Powell V MC Farlane (1979) 38 P &CR 452
Powell V MC Farlane (1979) 38 P &CR 452
Powell V MC Farlane (1979) 38 P &CR 452
doesn’t possess paper title, he should show Factual possession (appropriate degree of
occupation or physical control) and animus possidendi (requisite intention to
possess) to succeed in a claim of Adverse possession. Critically analyse this with
reference to case law and legislative provisions in UK.
https://e-lawresources.co.uk/Land/Adverse-possession.php
In order to make a successful claim for adverse possession in both registered and unregistered land,
the squatter must demonstrate that they were in factual possession for the requisite period of time
and that they had the intention to possess. This was established in Powell v McFarlane (1977) 38 P &
CR 452 (Case summary) and affirmed in Pye v Graham [2003] 1 AC 419 (Case summary).
There are multiple perspectives on this, and it can be divisive.. here are some of
them
Some would argue that is a squatter has occupied the land for so long, they might
have improved it/maintained it (although not necessarily)
Some would argue that landowners should not be allowed to rely on their property
rights which they have failed to uphold for such a long time
Some would argue that land, being such a valuable asset (and so important to our
economy) should not be removed from general circulation and should be used.
(should you be able to buy a property and just leave it, if you wish. Its your
investment after all..)
Some would argue that land should be protected, and should not be allowed to sit
abandoned or unused for years. (Are we making the most out of the limited land we
have? Is context important – do we want a big building in the center of town just left
or rot? Does it matter if a field in the middle of nowhere is left unused?)
“Factual possession signifies an appropriate degree of physical control. It must be a single and
[exclusive] possession, though there can be a single possession exercised on behalf of several persons
jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in
possession of the land at the same time. The question what acts constitute a sufficient degree of
exclusive physical control must depend on the circumstances, in particular the nature of the land and
the manner in which land of that nature is commonly used or enjoyed … Everything must depend on the
particular circumstances, but broadly, I think what must be shown as constituting factual possession is
that the alleged possessor has been dealing with the land in question as an occupying owner might have
been expected to deal with it and that no one else has done so.”
You can briefly mention what each of these mean and cite cases to support
What are the conducts not approved as showing intention to possess? If the
squatters conduct is deemed to be too ‘transient’ (passing, for a short time)
in nature, then it will be insufficient to show the required intention.
In Dyer v Terry [20013] UWHC 209, it was held that the squatter could not
show intentionsimply through the acts of mowing the grass and picking up
litter.
Include examples of conduct not allowed;
- Sometimes, even fencing (which is usually a good indicator of ‘factual
possession’ and intention) might not be enough!
This has been shown in a couple of cases:
Fruin v Fruin [1983] CA 448 – fencing was mainly put up in order to keep a
senile member of the family from wandering away...
Inglewood v Baker [2002] EWCA Civ 1733 – fencing was put up around
woodland primarily to keep sheep from wandering away ..
Briefly mention and Emphasize the difference between registered land and
unregistered land(the issue of notice) when it comes to AP and how its more
relevant to unregistered land( in registered land how AP is restricted).
Conclude that factual possession is about possession of land without the permission of
the owner and using it as would have been used by the owner, and intention is not
mens rea but can be deduced by the adverse possessor’s conduct.
This means that actual occupation with or without the knowledge of the owner(whether
he knew or not) and conduct sufficient to show possessor had intention to use the land
for their own benefit as an owner would is sufficient to amount to AP as long as the
requisite AP period is met.