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The Importance of being adverse

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24/01/2014


Making a claim for adverse possession is a method by which an ‘unlawful’ occupier can acquire legal title to the land, by ‘displacing’ the paper owner. Adverse possession can be relied upon by squatters residing in a property or making use of a piece of land for the requisite length of time [1].

The case of Robert Smart v Lambeth London Borough Council [2] concerned a claim for adverse possession which was said to have arisen by virtue of occupation for a period of at least 12 years prior to 1993, but the principle considered in the case applies equally to any claim for adverse possession.

The case involved properties in Clapham, London which, in 1971, were acquired by Lambeth London Borough Council (the Council). Following acquisition, the properties were left vacant and squatters took possession. Rather than evict the squatters, the Council decided to re-house them in the occupied properties. With the agreement and involvement of the squatters, the Council granted a licence to a housing association which, in turn, gave the housing association permission to grant licences to occupy (in a specified form only) [3], to the squatters.

Occupation without lease or licence…

The claimant, Mr Smart, became the sole occupier of one of the properties in 1984. His predecessor had been one of the squatters and the predecessor’s boyfriend had signed a licence granted by the housing association. Neither the predecessor nor the claimant had ever signed a licence; they were aware, however, of the overall Council/housing association occupation scheme.

The claimant sought to argue that he (and before him, his predecessor) had been in adverse possession of the property for a period of 12 years prior to 1993 by virtue of their own lack of licence. His argument failed in the county court where it was held that neither he nor his predecessor had ‘adversely’ occupied the property, as the Council had impliedly consented to his occupation i.e. by generally allowing the housing association to grant licences to occupy to squatters.

… is not necessarily without consent

Mr Smart appealed to the Court of Appeal, where his claim was dismissed. The Court of Appeal confirmed that occupation of a property with the owner’s consent was not adverse possession and, crucially, that the consent to occupy did not have to be express nor contractually binding – it could be implied. Here, consent by the Council to the claimant’s occupation was implied because the licence granted to the housing association indirectly gave consent for any person within the envisaged category of squatters and their successors to occupy, and that included the claimant. Regardless of the lack of signed licence, the claimant knew of the existence and terms of the housing association scheme and so he knew that he was among the class of people intended by the Council to be permitted to occupy. The Court of Appeal therefore held that the claimant occupied with the Council’s consent and adverse possession could not be established.

Important principle
The important principle to take away from this case is that, in addition to proving the requisite length of period of uninterrupted occupation of the land and demonstrating an intention to possess in spite of the lack of legal ownership during that period, a claimant must also establish that its possession is adverse – i.e. patently without the landowner’s consent. The Court of Appeal has clearly shown that this is a high threshold to meet, and that mere lack of direct legally documented consent will not do. Any claimant seeking to acquire legal title to land by displacing the paper owner will have to carefully consider all the circumstances of the case – in particular they will have to be alive to the possibility of any consent having been granted impliedly.

The case is likely to be welcomed by landowners, who will be reassured that the courts do not regard their legal proprietary rights lightly.

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[1] Pursuant to the Land Registration Act 2002 the requisite period of occupation for registered land will be either 12 or 10 years respectively, depending on whether the possession relied upon was for a period ending before 13 October 2003 or includes occupation since that date.
[2] [2013] EWCA Civ 1375
[3] The form contained a restriction that no individual was to be granted exclusive possession.

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