of them had any right to be on the 
land [2.3] so 
the court shouldn't decide as between them [3.6] on the basis that one has some 
kind of better claim than the other [0.3] they should simply look at the fact 
[1.0] that [0.8] he is in possession in these circumstances [1.2] and then 
there's [0.5] this further argument [1.1] that [1.1] because both [0.2] he and 
and Thomas Williamson are squatters [0.2] that there's some [0.3] other true 
owner out there [0.9] and therefore the court shouldn't decide the case in 
favour of Mrs Asher [0.7] because of the existence of [0.7] we'll call this 
character X [0.2] we don't know who he is [0.8] she is [5.8] the arguments that 
Asher puts forward [0.9] are that she has derived her title [0.5] from [0.3] 
Thomas Williamson [2.2] Thomas Williamson passed it to Lucy Williamson passed 
it to Mary Williamson [0.5] passed it [0.5] to Mrs Asher [1.9] [2.2] and she 
claims that Williamson's title [0.3] is better than Whitlock's because although 
admittedly they're both squatters [1.0] Williamson was squatting first [1.2] so 
[0.2] we've got the idea [0.3] principle of the principle of the first 
in time [0.2] prevails in these circumstances [2.2] and [0.2] the third 
argument that she makes [1.6] in rebuttal of the of the the third point made by 
Whitlock [1.6] is that the identity of X is irrelevant [0.3] X isn't a party [0.
2] to the proceedings before the court [1.0] so we see [0.4] an illustration [0.
6] of [0.4] that principle [0.7] i mentioned at the earlier at the outset in 
connection with the concept of relativity of title [0.3] that when you get 
cases before the courts [0.5] the courts are only interested in the dispute 
between the parties they don't embark on this [0.4] search for X [0.4] and the 
court upholds er Asher's argument [0.9] they're not interested in the identity 
of X [0.7] as between Williamson [0.7] Thomas Williamson [0.9] and Mr Whitlock 
[0.5] Thomas Williamson's title is better [0.2] because he was there first [2.
4] and therefore [0.4] although Whitlock is in actual possession of the land [1.
7] that possession can be overturned [0.3] by evidence of a better title [0.8] 
and Mrs Asher can show [0.2] a better title [0.2] because she's direc-, derived 
it directly [0.7] by this chain of [0.7] er er er 
of [0.2] er [1.3] gifts by by means of the will [1.3] from Thomas Williamson 
nm1158: we've got a demonstration [0.5] of [1.9] quite a number of the 
principles that i [0.2] i introduced yesterday [0.4] going on from this case [4.
4] this [0.4] method [0.3] of [0.5] dealing with disputes about land [1.2] is 
[0.5] efficient [0.3] in terms of [0.4] adjudication [1.0] and i say that 
because [2.2] another approach [0.4] that the court could have adopted [0.2] 
would have been to embark on a search for X [0.3] in these circumstances and to 
say well [0.3] neither Asher nor Whitlock have [0.9] good claim here [0.6] X 
owns the land [5.7] but how are they supposed to go about [2.1] that type of 
enquiry [0.7] they don't have the evidence before them [1.0] they only have [1.
4] the actual parties to the dispute [0.6] there in the courtroom [2.7] and 
their evidence is the only evidence [0.2] that can be put [0.8] to the test [2.
6] so it would be [0.4] inefficient [0.7] to embark on [0.6] this search for [0.
7] the elusive character X in these proceedings [0.4] the way they actually 
resolve [1.1] the problem the dispute before them [1.5] 
is sensible in terms of [0.8] judicial decision making [2.4] but it raises [0.
7] a problem [1.7] if you [1.8] consider Asher's position now [0.3] Asher's 
title has been [0.5] confirmed as against Whitlock by the court [2.3] but what 
happens if Asher wants to sell [0.8] the land [0.7] to someone else [3.0] how 
are we [0.3] to say [0.6] that this [0.4] character [0.3] X [0.4] question mark 
[0.5] is not going to reappear [0.5] at some point [0.4] in the future [2.7] 
and say well actually [1.0] i have a better title than Williamson [1.8] and as 
[0.3] you Asher can have no better title than Williamson did [2.2] i therefore 
[0.2] have better title [0.7] better claim to the to a right to possession [0.
5] than you do [2.0] [0.8] so while [1.0] the approach that that the court 
adopts in Asher and Whitlock [0.3] is efficient [0.3] in terms of [0.3] 
judicial decision making [0.6] it's potentially [0.4] inefficient or 
ineffective [2.2] in terms of looking at the way that markets [0.4] for land 
might work [0.3] who's going to buy the land from Asher [0.7] if there is a 
risk [0.2] that at some point in the future [0.3] they may 
be dispossessed [1.2] and this is a significant problem [0.3] with the doctrine 
of relativity of title [1.1] it creates [0.3] uncertainty [0.7] as to who it is 
that has powers [2.0] to deal with and dispose [0.7] of interests [0.3] in land 
[1.1] and makes it [0.5] potentially very expensive [0.3] for anyone [0.4] who 
[0.3] is thinking of buying a piece of land [2.4] to carry out investigations 
to find out [0.8] whether they've covered [0.3] all the bases as it were [0.4] 
as far as potential [0.4] owners of that land are concerned 
nm1158: the solution [0.2] to this problem [2.3] is [7.1] to introduce a system 
[2.1] whereby [0.8] after [0.6] a certain period of time [1.5] X [0.5] or 
question mark's [0.3] ability [0.6] to step forward and say [0.4] i've got a 
better claim [0.7] than you have [2.5] that ability to step forward and make 
that claim [0.2] comes to an end [2.8] okay to say [0.3] that after [0.4] the 
passage of a particular period of time [2.7] question mark or X is [0.2] 
debarred in some way [0.7] from [0.9] stepping up [0.9] and saying [0.2] well 
i've got a better right than you 
nm1158: 
er there are two [0.3] principal methods if you look at [0.4] at er [0.6] 
continental system and the position in in Scotland [3.5] they favour [0.2] er a 
technique that's known as prescription [0.9] and we find examples of 
prescription in English law and we'll talk about them later in the course in 
the context [0.4] of easement [2.3] er what prescription does is to say [1.4] 
that after a certain period of time [0.8] we assume [0.7] that the person who 
[0.5] is [1.0] er a squatter or who's in in what we call adverse possession [0.
3] of the land [0.7] was actually granted some kind of right to be there [1.0] 
so we're making it's an assumption [0.4] of some sort of grant of a right [1.1] 
by [0.5] parties unknown [1.6] the other approach and the approach that English 
law adopts [0.2] in this context [0.6] as far as [1.2] title to the land is 
concerned [1.5] is the technique known as limitation [2.8] er this is a 
procedural [0.5] solution to the problem [0.5] in that [0.3] it places a 
restriction [1.0] on the ability [2.2] of a person to go to court [1.2] and 
claim [0.8] that their rights [0.2] are superior [1.9] to those of a person in 
adverse possession 
or those of a squatter [0.3] after [0.3] the passage [0.5] of [0.2] a period of 
[0.3] twelve years [3.6] [5.4] now [3.6] the idea that someone can acquire 
rights in the way that Williamson has done [0.9] by [1.1] effectively [0.3] 
taking land enclosing it and [0.2] and claiming it as his own [0.6] is [0.2] 
controversial [1.9] you'll all be familiar with the [0.2] idea that [2.3] 
squatting is a controversial practice [2.1] in addition to the argument that 
i've i've just made to you [0.4] that [0.3] a system of [0.2] of adverse 
possession of limitation of claims [1.6] er is is essential to a workable 
system of land transfer [0.2] you can make various other arguments in favour of 
adverse possession [1.2] i've put it to you so far in terms of looking at the 
Asher and Whitlock case [0.8] that [1.4] it's necessary [0.7] to have some kind 
of of [1.1] er [0.2] scheme for extinguishing [0.5] old claims [0.7] in order 
to [0.3] make a market [0.4] for land [0.5] transfer to work [1.1] there are 
other arguments as well [1.1] er closely linked to that is the idea [0.4] that 
[1.8] it's desirable to eliminate [0.4] stale or old claims [1.1] and again if 
we go back historically and look at this [0.4] in the times before [0.9] 
everything was recorded in writing [1.9] then the difficulties of actually 
proving [1.0] things in court based on [0.6] people's memory of past events [1.
1] becomes more and more difficult [0.2] as time passes [2.7] witnesses [0.8] 
die disappear [0.3] their memory becomes less reliable over time [0.8] nowadays 
it's arguable that it's it's less [0.4] of a concern because [0.5] most of the 
types of evidence that we're looking at [0.5] in [0.4] cases concerning [0.2] 
land [0.4] is actually written down in some form so we've got documentary 
evidence [0.8] but this basic idea that [0.3] it's desirable to eliminate old 
or stale claims [2.9] remains [1.7] er [0.5] and the third argument that we can 
make in favour of adverse possession [0.8] system of extinguishing old claims 
[0.8] is that it provides incentives for efficient land use [1.9] and this is 
er [1.9] you can you can you can you you'd be familiar with the popular term [0.
2] use it or lose it [1.1] this is really a an argument along those lines [0.4] 
that if people don't actually make use of their land and 
don't [0.8] force their claims [1.0] in relation to land [0.4] then [0.6] it's 
efficient to allow other people [0.6] to come along [0.6] and make use of it 
for [0.4] some beneficial purpose [0.9] er [0.3] and to give you give you an 
example of the way that that that [1.2] this kind of [1.1] issue arises [1.0] 
i've got some some data here on [0.7] er empty dwellings [1.0] in five [0.5] 
local authority areas [0.5] from [0.4] a [0.3] survey carried out in the 
nineteen-eighties by the Department of Environment [1.2] they found that [0.7] 
in certain areas of the country [0.3] notably in in the London borough of 
Kensington and Chelsea [0.6] a very high proportion [0.7] of the housing stock 
[1.4] is actually empty [0.6] at any given point in time [0.4] so [0.5] we're 
talking about total housing stock [0.6] voids [0.6] are [0.3] empty [0.2] empty 
dwellings empty properties [0.5] and we see that in the case of Kensington and 
Chelsea [0.5] twelve-point-three per cent [1.1] of all the dwellings [0.7] in 
that borough [0.7] were empty were not used [0.9] at the same time [1.4] as [2.
6] London faced [1.0] if you like a a housing crisis a homelessness crisis [0.
8] so in those circumstances you can argue [0.8] er make a 
moral argument [1.2] that [1.4] adverse possession or squatting is justified in 
these circumstances [6.0] [5.3] the government of the day took a took a 
different [0.5] view [1.0] er [1.4] and in nineteen-ninety-one the Home Office 
issued a consultative [0.2] document on squatting [4.5] which [1.2] expounds 
the premise that there are no [0.2] valid arguments [0.7] in defence of 
squatting [0.8] and that consultative document [0.8] formed the basis for the 
enactment [0.4] of [0.8] legislation in [0.2] the Criminal Justice and Public 
Order Act [0.6] nineteen-ninety-four [0.8] which [1.1] er introduced [0.7] er 
new criminal [0.3] penalties and new procedures [1.0] against [1.2] squatters 
nm1158: even so [1.2] the basic principle [0.7] that you can acquire rights [1.
8] by adverse possession [1.8] is not [0.6] overturned or [0.3] affected by the 
introduction of those those new criminal remedies [2.9] and got two cases in 
the materials [1.5] which [1.1] illustrate this issue [1.0] of Buckinghamshire 
County Council against 
Moran [0.9] and Hyde against Pearce 
nm1158: i think the best way of showing [0.7] how adverse possession [0.9] 
works today in practice is by [0.3] working through the Buckinghamshire County 
Council and Moran case [1.1] er what we've got here is a dispute between a 
local authority [0.8] and [0.3] a landowner [1.3] over [1.5] what i've [0.6] 
called here a disputed [0.9] plot of land [2.1] historically what's happened is 
that in nineteen-fifty-five [1.8] Buckinghamshire County Council [0.6] have 
acquired [0.9] this [0.5] disputed [0.8] plot of land for the purpose [0.5] of 
[0.5] a road [0.5] development they're going to [0.4] to e-, [0.2] extend we 
don't know exactly the [0.2] extent that they're going to extend or widen the 
road or [0.4] or run a new road across [0.4] this disputed plot [1.2] this is 
in nineteen-fifty-five [1.3] but the land lies idle [0.2] nothing [0.4] happens 
[1.9] in terms of the use of the land [0.7] and [0.5] twelve years later [1.3] 
the defendant's predecessor in title [0.8] and mora-, the people who owned the 
land before [0.5] Moran [1.9] began [0.7] to cultivate [0.2] this area of land 
[0.4] it seems that there was no 
clear [0.7] boundary [0.5] between the defendant's land [0.4] and this disputed 
plot [5.1] they began to cultivate it in the sense of [0.7] maintaining it if 
you like as a bit of extra garden [6.4] in nineteen-seventy-one [3.0] the 
defendant's predecessor in title transferred the land [0.4] to him [0.8] to 
Moran [0.6] and when they did so [0.8] they made a declaration [1.0] concerning 
their use of the land [0.5] the disputed plot [1.5] in other words when [1.4] 
the land's conveyed [0.3] to them [1.5] they [1.3] complete a statement [2.0] 
showing what they've used the land for a written statement indicating what 
they've land used the land for [0.2] how long they've used it and [0.8] er [1.
1] what they've done to it [1.5] and that declaration [1.1] forms [1.2] the 
basis if you like for a claim that since [0.2] nineteen-sixty-ni sixty-seven [1.
0] this plot [0.3] has [0.5] been [0.7] used by [0.3] people occupying [1.1] 
the adjacent land [2.0] er [1.2] when [0.3] Moran acquired the land [0.7] he [0.
5] changes the locks on this gate there's a gate [2.5] whereby [0.2] it's 
possible to get access [0.4] from the roadway [0.6] onto the disputed [0.5] 
plot of land [0.9] but [0.2] at that point Moran 
takes it upon himself [0.5] to put a new lock and chain on that gate [2.2] 
presumably because [0.6] it would be possible for someone getting access to 
this plot of land could get access to his land as well i've said that there's 
no [0.3] clear boundary between them [3.3] five years later [0.5] there's some 
correspondence between Moran [0.5] and [0.4] the county council [2.0] er [1.4] 
concerning [0.6] the rights of [1.1] Moran to [0.2] continue using the land [0.
6] and Buckinghamshire County Council's claim [1.0] in relation or their claims 
in relation [0.2] to their ownership [0.5] they continue [0.2] obviously to be 
[0.4] the paper [0.2] title owners of this piece of land [0.9] and Moran at 
that point asserts that it's always been his firm understanding [0.5] that the 
land should be kept [2.1] by [0.3] him or whoever owns [0.4] his house [0.5] 
until the proposed [0.8] roadworks take place [3.6] the county council at that 
point [0.9] deny [0.8] that Moran has any rights at all [0.4] in relation to 
the land this is in nineteen-seventy-six and they don't take any action [0.7] 
at that 
point [1.2] in fact nothing happens [0.6] for another nine years [1.3] until 
nineteen-eighty-five [1.4] when [0.7] the county council [0.6] bring [0.2] an 
action for possession [0.9] against [0.4] Moran [3.2] [1.3] the question before 
the court is that [0.2] in these circumstances given this chain of events [0.7] 
can we say [0.3] that Moran has acquired [0.4] a right [1.1] as against the 
county council [1.0] to [0.3] the title of the disputed plot [0.7] by means of 
adverse [0.5] possession 
nm1158: the legislation [2.7] that deals [0.6] with the idea of limitation [2.
2] is the Limitation Act nineteen-eighty the current version [2.0] and i've 
reproduced the key sections [0.9] on [1.3] the flip side of the handout [0.7] 
the top of the page the second [1.1] side [1.7] sections fifteen [0.3] 
seventeen [0.5] and schedule one [4.8] section fifteen basically provides that 
[0.4] a right to recover [0.7] possession of land [0.4] Buckinghamshire County 
Council's right to recover [0.2] possession of land in this case [0.2] expires 
twelve years [0.5] from the date [2.6] on which that right to recover accrues 
[5.0] so [1.0] as soon as Buckinghamshire County Council [1.9] have a right [0.
2] to recover that land [0.3] the 
twelve year period starts to run [1.2] and the twelve year period would start 
to run [0.3] in this case [1.1] from [0.3] the point at which [2.8] Moran or 
his predecessors in title [3.2] undertook actions [0.6] which [0.7] effectively 
[0.5] er [0.3] dispossess [1.3] the county council [0.2] of the land 
nm1158: er [4.4] the Limitation Act nineteen-eighty doesn't simply [0.7] 
doesn't stop [1.6] at barring the right to recover possession [0.8] it also 
goes on [0.2] in section seventeen [0.9] to say [0.6] that after that [0.2] 
time limit [0.2] that twelve year time limit [0.4] on the right to recover 
possession [0.4] has expired [2.4] the paper [0.2] title owner's [1.9] title is 
extinguished [0.8] but it's not simply [0.6] a question of [1.0] barring the 
right to recover [1.0] the act [0.2] now [0.4] where historically this this 
wasn't the case [0.4] the act now also said [0.2] and this is really for the [0.
3] for for the sake of clarification [1.3] that [1.3] in these circumstances [0.
3] if someone can show that they've acquired title [0.4] by adverse possession 
[0.7] then the person from whom they have taken possession [1.8] not only 
doesn't have a right to recover [1.1] their rights 
are actually extinguished [0.4] are brought to [0.4] a complete close 
nm1158: er [0.4] the point about schedule one [0.3] goes back if you like [0.4] 
to this [0.4] issue of when the right [0.7] to recover accrues [0.4] and it 
specifies [1.1] that [0.3] the right of action accrues [0.5] on the date [0.3] 
at which [1.4] either [1.1] the person in adverse possession dispossesses [0.8] 
the paper title owner [0.6] or [0.2] the alternative scenario [0.3] is that the 
paper title owner discontinues their use of land [0.2] and somebody else [0.9] 
simply takes it over [0.7] the distinction between is a is really a fine one 
and is of very little [0.4] significance in practice 
nm1158: that right of action only starts to run [1.0] if [0.5] the possession 
of the other party [0.3] is [0.3] adverse so we have to explore [0.4] what we 
mean [0.4] by [0.4] adversity [0.9] in this context [1.2] and if you go [1.0] 
in the materials [1.3] to page [0.3] A-fifteen [28.0] you'll see that in order 
to establish at the top of the page the judge [0.5] er [1.2] gives er a 
quotation in the case 
of Treloar against [0.5] Nute [0.5] he then summarizes [0.3] what the 
requirements [0.2] for someone who's claiming adverse possession [0.6] are [1.
3] he says first of all they must show [0.4] they have factual possession of 
the land [4.7] secondly they must show [0.3] that they have [0.9] what's called 
[1.8] an animus [0.4] possidendi [1.1] possidendi [3.7] the point about this is 
that it's not sufficient [0.7] simply [1.1] to physically take possession [0.6] 
you also have to show [0.2] an intention [0.4] to possess [2.2] animus 
possidendi [0.2] translated means [0.5] simply a mind [0.6] to possess [2.8] so 
in addition to [0.5] physical factual elements [0.7] there is [0.2] a 
psychological [0.7] focal dimension [0.6] to [0.4] adverse possession [0.4] as 
well [2.1] thirdly [0.2] you have to show [0.4] adversity [3.4] and the point 
here is that possession can only be adverse [3.1] if it is not permitted [1.0] 
or not licensed [2.2] if you've got [0.2] the permission to occupy land [1.7] 
then [2.5] you can't be said to be [1.6] in adverse possession [0.5] vis-à-vis 
[0.5] the paper owner [3.5] and the fourth 
requirement [0.5] is this [0.2] twelve year period [0.4] established by [0.6] 
the statute [4.5] so these are the four key elements [1.6] in a claim [0.2] for 
adverse possession [0.6] factual possession [0.3] intention to possess [0.9] 
showing that [1.8] that possession is adverse [0.6] vis-à-vis [0.6] the owner 
of the paper title [1.0] and [0.8] that these things have been present for a 
period of twelve years 
nm1158: the problem that arises in the Moran case [1.1] is [2.5] quite a common 
one [0.6] in the sense that [0.7] land is often [0.6] left [1.0] idle [0.2] 
pending some [0.7] future development [2.6] and the problem [0.2] that the 
judge confronts [0.2] first of all in this case [0.4] is that there's a series 
of [0.2] of of [0.9] er authority and precedence from the nineteen-seventies [0.
3] suggesting that in this particular type of case [0.8] where you're dealing 
with [2.1] land [0.9] for which there is some identifiable future use [2.4] 
then the courts can [0.4] imply [0.9] permission [3.2] where [0.3] the use 
that's made [0.4] by the squatter [5.1] doesn't substantially interfere with 
those [0.2] future plans [5.6] okay [0.9] and this 
is referred to in the judgement as the implied [0.3] licence theory [3.9] given 
[0.4] the controversial nature of of squatting that i er [0.2] identified [0.5] 
earlier [1.5] judges are somewhat have been historically somewhat reluctant [0.
7] to uphold [1.0] squatters' claims [0.4] against [1.5] the owners of the 
paper title [0.3] even where those four basic elements that i outlined [0.6] a 
moment ago seemed to be satisfied [1.6] so [0.4] as i say during the nineteen-
seventies [1.1] the courts developed this notion of [0.7] an implied [0.2] 
licence [0.4] theory [2.4] whereby adversity [0.4] claim that [0.4] possession 
was adverse [0.4] would be negated [0.8] in circumstances where [0.4] there was 
some [0.6] identifiable [0.6] use for the land that was going to take effect [0.
2] in the future [0.3] so precisely the type of er situation [0.3] that we have 
in the Buckinghamshire County Council and Moran case itself [0.4] where the 
County Council is proposing to use [0.4] the disputed dot-, plot of land [0.2] 
at some future point [1.2] for [0.2] a road [0.3] development project [1.8] the 
way in which the judge [0.2] deals with this 
is actually to look to the statute [0.3] to the Limitation Act [10.0] and [0.5] 
the argument is that [5.2] the act itself has negated [0.4] this and if you 
look at the top of page [0.3] A-sixteen in the materials [0.4] you'll see [0.2] 
a quotation from [0.2] schedule one [0.4] paragraph eight schedule one [0.3] of 
the nineteen-eighty act [3.4] where it says [0.2] for the purpose of 
determining whether a person occupying any land [0.3] is in adverse possession 
[1.3] it shall not be assumed by implication of law [1.3] of this implied 
licence theor-, [0.2] theory [0.4] that his occupation is by permission [2.7] 
so the act clearly disposes [0.5] of this implied licence theory [0.9] er er er 
er [0.3] if you like a [0.3] a [1.5] a judicial [0.2] fiction [0.9] that 
permission had been granted [0.7] in circumstances where [2.0] there was no 
real interference [1.1] with the paper title [1.2] er [0.2] pa-, with the owner 
of the paper titled [0.8] future intended use 
nm1158: the defence then tried to run a second argument [0.9] based on [0.4] 
somewhat older authority [5.1] under what they've called the special rule or 
the special purpose rule [3.1] where [0.8] it's argued that [0.2] if you can 
actually identify not just [0.3] some intended future use but a specific [0.2] 
purpose [1.0] for which land has been retained [1.0] so again in this case a 
specific purpose of using the land for [0.4] for for [0.3] a road building 
project [1.5] and there's no inconsistency [1.1] between [2.4] what the 
defendant is doing [0.2] the squatter is doing [0.6] and that future purpose [3.
1] then [1.3] again [1.4] the result will be no [0.2] adversity [0.7] the 
special purpose rule and the implied licence theory [0.4] are [0.4] obviously 
very similar [1.4] they're claiming [0.2] different [1.0] if you like bases [0.
2] find different bases in authority [1.1] and the judge [2.2] i think quite 
rightly concludes that [0.2] if the implied licence theory fails [0.8] then the 
special purpose [0.2] rule [0.2] must fail [0.2] as well [0.9] though he 
rejects [0.7] these arguments [1.6] about [0.4] implied [0.3] permission [0.7] 
if you actually look [0.2] at the facts of the case [2.0] it would be [0.6] i 
think quite wrong to come to the conclusion [0.4] that the county council has 
im-, [0.2] has [0.8] has er in any way given permission to him to do what he 
wanted to do [0.3] there is [0.4] correspondence in which [0.4] they expressly 
[0.3] 
deny [0.7] his rights 
nm1158: having established then that the possession is adverse [0.4] and 
disposed of these arguments about [0.6] implied licences and and special 
purposes [1.3] the judge goes on to consider [2.1] the positive requirements 
what Moran must do to show [0.5] that he's acquired [0.4] rights by means of 
adverse possession [2.6] and the first [0.2] heading that he deals with [0.3] 
is [0.2] factual possession [1.3] here we're concerned about the question of 
whether [0.7] what [0.4] the squatter [0.6] did [1.1] amounted to exercising 
sufficient [0.7] control [0.9] physical control [0.7] over the plot of land [0.
9] and the evidence in this case [0.6] is [1.5] [0.5] first of all [0.7] that 
Moran has achieved [0.5] complete [0.2] enclosure [0.5] of the plot [3.3] if we 
go back to [2.9] the diagram [11.0] there's [0.4] a boundary here [0.5] and a 
boundary here and it backs onto a [0.4] tennis club [0.4] there's a 
boundary here there's a gate [0.4] that's been locked by the defendant [0.5] 
and the only [0.4] means of access to the disputed plot [0.6] is [0.7] through 
Moran's land [0.9] so he's achieved [1.2] complete [1.2] enclosure [0.5] in 
that sense [3.2] he's also put [0.4] a lock [0.4] and chain [0.3] on this gate 
[9.5] and thirdly he's taken possession [0.5] by [2.1] act of maintenance [0.9] 
he's cultivated the plot he's [0.8] mowed the grass [0.7] put plants in it [0.
6] treated it as part of his garden [2.5] in other words he's dealt with the 
disputed plot [0.7] in the same way [0.9] effectively as you would expect [0.9] 
a person who owned a piece of land [1.0] to deal with their own [0.5] land [6.
0] so [0.3] the court concludes that Moran [0.5] by means of these acts [0.3] 
that he's carried out [0.6] predecessor in title carried out [0.6] has 
established [0.2] factual possession [0.5] of the plot of land 
nm1158: the next thing he has to establish [0.8] is the necessary [0.4] animus 
the necessary intention [3.0] can we say [0.9] that [0.7] Moran 
intended [1.7] as the lawyers put it [0.5] to exclude the world at large [2.6] 
to prevent [0.2] other people from getting access to the land [0.6] including 
[0.8] the county council itself [1.8] [1.0] there was no evidence that the 
county council had ever physically tried to get access [0.4] to the land during 
this period [0.6] but if they'd wanted to do so [0.5] they wouldn't have been 
able to [1.3] they would have had to go and ask Moran for a key to unlock [0.7] 
the gate [1.8] suppose they could have er [1.6] could have knocked the gate 
down or something of that kind [3.3] but the fact that he had [0.4] enclosed 
the land [0.9] put this lock and chain in place [1.8] was itself evidence of an 
intention to exclude [1.6] and the argument here basically is that if you [0.5] 
chain up a gate [2.7] and lock it [2.4] then [0.8] by means of that action 
you've got [0.4] prima facie evidence of intention to exclude 
nm1158: part of the problem though in this case [4.5] is [0.4] the evidence 
about [2.7] whether or not Moran intended [0.6] to exclude [0.5] forever [1.5] 
the county 
council [0.7] or [0.4] just until the occurrence of [1.0] a future event [0.8] 
the correspondence i referred to earlier [2.7] he's actually said [0.3] it's 
always been my firm understanding that the land should be kept [1.1] by him [1.
2] until the proposed road diversion [1.0] so he seems to be recognizing he 
seems to have recognized in that correspondence [0.5] that [0.6] his rights in 
relation to the disputed plot of land [0.9] are limited [0.3] in time [0.6] 
there may come [0.4] a future point in time [0.7] of which [0.3] the council 
wants to go ahead with the road diversion [3.8] and at that point [0.7] his 
rights will presumably come to an end [1.4] so the question that the court is 
confronted with is what does Moran actually need to show does he need to en-, 
show [0.3] an intention [0.8] to [0.5] possess the land [1.2] whatever happens 
in the future [0.3] in all future circumstances [0.6] in which case he's in 
difficulty [0.9] because he's admitted in the correspondence [0.8] that [0.5] 
his rights are limited [2.1] potentially by [2.0] what the county council is 
proposing at a future point to do with the land [0.3] or does 
he simply need to show [1.3] that his intention is to possess for the time 
being [1.2] and then once the twelve years have accrued [2.1] he gets the right 
to adverse possession [0.3] 'cause his rights are [0.3] are are effectively 
confirmed [0.4] at that point [2.1] and the court [0.2] comes to the conclusion 
that effectively you deal with these things on a [0.2] on a day by day basis [0.
4] all that he is required to show [0.4] is that he intends to possess [0.3] 
for the time being [2.9] and once [1.5] that's coupled with factual possession 
[0.5] over the twelve year period [1.6] then that is sufficient [3.8] to make 
his [0.5] claim to adverse possession [0.8] operative 
nm1158: so here we've got er a a concrete example of how [0.2] adverse 
possession actually works in practice [0.4] and someone acquires [0.2] rights 
[0.6] as a result of [0.4] of that adverse possession [3.0] i think it's 
important to say [0.4] that it's actually [1.3] quite rare in practice [0.4] 
for people [1.3] to [0.8] have their claims [0.5] sustained by the court [0.3] 
in other words [0.2] these tests [0.5] of factual 
possession intention to possess [0.3] a twelve year [0.2] period and adversity 
[0.5] are actually quite difficult to maintain in practice [0.9] one reason is 
that [1.9] Buckinghamshire County Council here are are clearly being [0.2] 
being negligent with regard to to their use of land they could have [0.6] 
effectively [0.6] brought the issue to a head [0.9] much earlier [0.7] by 
bringing a claim to possession within the twelve year period [0.4] or [0.7] 
just by giving [0.2] Moran permission to continue using the land until [0.4] er 
they [0.3] needed it [0.5] that would have brought [0.6] the adversity to an 
end if they had actually written to him [0.3] er and said well [0.3] either [0.
5] er [0.5] er [0.7] we'll either take you to court or we'll give you [0.5] er 
er permission to continue to occupy the land [0.7] er until we need it [0.9] 
either of those actions or those interventions would have been sufficient [0.9] 
to bring [0.8] Moran's claims to an end [0.2] so [0.4] it's quite rare for 
these things to run on for this length of time [1.5] where it most commonly 
happens [0.3] is in relation to [0.2] disputes over or [0.5] er uncertainties 
if you like with 
regard to the boundaries of land and you can see this as a [0.3] as a kind of 
extended example of that [0.3] the area of land is is probably in this case is 
probably larger [0.3] than those in most cases but where [0.2] er er a fence 
has [0.5] been put up it's [0.3] two or three metres to [0.6] the left or the 
right of where it should be [0.6] then and [0.4] that situation is allowed to 
rest and to continue [0.4] that [0.4] is the most common type of example [0.3] 
in which [0.2] you actually find [0.4] adverse possession [0.3] working [0.5] 
today [1.3] er [0.4] the [0.2] other example that i've got in the case [0.2] in 
in in in the cases in the in the materials [0.2] of Hyde and Pearce [0.6] shows 
an example of [0.2] of a claim to adverse possession [0.5] er not working [0.9] 
despite [2.0] what [0.9] seems to be [1.1] fairly outrageous behaviour [0.4] on 
the part [0.2] of the person [0.4] who comes to own the land 
nm1158: er [4.8] i'm going to have to [0.2] bring it to an end today to allow 
you to have your [0.3] staff-student liaison committee elections [0.5] but i'll 
talk a bit about Hyde and Pearce at the beginning of next time