Regular updates on relevant case law and legislation

CHAPTER 5 ADVERSE POSSESSION

Box A2iii There must be an intention to possess

In Ofulue v Bossert [2008] EWCA Civ 7; [2008] HRLR 20 it was held that even if the squatter wrongly believes he is a tenant, he can occupy property in such a way that he can still claim adverse possession.

Box A3 The squatter has not acknowledged the paper owner’s title in writing

In Ofulue v Bossert [2008] EWCA Civ 7; [2008] HRLR 20 the Bosserts had defended themselves against possession proceedings by claiming that they were tenants. In doing so, they had acknowledged that Mr Ofulue was the true owner of the land. However, it was held that the reference to the word ‘title’ in section 29 meant a reference to the title as it concerned the parties in the dispute. The dispute was not over title as such, but over possession of the land. The Bosserts had never acknowledged that Mr Ofulue had a better right to possession because of his title and so there was no acknowledgement of title.

It was also held that whilst a claim to possession made through the courts by the owner of the land could stop time running, time would start running again if the possession proceedings were not continued as happened in the case.

Adverse Possession and Human Rights

In Ofulue v Bossert [2008] EWCA Civ 7; [2008] HRLR 20 the Bosserts had completed the period of adverse possession by 1999 so the case was determined under the Land Registration Act 1925. Mr Ofulue, the registered proprietor of the land in dispute, argued that the tests of legitimate aim and proportionality that had been applied in the Grand Chamber in Pye v UK should be applied to each individual case that arose because the State could exercise a margin of appreciation. The Court of Appeal held that the decision of the Grand Chamber applied to all decisions on adverse possession. Whilst the State had a margin of appreciation in deciding how adverse possession should be regulated, this margin of appreciation could not be used as an argument for deciding each case on its own facts. Mr Ofulue could not argue breach of his human rights. A good try, though, Mr Ofulue.

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