Legal Concepts

Jon Maynard Boundaries Ltd, Boundary Demarcation and Disputes, Rights of Way, Expert Witness, Chartered Land Surveyor

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Legal Concepts affecting boundaries

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Possessory Title
Adverse Possession
Estoppel
Duty of care
Duty of support

The concepts of adverse possession and of estoppel may affect the ownership of land adjacent to a property boundary. These are legal concepts that are, to the best of my knowledge, not recorded as statute law. The descriptions that follow are written by a layman for the benefit of other laymen, and should not be relied upon as if they were authoritative.

 

Possessory Title

Adverse possession would not be possible without the concept of possessory title to underpin it. Possessory title refers to the ownership of land by someone who does not also possess deeds to document his ownership of that land, specifically because those documents do not exist. In a historical context it is easy to imagine a landowner who kept his deeds at home, home being a wooden house that was lighted and heated by naked flames. It would be unfair to tell such a landowner that he no longer owned the land simply because his house burned down, thus destroying his title deeds.

 

Adverse Possession

Adverse possession is a particularly emotive subject amongst landowners. Adverse possession has been used by some landowners to legitimise what can only be described (in layman's - but not in legal - terms) as the theft of other people's land.

Adverse possession has been used historically as a means of bringing waste land into economic use. In earlier centuries in England and Wales, anyone who persevered for a long period in farming otherwise unused land, so helping to feed a hungry nation, was rewarded with recognition of his title to the land regardless of whether or not someone else actually owned the land.

In centuries past adverse possession has proved a useful concept in the colonies, where the mistaken belief that no-one owned the land facilitated the settling and development of the land by squatters who were likewise rewarded with title to the land they occupied.

In more recent times the concept of adverse possession has been used to resolve cases in which there was no documentary record of the precise position of a boundary and the garden fences had migrated gradually over the years as replacement fences failed to occupy the exact positions of their predecessors.

Traditionally, a squatter wishing to claim ownership of land by adverse possession would have to:

  • be in actual possession of the land,
  • enclose the land so as to keep out the world at large and the rightful owner in particular, thereby enjoying exclusive use of the land,
  • act with the intention of being the owner,
  • hold himself out to be the owner,
  • cultivate the land,
  • satisfy the 12 year qualifying period laid down in the Limitation Act 1980.

The formal means by which a squatter could have his ownership of the land recognised was to apply to a court for possessory title to the land. Litigation being an expensive process with an uncertain outcome, many squatters preferred to save the expense and hope that their ownership was not challenged. They put their faith in the adage: "possession is nine-tenths of the law".

Recently, "adverse" possession is evidenced by the squatter demonstrating actual possession (that does not have to include an element of being contrary to the interests of the paper title owner) and exclusive enjoyment of the land for the qualifying period of twelve years. This effectively shortens the above bullet list to only its first two points.

More recently the European Convention on Human Rights, the Human Rights Act 1998 and the Land Registration Act 2002 have come into play. A series of cases have clarified the law surrounding adverse possession whilst demonstrating the complicated nature of adverse possession.

A number of claims have been made that the operation of adverse possession under English law contravenes the European Convention on Human Rights. This is particularly relevant where the owner of registered land who has been dispossessed of his title to that land through the operation of adverse possession feels that he may have a claim against the UK government for compensation for his loss. The situation that now pertains is that court cases involving adverse possession have to be dealt with differently according to whether the twelve year qualifying period ended before 02 October 2000 (the introduction of the Human Rights Act 1998), between that date and 13 October 2003 (the introduction of the Land Registration Act 2002), or later.

Under the Land Registration Act 2002, possessory title to registered land can be obtained simply by application to Land Registry. This provides certainty of ownership without resort to the courts, or reliance on the unreliable "nine-tenths of the law"! The qualifying period under the Limitation Act 1980 no longer applies, but the squatter must have been in possession of the land for at least 10 years and the land must have been registered for at least 1 year. Land Registry will notify the application to the registered owner, who has 65 working days (three months) in which to respond. If the registered owner wishes to retain his title to the land then he must serve a counter notice, following which he must take steps to evict the squatter. If necessary, the registered owner can apply to a court for a possession order. If the squatter is still in possession of the land two years after his application, then he may apply afresh to Land Registry and his title will automatically be granted.

The effect of the Land Registration Act 2002 is to make it more difficult for a squatter to acquire land by adverse possession, but it still places an onus on the registered owner to evict the squatter.

Further information is available from Land Registry
in their Practice Guide 4 - Adverse possession of registered land
and their Practice Guide 5 - Adverse possession of (1) unregistered land (2) registered land where a right to be registered was acquired before 13 October 2003

As opposed to questions of ownership of whole parcels of land, adverse possession will continue to have a role to play in the determination of the position of a disputed boundary between two parcels of land whose respective ownership is clear and unchallenged.

 

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Estoppel

According to the Concise Oxford Dictionary:

estoppel, n. (legal). The being precluded from a course of action by previous action of one's own. [f. OF estoupail bung]

A practical example: "A" has an architect draw up plans for an extension to be built on the side of his house. Space at the side of the house is limited and "A" shows the plans to his neighbour "B", whose land abuts the land on which the extension is to be built. "B" makes no comment on the plans.

Building operations begin and "A" makes a point of inviting "B" to inspect the trench before any foundations are laid in it. Again, "B" raises no objections as to the position in which the trench was dug.

Foundations are laid in the trench, the extension is built upon these foundations, and all building work is completed. At this point "B" notices that the new extension has encroached across the boundary. "B" would like to start a legal action against "A" for encroachment but "B" is estopped from doing so because his earlier failure to object to either the plans or the position of the trench is taken as his having given tacit approval for "A's" intended works. His earlier action, although it was tacit, precludes him from now pursuing a claim of encroachment.

Further explanation of proprietary estoppel is available in the form of a quotation from Wikipedia on our Glossary page.

 

Duty of care

According to Wikipedia:

In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others.

 

Duty of support

See "Right of Support" on the Easements page.

 

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