Suggested Answer to Exercise 13.3 (Part 3)
A Detailed Answer Plan
Who will succeed in an action for possession will depend upon whether Kate can establish that she has been in adverse possession of the land for a sufficient period. As Olwen’s lease and the reversion are unregistered this will depend upon the rules in the Limitation Act 1980. If the lease had been registered the relevant rules, at least as between Kate and Olwen, would be those contained in Schedule 6 of the LRA 2002.
Olwen's Action for PossessionSection 15(1) of the Limitation Act 1980 operates to bar an action for possession by the paper titleholder at the end of a period of 12 years’ continuous adverse possession. Continuous possession may include the possession of a previous squatter (Williams v Usherwood (1982) 43 P & CR 235). Kate has not yet occupied the land for twelve years. However, she may be able to add the period Mumtaz was in occupation to her own, provided there was no gap between his death and her taking possession of the land.
If the period of occupation is sufficient, Kate must establish:
- Actual possession
- Sufficient degree of physical control of the land (Powell v McFarlane (1979) 38 P & CR 452)1
- Living in barrel on the land - but does it extend beyond the footprint of the barrel to the rest of the corner of the wood? Boundary markers (but not fence/wall); goat grazing.
- Assume sufficient for purposes of this answer.
- Intention to possess.
- Did Kate (and Mumtaz) intend to exclude the world at large, including the paper title owner from the land (J A Pye (Oxford) Ltd v Graham  1 AC 419)2?
- Olwen has not been allowed in the woodland for years’ seems on the face of it to meet this requirement.
- If the squatter is aware of a special purpose that the paper title owner has for the land, this may affect animus possidendi, but will not otherwise affect the nature of the possession (the Pye case at ). It is not clear that Kate is aware of Olwen’s plans. Even if she were, this would seem insufficient to outweigh the other evidence of intention.
- Without the paper title owner’s consent.
- The ‘heresy’ of implied licence has not survived the Limitation Act 1980 (J A Pye (Oxford) Ltd v Graham at ). Beaulane Properties Ltd v Palmer  Ch 79can be distinguished as that case concerned s.75 LRA 1925 (it is, in any event unlikely to be followed after the decision of the European Court of Human Rights in J. A. Pye (Oxford) Ltd v UK (2008) 46 EHRR 45.
- A more significant problem may be the basis of the occupation by Mumtaz. What did he have a weekly lease of? The land under the barrel; the land and the barrel (is the barrel part of the land?3); the wood? A weekly lease continues until determined by one of the parties. If the weekly tenancy was granted expressly, Olwen might argue that it has never been determined - neither she, nor any predecessor in title, having taken action to do so, notwithstanding the non-payment of rent. However, Olwen has stated that she did not consent to the occupation and the Court may regard this as sufficient to negate any consent even without the formal determination of the tenancy.
If Kate can satisfy the above conditions she can almost certainly bar Olwen’s action for possession using section 15(1) and para 1 of Sch.1 of the Limitation Act 1980. There is no evidence that Kate has concealed her possession of the land (Limitation Act 1980, s 32).
This will extinguish Olwen’s title (Limitation Act 1980, s17) but not that of the freeholder.
The Rights of the Freeholder4
In Fairweather v St Marylebone Property Co Ltd  AC 510, a majority of the House of Lords held that the predecessor to section 17 of the 1980 Act did not extinguish privity of estate between the landlord and the disposed tenant. Consequently, it would be possible for Olwen to negotiate a surrender of the lease, for Trusties to obtain an order for possession against Kate, and for Trusties to then grant Olwen a new lease with vacant possession. However, Trusties are almost certainly going to make a considerable charge for agreeing to this, given the consequences for the value of the land.
If the Lease were RegisteredSection 96 of LRA 2002 would exclude the provisions of the Limitation Act 1980 from applying on the facts of this case. The rules in Schedule 6 of the LRA 2002 would apply.
Kate must apply to the Land Registry to be registered as the proprietor of the lease (Sch 6, para.1). Notice of the application will be given to all the relevant parties including Olwen and her landlord, Trusties (Sch 6, para 2).
Both Olwen and Trusties would be entitled to object to Kate’s application. If they do not do so within three months Kate will be registered as the proprietor of a leasehold title to the land she is claiming for a term equivalent to the remaining term of Olwen’s lease.
If either Olwen or Trusties object to Kate acquiring the title to the land, the application will be dealt with under para 5 of Schedule 6 of the LRA 2002. It seems unlikely that Kate’s case will fall within the exceptions in this paragraph. Consequently, Kate will not be registered as the proprietor of the lease. Olwen will then have two years in which to bring possession proceedings against Kate. If Olwen fails to act within this period, Kate will then be entitled to be registered as the proprietor of a leasehold estate in the land she is occupying (Sch 6, paras 6 and 7).
1. See, especially Slade J’s explanation of the extent of possession required in each case: Powell v McFarlane (1979) 38 P & CR 452), 470.
2. Where Lord Browne-Wilkinson approved Slade J’s summary of intention to possess (‘animus possidendi’) in Powell v McFarlane (1979) 38 P & CR 452, 471-472).
3. Perhaps not a major aspect of this question, but interesting nevertheless: see Elitestone Ltd v Morris  1 WLR 687.
4. See Land Law, Section 13.6.