The doctrine of adverse possession is defined as ‘squatters taking possession of land without the consent of the owner, which ultimately leads to the loss of the estate of land from the paper owner to the squatter’ through discontinuance or dispossession. In Powell v MacFarlane, Slade J defined dispossession as the ‘taking of possession from another without the other’s licence or consent.’ Thereafter, Lord Browne-Wilkinson in JA Pye (Oxford) Ltd v Graham stated that dispossession would occur when the squatter ‘assumed possession in the ordinary sense of the word.’ This meant that the courts were no longer required to spend time defining dispossession and gave it its simple meaning.

Plantagenet Palliser (P) is considered a trespasser when he goes on Eustace Lodge without permission, however, he may claim that he has rights of the land by way of adverse possession on the grounds of dispossession. By continuing to use the land and Buckfordshire County Council (BCC) sending letters in regards to P trespassing, the conduct by both parties qualifies as dispossession rather than discontinuance which would have been the case if BCC had abandoned the land.

REQUIREMENTS

In order to succeed in a claim of adverse possession, the claimant must establish two fundamental requirements; factual possession and an intention to possess (animus possidendi) the land as set out by Slade J. Factual possession refers to the squatter being in physical possession of the land by having a degree of control over it and treating it as the owner would. An intention to possess is shown by excluding others from using the property, including the paper title owner and the claimant is not required to have an intention to own the land These requirements were later affirmed in Pye. A final requirement is that possession must be adverse which in this case, P did not have permission to be on the land therefore hi possession is adverse.

East Gates Driveway

In giving P access to the driveway on the estate, the property gave him an easement right. Lord Denning, while describing the difference between positive and negative easements in Phipps v Pears, he concluded that ‘positive easements…give the owner of land the right to do something on or to his neighbour’s land…’ Therefore, Mr P and his visitors had permission to use the driveway by way of easement thus no issue of adverse possession.