Brief 199371 Adverse Possession Salchester City Council purchased the freehold estate in a large plot of vacant land in 1980. The title to the land is unregistered. The intention was to develop it as a state of the art sports complex. Unfortunately, ongoing disputes with Central Government about the availability of funding have led to delays and, at the present time (December 2003) the land remains undeveloped.
Harrison Haulage Ltd runs their business from a depot immediately adjoining the Council’s land. In November 1991 they started parking their vehicles on a portion of the land and effectively treated the land as their own. As their business expanded they made more and more use of the land and, in January 1992, they erected a portakabin on it to provide additional office space. In July 1992, following several attacks on their office from vandals, they erected a fence around the portion of land and fully incorporated it into their own property. The Council have written to Harrison on several occasions, informing them that they are trespassing and demanding that they vacate the land. Harrison have ignored all their letters and privately say that they intend to stay on the land until such time as the Council eventually develop the sports complex. Advise the Council about the risk (if any) of Harrison acquiring rights of adverse possession in the land and about any action they should now take to protect their position. Your advice should take the form of a report.
This should be in the region of 1,500 words in length and should, under no circumstances, exceed 2,000 words. The dispute between Salchester City Council and Harrison Haulage Ltd could be rightly regarded as being an unintended result of the difficulty that Salchester City Council has had in developing its land into a sports centre complex.
The sports centre project was first proposed in 1980, yet so far has failed to materialise due to disagreements with central government over funding. The impasse between Salchester City Council and central government has allowed Harrison Haulage Ltd the opportunity to use the piece of council land nearest to its own business premises even though that company knows that it is trespassing (Martin, 2003 p. 16). It would certainly be in the best interests of Harrison Haulage Ltd to continue its adverse possession of the land they were currently using, as they would have to locate larger premised at a different site otherwise. The sooner that Salchester City Council could remove Harrison Haulage Ltd from its land the better its chances of avoiding losing the land through adverse possession. For continuous occupation of property or land for a long period is the strongest factor in the granting of adverse possession (Stevens & Pearce, 2000 p. 61). Harrison Haulage Ltd’s occupation of the council land is not only saving it money, the occupation is also costing Salchester City Council potential revenue. If Salchester City Council could regain full occupation of the land site the construction of the sports centre complex could arguably commence earlier. In view of there being little prospect of central government finding the extra funding which Salchester City Council would like, it would be sensible for the council to review its intentions for building the sports centre complex.
Should Salchester City Council decide to go ahead with the sports centre complex without central government funding it would be highly advantageous to regain control of its land from Harrison Haulage Ltd if it wishes to complete the project to its original specifications. Once that decision is made then Salchester City Council needs to take the appropriate steps to end Harrison Haulage Ltd’s adverse possession of the land nearest to its premises (Stevens & Pearce, 2000 p. 61). Thus far Harrison Haulage Ltd has been able to maintain their illegal adverse possession of the land due to Salchester City Council being half-hearted or ineffective in their efforts to restore its ownership. There is no point in Salchester City Council sending letters to Harrison Haulage Ltd requesting that they vacate council property if those requests are not legally binding or cannot be enforced. Harrison Haulage Ltd has been able to ignore previous letters from the council due to such correspondence lacking legal enforceability. The best advice for Salchester City Council to act upon would be to issue a notice to Harrison Haulage Ltd that is wishes to repossess all its land with immediate effect. To achieve that goal all future letters from Salchester City Council to Harrison Haulage Ltd need to quote from the most relevant piece of legislation.
Quoting the correct legislation makes all the difference between being able to end adverse possession or just complaining about such possession to the offending party. In this case the most relevant legislation which Salchester City Council could best use to regain possession of its land would be the Criminal Law Act of 1977 and the Criminal Justice and Public Order Act of 1994 (Martin, 2003 pp 16-17). The advantage of citing these specific pieces of legislation is that any recovering action could be upheld in court and enforced by the Police if Harrison Haulage Ltd refused to vacate the land to allow the council to proceed with its plan for the development of the entire site. Harrison Haulage Ltd demonstrated their intention of establishing and maintaining adverse possession of the disputed land by fencing it off from the rest of the site and also by placing a portakabin upon that piece of land (Chynoweth, 2002 p.2). Although the fencing was erected to protect Harrison Haulage Ltd’s property being damaged by vandals it has the affect of marking where on the site that the firm wishes to establish adverse possession (Oakley, 2002 p. 551). The main reason for Harrison Haulage Ltd not complying with such legal notification would be a reluctance to have to find extra land elsewhere. That combines as well with the knowledge that they need only occupy the land continuously for more than twelve years for the council to lose ownership of that section of the site (Martin, 2003 p. 17). Salchester City Council in effect has less than four weeks or so to act to regain its piece of land before Harrison Haulage Ltd has the right to gain the land for free by asserting its claim of adverse possession. Even if the firm could not prove that it has been using the land since December 1991, it would certainly argue that it intended to carry on using the land as its own from January 1992 when the portakabin was erected. At best the firm would argue that its possession of the land was from July 1992 when it put up the fencing.
Once Harrison Haulage Ltd have occupied the land for more than twelve years then its chance of successfully claiming adverse possession improve significantly (Martin, 2003 p. 17). Given the limited time left before the Christmas and New Year public holidays, Salchester City Council would have to take action to recover its land within the next week. This would be to minimise the risk of Harrison Haulage Ltd gaining adverse possession of the land by virtue of having being in possession of the land for twelve years (Oakley, 2002 p. 551). It would also prudent for Salchester City Council to set a date for the construction of the sports centre complex to begin. For if the case went to court such a move would make it harder for Harrison Haulage Ltd to argue that the land was unused and did not have any intended use by the owner (Oakley, 2002 p. 123). The council has to act immediately to prevent the loss of its land. This is because Harrison Haulage Ltd could successfully convince the court that it took de facto possession of the piece land in December 1991 it could gain legal title through the provisions of the Limitation Act of 1980 in weeks. The court might not accept that claim, yet it would be harder to reject the case for adverse possession from July 2004. That is when the fence around the land has been separating the land from the rest of the site for twelve years and therefore not allowed the council to use the site, and could be the point at which the council losses title to its land (Chynoweth, 2002 p. 1). There is an alternative that Salchester City Council could consider yet it would have to take such a step immediately. If the piece of land currently occupied by Harrison Haulage Ltd is not essential for the completion of the sports centre complex it could be sold to the firm by the council.
Although not the best option for the council it would raise capital to be put towards the construction of the sports centre complex (Martin, 2003 p. 17). Selling the land to Harrison Haulage Ltd would end the risk of losing the same piece of land for nothing if the Court ruled in favour of Harrison Haulage Ltd, as the council would have no right of appeal under the Limitation Act of 1980 (Chynoweth, 2002 p. 1). To conclude Salchester City Council has to act within a week or two if it does not wish to lose its land to Harrison Haulage Ltd for nothing. Time is certainly in Harrison Haulage Ltd’s favour if the firm decides to claim adverse possession.
Depending upon the strength of evidence it has to present to Court, adverse possession could be claimed between December 2003 and July 2004. As July 2004 marks twelve years since the firm put a fence around the land it would have strong hopes of having adverse possession upheld. Salchester City Council needs to take immediate action to recover its land under the legislation recommended above, or alternatively sell the land to Harrison Haulage Ltd to prevent losing possession without any compensation or sale revenue. Bibliography Chynoweth P, (2002) Study Paper: The Law of Adverse Possession, www.lawlectures.co.uk Martin A E, (2003) Oxford Dictionary of Law, Oxford University Press, Oxford Oakley A J, (2002) Megarry’s Manual of the Law of Real Property- 8th edition, Sweet & Maxwell, London Stevens J & Pearce R A, (2000) Land Law – 2nd edition, Sweet & Maxwell, London
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