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