On the facts, the strip of land is part of the registered title to Goodneighbours, the registered proprietor (RP) of which is Michael. Consequently, Donald can only claim ownership of it through adverse possession (AP). There is no statutory definition of AP.
However, essentially, it is possession of land which is inconsistent with the title of the true (paper) owner. In Powell v McFarlane, 1977 38 P & CR 452. it was stressed that there is a presumption that the paper owner is in possession so, in any action on AP, the burden of proof is on the ‘squatter’ (Donald), to prove the elements of AP, namely factual possession which must be adverse and intention to possess. As title is registered, the requisite period for AP is a minimum of 10 years. Land Registration Act 2002, Sched. 6.Factual PossessionDonald is advised that time will only begin to run against Michael from the date on which he was dispossessed, and Donald took physical possession (without Michael’s consent).
Pye v Graham, 2002 UKHL 30, 36-37 (Lord Browne-Wilkinson). According to Slade J in Powell, (n 1) 478. Donald must show that he has dealt with the strip as an occupying owner. This is demonstrated by exercising control over the land, clear evidence of which is the ‘locking or blocking of the only means of access’ in the aforementioned case.For factual possession to exist, the squatter must intend to exclude all others including the paper title owner, he must be in factual possession for an unbroken period of time and factual possession must be openly exercised.
The latter two appear to be satisfied on the facts.Donald purchased Cuckooland in 2006 but left the strip uncultivated for a year, which indicates that he did not dispossess Michael before 2007. Thus, the requisite period for establishing AP would be satisfied in 2017.Physical control of the property depends on the type of land.
Since the strip is quite small, then very clear evidence of this is necessary. Fencing is the most conclusive evidence of possession and intention to exclude others (especially for smaller plots). Heaney v Kirkby 2015 UKUT 178 (TCC). turned on similar facts to those at hand as it concerned a grass verge. The planting by Mrs Kirkby of ‘a flower border and various plants’ as well as the ‘Planting and maintaining flowers’ ibid 16. was held to be sufficient to show factual possession. The planting of bushes by Donald along the strip may be held to be analogous and sufficient to constitute factual possession, provided that the bushes were sufficiently high and extended to the whole of the perimeter of the strip so that it could be said to effectively isolate it from intruders.
Intention to PossessThis requires an intention to exclude the world at large from the land, including the paper owner, ‘so far as it is reasonably practicable and so far as the processes of the law will allow’. Powell v McFarlane (1979) 38 P. & C.R. 452 (Slade J). It should be noted that Donald’s intention was to deter Michael’s cats from fouling the strip. This may not be enough to satisfy the test unless the bushes were sufficiently high to prevent anyone else from entering. In Pye v Graham (n 1).
See also Buckinghamshire CC v. Moran 1990 Ch 623., the planting of hedges was one of the reasons for the court finding that the squatter had the requisite intention. Adverse PossessionThere is no statutory definition of ‘adverse’ but it may be understood as meaning possession which is inconsistent with the rights of the paper owner (it does not have to be hostile or aggressive). This appears to be satisfied on the facts since Donald did not have any permission from Michael. His possession was open, satisfying s.32 Limitation Act 1980. If Donald proves that he is in AP of the strip, the procedure prescribed by LRA 2002 Sched 6 would have to be followed.
According to para 1, in 2017 Donald can apply to the Land Registry to become the new RP of the strip. Once he does so, the Registrar will give notice to the RP (Michael), who will have the right to respond within three months. LRA 2002 Sched 6, paras 3 & 5. If Michael does not respond or does not oppose the application, Donald may be registered as proprietor of the estate. If Michael objects but fails to take steps to ‘evict’ Donald within two years, Donald will have the right to apply again and he will be ‘entitled to be entered in the register as the new proprietor of the estate’. Ibid, Sched 6 para 7.If Michael responds and opposes the application, it will likely be rejected.
There are only three special cases where, despite opposition, the squatter may succeed in achieving registration, namely proprietary estoppel, some other right to the land in question and reasonable mistake as to boundaries. ibid, para 5(4). On the facts, there was no promise by Michael to Donald that he would have a proprietary interest in the strip, which means there can be no reliance by Donald to his detriment, in circumstances where it would be unconscionable for Michael to be allowed to go back on his promise, so there is no proprietary estoppel.
LRA Sched 6. para. 5(2); for the elements of proprietary estoppel see e.g.
Thorner v. Major 2009 UKHL 18.Sched. 6, Para. 5(4) provides for the registration of the applicant where the land in question is adjacent to his own, the exact boundary between the two has not been determined and, during at least ten years of adverse possession, he has reasonably believed that the land belongs to him. On the facts, this cannot be satisfied as, though Donald appears to have thought that the strip was part of his land, his surveyor Vladimir knew this was not the case from 2006 when the land was bought.
Vladimir is Donald’s agent here so his knowledge of this will be imputed to Donald who will be deemed to have also known and this will preclude him from establishing mistake.Para. 5(3) states that registration should be made ‘where the applicant is for some other reason entitled to be registered as the proprietor of the estate’. On the facts, there does not appear to be any such reason (this covers cases where the squatter has some right to the land e.g. under the will or intestacy of the deceased proprietor).Donald is advised that the issue is whether he and Theresa entered into a valid contract for the sale of Westwing. Such a contract would bind Theresa, and Donald would consequently have grounds for compelling her to proceed with the purchase (by seeking an order for specific performance).
According to s2 of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989), contracts for the sale of land or interests therein must be in writing, contain all the agreed terms, be signed by all parties and be in the form of a single document or two identical documents, one signed by the buyer and one by the seller. On the facts, the communication between the two parties was by two emails, with Theresa emailing Donald her offer to buy Westwing for £500,000, and Donald replying with his acceptance. As was confirmed in Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd (reinforced by Green v Ireland) 2012 EWCA Civ 265 and 2011 EWHC 1305 (Ch) (18 May 2011) respectively. the requirement that a contract be in writing can be satisfied by a series of emails, provided that they contain all the terms.Nevertheless, Donald may face some difficulty in establishing that the two emails were signed by both of them. Prima facie, the fact that he ended his email by adding his nickname would appear to be problematic, but Tomlinson LJ stated that ‘an electronic signature is sufficient and that a first name, initials, or perhaps a nickname will suffice’.
Golden Ocean (n 12) 32. The fact that Donald ended all his correspondence with the nickname, and the inclusion of the architect’s drawing which contained his signature, would suggest Donald’s intention to take responsibility for the content of the agreement. Case law on this matter has focused more on whether a signature has the effect of authenticating intention rather ‘than whether the form of signature used was one which was commonly recognised’. Law Commission, Electronic Commerce – Formal Requirements in Commercial Transaction: Advice, Dec. 2001 p.13. Furthermore, there is no information on the facts whether Theresa signed her email.
If she did not, then there would be no valid contract. However, Theresa may well argue that the oral agreement between them for the purchase of the gold curtains constituted a new term which was not included in the contract. This would indicate lack of compliance with s2 LP(MP)A 1989, rendering the contract invalid.
As stated in Carol Lee Grossman v Simon Glass Hooper, 2001 EWCA Civ 615, 20 (Chadwick LJ). the existence of a collateral contract comes down to whether ‘… the terms upon which the parties agreed that the land was to be sold include a term (or terms) which have not been incorporated in the document which they have signed …’. Here, the oral agreement was made a week after the formation of the agreement for the sale of Westwing.
Also, Theresa was to buy the gold curtains for £50, an insignificant amount of money compared to the £500,000 purchase price of the land. Therefore, it seems that the oral agreement is a collateral contract which is not necessary to comply with s2 (also bearing in mind that the curtains are chattels and are not part of the land). Overall, in both legal aspects he is facing, he can use statutory provisions and judicial precedent to argue in court for his AP and contractual legal rights.BibliographyTable of casesCarol Lee Grossman v Simon Glass Hooper 2001 EWCA Civ 615Golden Ocean Group Limited v Salgaocar Mining Industries Pvt Ltd 2012 EWCA Civ 26Green v Ireland 2011 EWHC 1305 (Ch) (18 May 2011)Heany v Kirkby 2015 UKUT 178 (TCC)Powell v McFarlane (1979) 38 P. & C.R.
452Pye v Graham 2002 UKHL 30Table of LegislationLand Registration Act 1980Land Registration Act 2002Law of Property (Miscellaneous Provisions) Act 1989Secondary sourcesBogusz B. & Sexton R., Complete Land Law (2nd edition, OUP 2011)Dixon M., Modern Land Law (10th edition, Routledge 2016)Law Commission, ‘Electronic Commerce – Formal Requirements in Commercial Transaction: Advice’, Dec.
2001Pawlowski M. & Brown J., ‘Adverse possession and the transmissibility of possessory rights – the dark side of land registration?’ Conv. 2017, 2, 116-131’Treatise on the Real Property Statutes’, 2nd edition