In order to apply for adverse possession one would need to show not only a factual possession of the land but also an intention to possess that land. There is a need for both to be present.
The intention to possess has been defined as involving “a sufficient degree of custody and control” and “an intention to exercise such custody and control on one’s own behalf and for one’s own benefit” (see Pye v Graham).
Generally it is easy to show a factual occupation of the land but it may be much harder for a person to show an intention to possess as, for example, it may be the case that they are occupying by mistake.
An intention to possess must be “the intention, in one’s own name and on one’ own behalf, to exclude the world at large including the owner with paper title …..so far as is practicable and so far as the law will allow” (see Powell v McFarlane)
Intention alone is not enough, it must be made clear to all by their actions, including to the owner that they intend to possess.
The intention to possess does not require a “confrontational knowing removal of the true owner from possession”. The meaning of the term “adverse” in this context means that the possession is without the owner’s consent not that it is consciously or even passively hostile.
A simple assertion by the Claimant of his/her intent to possession is not enough to show intention for adverse possession. More is needed. Acts such as fencing in or maintenance are very indicative and an intention to possess can be deduced from these types of acts.
The possession by the Claimant must be uninterrupted and continuous.
Intention where occupation is by mistake
A common mistake frequently occurs where sometimes the uncertainty of a boundary may have lead to a contractor mistakenly thinking that the land belonged to the owner and erecting a fence on land not belonging to the owner. This situation results in an encroachment on a neighbour’s land. In circumstances such as these it is arguable whether there is an intention to possess. Can the owner of the fence benefit from the mistake?
In this situation can there be an intention to possess? A person who mistakenly believes that they own part of a neighbour’s land may have the necessary intent but the onus is upon him to show this intent. In one case a squatter who mistakenly believed that he had a tenancy of disputed land was shown to have the necessary intent (see Hughes v Cook). The onus is on the person claiming adverse possession to show this intention to possess. Factual occupation is not enough.
Quinn & Co specialise in making applications and/or objecting to applications for adverse possession. Should you wish to discuss a possible application or objection for adverse possession please contact Joseph Quinn on 01392 248858
This article does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.