Adverse Possession and the Dispute Over Giles

The first issue is whether Giles Brown can stop GOSH from taking back the five acres he currently occupies. The rule that will be applied in this case is that of adverse possession. Based on this rule, Giles Brown may claim the 5 acre field that he currently occupies. As the 5 acre field has belonged to the Frobisher family as part of the Witchhazel Hall Estate in for many generations, it may be assumed that the estate is unregistered land. This would mean that on the purchase by the new buyer of the land, that is, Gosh, the land would be subject to first registration. The concept of adverse possession and its application in this scenario is explained in detail below.

Adverse possession a method that allows a claimant to acquire legal estate in land through the long use of such land. Where adverse possession is claimed, the claims to the legal estate of the person in possession override those of the the actual owner of the land. The basis of the adverse possession rule is the relativity of the concept of title in the English law and the significance of possession for acquisition of title. In other words, when there is a dispute between two parties, with relation to a legal estate, the court in effect decides the matter on the basis on the claim to possession and usually the matter is decided in favour of the person whose claim to possession is stronger.

From the brief discussion above, it may be summarised that adverse possession is used to describe right to possession by someone other than the land owner, where the use of the land for a period of time creates the right in favour of the user as against the actual owner of the land. The application of the rule may vary in some respects between registered and unregistered land. With respect to unregistered land, the claimant to adverse possession may make an application to the Land Registry for registration after 12 years of occupation of the land. With regard to registered land, such an application can be made after 10 years. In order to acquire possessory title based on adverse possession, the claimant has to prove to the Land Registry the continued and open occupation of the land to the exclusion of others for at least 12 years.

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The necessary requirements for the claimant to prove their case for possessory title under adverse possession were enumerated by the court in Buckinghamshire cc v Moran, and were recently reiterated in JA Pye (Oxford) Ltd v Graham. According to the principles laid down in these two cases, the following have to be proved by any claimant to a possessory title under adverse possession:

1. Claimant’s factual possession of the land;
2. Claimant’s intention to possess the land; and
3. Claimant’s factual possession and intention to possess exercised over the
required period for adverse possession.

The above mentioned three points may be discussed at some length here. Factual possession is the physical control over the land exercised by the claimant to the possessory title. In the present case, Giles Brown took care of the land, kept travellers off the land, and cleared any fly- tipping in the manner that an owner of the property would have done. The period of factual possession begins from the date when the claimant first took possession; and this is the date from which the paper title owner may be considered as dispossessed. Another important issue is that the factual possession for unbroken period of time. This means that there should be no period in between where the claimant did not exercise possession over the land. In this case scenario, the 5-acre field has been used by Giles Brown for grazing land for the last 25 years. Prior to Giles Brown, his father used the same land for the same purpose for approximately 40 years and before him, his father. Therefore, the land has been used by Giles Brown’s family for a significantly long time for grazing. This is an unbroken period of time for which the land has been used by Giles Brown and his family.

The other elements of factual possession that must be proved include intention of the claimant to exclude all others from use or possession including that of the title owner; open exercise of possession in a manner adversarial to the title owner. In Lambeth LBC v Blackburn, the court held that the action of the squatter in changing the locks of the property, implied an indication to exclude others, including the title owner from use of the property. In JA Pye Ltd v Graham, the court held that the squatter should demonstrate both an intention to possess as well as to own. In Powell v McFarlane it was held that factual possession is accepted where the claimant has been dealing with the land as an owner would. An important point of consideration in such as case would be the nature of the land in question and the manner in which land of such nature is commonly used. In this case, the land is question is a field, which is commonly used for grazing and Giles Brown has used this land for precisely this purpose for 25 years to the exclusion of the Frobisher family. Now, GOSH intends to create an 18-hole golf course, which will include this land. As Giles Brown has used this land to the exclusion of everyone else, including the Frobisher family, his claim to possessory title under adverse possession is strong. It does not signify that Giles Brown pays no rent and there is no written agreement between him and the Frobisher family. This is unregistered land and the use of the same for a long and continued period of time to the exclusion of everyone else, creates a claim for possessory title. Giles Brown has taken care of the land, including by keeping travellers off the land, and clearing any fly- tipping. This shows intention to exclude others and use as an owner. Therefore, Giles has a strong case for possessory title.

Giles can protect his interest at the time of the first registration of the land by raising caution at the time of registration under section 15(1)(a) of the Land Registration Act 2002; or if already registered, he can apply for alteration under Schedule 4, paragraph 5 of the Land Registration Act 2002 and for first registration of title.

The issue is whether the residents who have been shooting, trapping and fishing on the estate have any rights, or whether they are poachers. The concept that is applicable to this scenario is that of profit a prendre acquired through prescription. Prescription is created through long user wherein a person claiming a right of prescription can claim that long and continuous use has led to the creation of a legal right to continued use.

A profit a prendre is a right to take something from the land belonging to another person. The thing may be something from the land, such as, sand, or it may be something that is growing on the land, such as, plants, or wild creatures found on the land. Profits a prendre concern the natural natural products that can be taken from someone else’s land. Such a profit a prendre may relate to wildlife killed on the land through shooting, trapping or fishing. The thing that is taken from the land must be capable of ownership. Profits a prendre may be appurtenant or gross. A profit a prendre appurtenant is attached to a particular piece of land. A profit a prendre in gross is not attached to the ownership of any dominant piece of land. An Appurtenant Profit is used by the owner of the adjacent property only and it does not exist in its own right and cannot be annexed to the land owership. On the hand, a Profit in Gross is an interest in land that does not relate to the ownership of a property that is adjacent to the servient land and it is a right that exists in its own right and independently of the land. Prescription can be created by the use of common law, under the doctrine of lost modern grant, and under the Prescription Act, 1832.

In order to prove a common law prescription for the creation of the profits a prendre in gross, the claimants have to prove that the right has been enjoyed by them for a significantly long period of time. As in common law, this period of time was virtually impossible to prove, as it goes back to 1189, the Prescription Act 1832 provides the specific period of use which needs to be proved in order to prove prescription. In the case of profits a prendre, the period is 40 years and 60 years use under Section 1 of the Act. Where the claimant claims the longer period of 60 years use of profits, the right becomes absolute and indefeasible, unless there was a written consent or agreement that provided the right expressly. A written consent can destroy the claim of long use. In particular, what needs to be shown is the application of nec vi, nec clam, nec precario, which means that the prescription is created without force, secrecy, and permission of the owner.

In this scenario, the residents who live close to the Witchhazel estate have long enjoyed the “added benefits’ of living close to the Witchazel Estate and not necessarily adjacent to the Witchhazel estate. Therefore, the right is in the nature of profit a prendre. The residents, including Fred Reynolds, have enjoyed some game from the estate, including pheasant, rabbit or trout for a significant period of time. Fred Reynolds has been doing so since the late 1950s. The Frobishers have never denied the use of their land for the profits a prendre till this time so that some of the families now regard their ability to take fish and game from the estate as a right. In case of Fred Reynolds, he has been taking profits from the land since 1950s, which establishes the period of long use of 60 years under the Prescription Act 1832 Section 1. Therefore, Fred and similarly placed persons who are taking profits a prendre from the Witchhazel estate cannot be regarded as poachers. In fact, such persons can legally claim the profist a prendre gross through prescription for long use. Althouth the new owners, GOSH also intend making full use of the lakes for fishing and the woodland for shooting, and as part of this they intend cracking down on poachers; they cannot exercise this power against those like Fred who are lawfully entitled to the profits of the land. In case GOSH does obstruct the rights of the persons from taking profits from the land, the remedies that are available to the persons like Fred would include abatement, that is removal of obstruction; and an action before a court for the appropriate remedy from the court.

The issues in this scenario are whether the occupiers of the two gatehouses have any security of tenure or whether they can be evicted without any proper notice. The issues in this scenario are related to the tenancies of two occupiers of the gatehouses, Miss Clarice Dents, and Rupert Wylde. First, the position with respect to Miss Dents will be discussed. The concept that is applicable to Miss Dents case is that of periodic tenancy.

A periodic tenancy arises where the tenant is in possession of the land with the consent of the owner and pays a rent that is calculated on a periodic basis, which is accepted by the owner when it is paid. The payment of rent and the acceptance of the same by the owner creates a presumption that may be rebutted by the proving of a contrary intention. If no such intention can be proved then common law presumes the creation of a periodic tenancy. It is also noteworthy that the payment of periodic rent is only one, albeit an important consideration for the presumption of periodic tenancy. However, if the intention of the parties are seen to be consistent with the grant of a periodic tenancy, then the periodic tenancy may be assumed. This may happen in a number of situations, including where the tenant may hold on to the property after the period of lease has come to an end, continues to pay the periodic rent, and the same is accepted by the owner. Such a lease will then come within the purview of the LPA 1925, Section 54(2), which relates to the informal creation of leases of not more than 3 years. The Protection from Eviction Act 1977 has been enacted with the purpose of protecting the interest of the tenant to be evicted from the property without the order of the court. Section 3 of the Act provides protection against the forceful eviction without a court order. Furthermore, Section 5 provides that tenants under either a lease or a licence, are required to be given four weeks’ notice for the purpose of eviction from the property. The Act penalises the unlawful eviction of persons from the properties of which they are occupiers. The Housing Act 1988, Section 27 allows the civil action for damages for unlawful eviction against the landlord.

Coming back to periodic tenancy, there is no definite ending date for periodic tenancy and it continues until one of the parties takes legal steps to terminate the interest in the property. This has to be done as per the provisions of the Housing Act 1988 and a proper notice given to the tenant. In this case, Miss Dents commenced occupation in 1990, under a five-year tenancy agreement. When the tenancy agreement came to an end it was never renewed, and she just carried on paying rent every six months and the Frobishers accepted the rent at the regular intervals. Considering the law discussed above, there is a periodic tenancy applicable in this situation and Ms Dents cannot be evicted without notice.

With respect to Rupert Wylde, there is no tenancy agreement between him and the Frobishers. Instead, what they have is a Licence Agreement dated 7th April 2008. A Licence Agreement entitles a licencee to use the property as per the terms of the Agreement. Where the licence is contractual, that is, it involves a permission to use property for a consideration, then there is a right to not be forcefully evicted as the licence creates a right to remain on the land for a certain period of time.

However, even though there is a Licence Agreement, it may establish a tenancy between the two parties. The elements of tenancy if present, create a tenancy. These elements, as per Street v Mountford, include the right to exclusive use of possession for a fixed or periodic term and in consideration of lump sum or periodical payments. Moreover, there should be identifiable land, for a definite period, and a right of reversion for the lessor. The payment of rent is not an essential element for the creation of a tenancy as what is of the essence is the grant of interest to exclusive use or possess property for a certain period of time. However, the landlord may terminate such licence with a short notice. Therefore, there is a greater protection for Rupert Wylde, if instead of a licencee, he is considered to be a tenant.

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The Licence Agreement does mention that it does not create a tenancy in favour of Rupert Wylde in point 8 of the Agreement. However, tenancy can be inferred from the actual conditions under which the relationship between the Frobishers and Rupert Wylde is created, in which case the tenancy can be implied. If the agreement between two parties is termed a licence, but it satisfies the conditions of a tenancy, then it creates a tenancy. Thus, if the licence agreement gives exclusive possession of the property to Rupert Wylde for a definite period of time at the payment of rent by Rupert, then irrespective of the words of the licence agreement, what is created is a tenancy. The facts of the case show this to be the situation with respect to Rupert. Therefore, as a tenant, Rupert is entitled to the protection of the Housing Act 1988 and Protection from Eviction Act 1977. Therefore, he cannot be evicted without a proper notice under the Act.

Rupert took up occupation in 2005 under a short-term arrangement, which did not cease even after the reasons for moving into the property came to an end. Rupert continued to pay the licence fee as per the agreement and he had exclusive possession of the property. Therefore, there is a tenancy created although the term used to describe it is licence. Rupert cannot be evicted without notice.


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