Limitation of Actions Consultation - Law Commission

It is not necessary, however, for the squatter to take possession with the intention
of owning it: an intention to possess is sufficient. 64
6.24 If there is no evidence to the contrary, there is a presumption that the owner of the
land is in possession of it. 65
It will then be for the squatter to bring evidence to
rebut the presumption and show that, as a matter of fact, the paper owner is no
longer in possession. Sometimes there may be doubt, because of uncertainty in the
title, as to who the paper owner actually is, and therefore who has the benefit of
the presumption. 66
6.25 In each case, it is necessary for someone other than the owner to demonstrate that
he or she has taken possession of the land without the consent of the owner. Lack
of knowledge of the dispossession on the owner’s part, in the absence of fraud, will
not prevent adverse possession from taking place. 67
Nor will a lack of power on the
owner’s part to deal with the land. 68
But it is not sufficient for the owner merely to
share occupation of the land with the squatter. 69
6.26 Possession is never adverse where the squatter enters the property as the owner’s
licensee. 70
An example of this rule is provided by Hyde v Pearce. 71
Here a
purchaser was allowed to take possession of a property pursuant to the contract for
sale before completion. A dispute as to the purchase price then arose, and the
contract was never completed. Fourteen years after going into possession, the
purchaser claimed to have good possessory title to the property. The Court of
Appeal rejected the claim, on the grounds that he had entered into possession with
the consent of the owner, under the terms of the contract, and that the contract
had never been repudiated. In BP Properties Limited v Buckler 72
the Court of
Appeal went considerably further, in holding that an owner’s unilateral offer of a
licence to a squatter already in adverse possession, to which the squatter did not
respond, brought the adverse possession to an end. The correctness of the
decision must be open to doubt because it rests on the erroneous assumption that
it is the paper owner’s intention rather than the squatter’s that is relevant to
adverse possession. 73
64 Buckinghamshire CC v Moran [1990] 1 Ch 623, 642 - 643, per Slade LJ. Cf Littledale v
Liverpool College [1900] 1 Ch 19, 23, per Lindley MR; George Wimpey & Co Ltd v Sohn
[1967] Ch 487, 510 - 511, per Russell LJ.
65 Powell v McFarlane (1977) 38 P & CR 452. Under s 38(8) of the 1980 Act, receipt of rent
or tithes is to be construed as possession of land in the case of tithes and rent charges.
66 T Prime and G Scanlan, The Modern Law of Limitation (1993), p 188.
67 Rains v Buxton (1880) 14 Ch D 537.
68 Midland Railway Co v Wright [1901] 1 Ch 738.
69 Morris v Pinches (1969) 212 EG 1141.
70 See, eg, Hughes v Griffin [1969] 1 WLR 23, 30, per Harman LJ; Powell v McFarlane (1977)
38 P & CR 452, 469, per Slade J.
71 [1982] 1 WLR 560.
72 (1988) 55 P & CR 337.
73 For criticism see H Wallace, “Limitation, Prescription and Unsolicited Permission” [1994]
Conv 196, 198 - 207.
101