Graham’sadverse possession over mushroom patch ForGraham to acquire a title over ‘mushroom patch’, he would need to establishadverse possession through s.
75 LRA 20021. Adversepossession is when the title can be traced back by looking at the title deed tothe paper owner. If the claimant does enter into adverse possession, they willreceive a freehold legal title over the land they adversely possessed. Withthis in mind, s.15 of the Limitation Act 1980,2 statesthat ‘no action shall be brought by any person to recover any land after theexpiration of twelve years from the date on which the right of action accruedto him’,3 givingthe paper owner an opportunity to recover back the land.
As soon as this twelve year period has been surpassed, theoriginal owner’s title of the land will be transferred and Graham will be heldas a trust over mushroom patch, as illustrated in s.17 Limitation Act1980.4Furthermore, the claimant must also show that they were in factual possessionduring the twelve-year period. It was highlighted in the case of Lord Advocate v Lord Lovat,5 where Lord O’Hagan stated that ‘it mustbe considered in every case with reference to the peculiar circumstances.’6 Meaningfactual possession will not be the same in each case due to the nature of theland.
Furthermore, in the case of Powellv McFarlane,7Slade J highlighted the necessary steps to establish whether one has adverselypossessed the land. There are two steps to this, they must show that they havefactual possession and the intention to possess, ‘animus possidendi’. Applyingthis to the scenario, Graham has factual possession as he is able to illustratethat he has acted as if he was the owner of the land. This is shown through thecontinuation of cultivation of mushrooms after the licence has been revoked.Furthermore, the case of Williams vUsherwood8 highlighted that the enclosing of landby a fence can be conclusive evidence of factual possession. With Grahamputting up a sign stating that people should keep up satisfies this element ofadverse possession. Inaddition to this, Graham needs to prove his intention to possess ‘mushroompatch’.
This was illustrated in the case of Pyev Graham9where the House of Lord stated that the adverse possessor must have nointention to own the land but to have the intention to exclude the world. Itcan be said that by Graham building a makeshift low fence and him putting up asign stating, ‘Graham’s Mushroom Patch – Keep out!’, shows that Graham has theintention to possess. Oneof the key issues is the period of when Graham enters into adverse possession.
The facts stated that in the summer of 1991, the licence arrangement had cometo an end, however, assuming Graham was still cultivating mushroom till 2016.It can be argued that Graham can apply the 192510 act astwelve years from the summer of 1991 takes us to 2003, meaning the oldprovision will be applied, as the LRA 200211 cameinto force on the 13th October 2003. However, the new provision ofthe LRA 200212requires there to be a ten-year period. This means that Graham can also rely onthe new provision as the ten-year period has been met. Inadvising Teresa on whether she can stop Graham from acquiring the land, she canrely on Williams v Raftery,13 whereit was held that certain acts of possession cannot be regarded as adverse. Inthe Williams14case, it was highlighted that the cultivation of land and the building offences and sheds was held not to be sufficient to adverse possession.
This cansimilarly be applied to the facts of the case as with Graham cultivatingmushrooms and making a substantial profit, and him building a fence will not beseen as adequate to satisfy the elements needed for adverse possession. However, I believe that Teresa willeventually lose the land to Graham as Teresa had the opportunity through s.17Limitation Act 198015 andalert Benedetta to bring an action to recover the land. The fact that Teresadid not alert Benedetta on Graham acquiring Mushroom Patch through adversepossession, Benedetta’s title to the land will be extinguished.16 YourMoneyMortgages Repossessing Apple Manor WithApple Manor, Teresa was not aware of the mortgage that was placed on thisestate. This means that Teresa must show that she has an overriding beneficialinterest in Apple Manor to in order to resist repossession. To establishwhether Teresa has beneficial interest, she must satisfy all the elements ofconstructive trust.
This was highlighted in the case of Gissing v Gissing 17and later reaffirmed in Lloyds Bank vRosset18,where there is an absence of a declaration of trust, Teresa needs to showcommon intention and that she had acted in her detriment to assert beneficialinterest on the estate. Lookingat common intention, there can either be express or inferred common intention.In applying this to the scenario, it can be said that Teresa under constructivetrust has a beneficial interest in Apple Manor. The fact that Teresa is payingfor the repairs of the roof, which was deemed as essential, satisfied thecommon intention as the financial contribution to the maintenance shows that itwas inferred, as shown in the case of Grantv Edwards,19where it was held that contribution to house hold expenses was sufficientto prove common intention. With common intention being inferred, it may bedifficult to demonstrate the level of detriment. However, the repairs of theroof were seen as essential for Benedetta to afford the estate, meaning thelevel of detriment will satisfy the second element of constructive trust. Withthis in mind, Teresa has beneficial interest in Apple Manor due to constructivetrust being establish. With Teresa establishing beneficial interest, she has aproprietary interest in Apple Manor meaning she will have an overridinginterest under s.
29(2)(a)(ii) The LRA 200220 whichprotects those who are not registered on the land. Furthermore, Teresa mustshow she has an equitable property right for her to be successful, ashighlighted in Ainsworth.21In this scenario, Teresa has an overriding interest as Teresa was in actualoccupation and that if someone was to come and inspect the estate, it would beobvious that Teresa is occupying the resident.
This was highlighted in the Williams & Glyn’s Bank v Boland22where it stated that the beneficial interest was overriding due to heractual occupation and because of this, the bank was unable to repossess theproperty, meaning that Teresa has an overriding interest. YourMoney mortgageswill be unable to repossess Apple Manor. In addition, with Theresa having abeneficial interest in the property, she in fact a trust, satisfying what wassaid in the Ainsworth23case. YourMoney Mortgages repossessing Mushroom Cottage Assessing the situation of YourMoney repossessing MushroomCottage, Teresa is not the registered proprietor of the land as it is jointlyheld by both Benedetta and Jacopina. The issue her is whether she hasbeneficial interest in Mushroom Cottage. As highlighted above, Teresa will needto establish beneficial interest. This is illustrated through her commonintention which resulted in a detriment.
With Teresa contributing 1/3 of thepurchase price, it illustrated her common intention, where this can besupported in the Lloyds Bank v Rosset24case, as a contribution to thepurchase price can be sufficient. The contribution of the price can also beseen as a detriment to Teresa meaning she satisfies all elements ofconstructive trust, establishing she has beneficial interest in MushroomCottage. However, s.2 LPA 192525can be applied, where it states that it is capable to overreach a beneficial interest undera trust of land.
The case of City ofLondon Building Society v Flegg26can be similarly compared to Teresa’s situation as the defendant claimedher beneficial interest was overriding due to her contribution to the purchaseprice in addition to her having actual occupation at the time the mortgage wastaken out. The House of Lord held that the beneficial interest was in factoverreached as when the mortgage was taken out, there were two trustees thatwere present. When applying this to the facts, even though Teresa has abeneficial interest, her interest will ultimately be overreached, as to showthat she has an overriding interest, she must be in actual occupation ofMushroom Cottage. With this not being the case, Teresa will be unable to resistrepossession. If somehow Teresa is able to prove that she is in actualoccupation, with both trustees being present at the time the mortgage was takenout, it overreached Teresa’s beneficial interest meaning she will be unable toprevent YourMoney mortgage from repossessing. YourMoney Mortgages Repossessing Blackberry Lodge Blackberry Lodge was created as a joint tenancy between Teresa andJacopina.
However, due to Teresa’s significant contribution to BlackberryLodge, it can be said that they have created a tenancy in common as Teresa hasinvested more than Jacopina. The fact that she is a registered proprietor, aswell as her knowledge of the mortgage placed on the estate, it strengthensYourMoney’s case on repossessing Blackberry Lodge. In advising Teresa, she can try and rely on s.
36 AJA 1970.27From this, Teresa can try to ‘adjourn the proceedings’,28and ‘suspend execution of the judgement or order, or postpone the date fordelivery of possession.’29This means that Teresa will be able to have time to try and pay the debt owedto YourMoney mortgage, this could come in the form of selling the estate, asshown in Royal Trust Co of Canada vMarkham,30but Teresa will have to take into consideration the time given by the court.What is deemed reasonable was established in Gloucester BS v Norgan31where the full period of the mortgage is seen as a reasonable time frame.
However, we need to establish whether she will be able to sell theestate as even though she is a registered title holder, Teresa will require asignature from Jacopina to in order for the sale of the estate to go through.If Jacopina decided to not proceed with the sale, then Teresa will not be ableto sell Blackberry Lodge, but with the provision of s.14 TOLATA 1996, Teresacan seek an order from the court to allow the order of sale to proceed.
When the estate has eventually been sold, the proceeds made fromthe sale will go towards the repayment of the sum owed to YourMoney and theremainder of the money will be split between the beneficiaries in relation tothe beneficial interest acquired from the estate. If the sale goes through byvirtue of severance, this can either be expressed in a notice in writing,32or by mutual agreement, as highlighted in Williamsv Hensman,33and from looking at the facts, it is not clear whether a TR1 form has beencompleted or whether there was a mutual agreement or a written of notice. Itwould be difficult to establish the share of the profit. But assuming thoserequirements have been met, Teresa’s beneficial interest for Blackberry Lodgeis two thirds. This means that Teresa would receive 66% of the profit made fromthe sale of the house.
The Kernott34case highlights the quantification aspect as to how much the beneficiariesshould receive and this is determined through their financial contributions.Teresa could establish a common intention under the constructive trust meaningshe could rebut the 50/50 presumption if Jacopina disagrees with the 33% thatshe will be receiving. Her position if the repossession goes aheadIn accordance with the repossession of Mushroom Cottage, Teresacan invoke s.36 AJA 197035to receive a court order to halt the proceedings of the repossession. This isso that she is able to apply to the high court for an order of sale to begranted. It would be beneficial to Teresa if she was to sell the estate as itwould be rid of her burden over Mushroom Cottage. With Blackberry Lodge, if the repossession was to go ahead, Teresawould also have to sell the estate to in order to clear the outstanding amountarisen from the mortgage. Once the money has been used to pay off the debt, themoney remaining will be for her to use personally.
1 s.75 LandRegistration Act 20022 s.15 of theLimitation Act 19803 ibid4 s.17 LimitationAct 19805 (1800) 5 App.Cas. 2736 ibid7 (1979) 38 P.& C.R.
4528 (1983) 45 P.& C.R. 2359 2003 1 A.
C. 41910 Land RegistrationAct 192511 Land RegistrationAct 200212 ibid13 1958 1 Q.B. 15914 ibid15 s.17 LimitationAct 198016 ibid17 1971 A.C. 88618 1991 1 A.
C. 10719 1986 Ch. 63820 Land RegistrationAct 200221 1965 3 WLR 1 22 1981 A.C. 48723 1965 3 WLR 124 1991 1 A.
C. 10725 s.2 Law ofProperty Act 192526 1988 A.C. 5427 s.
36 AJA 197028 ibid (2)(a)29 ibid (2)(b)30 1975 3 All ER43331 1996 2 FLR 25732 s.35(2) LPA33 (1861) 70 E.R. 862.34 2012 1 A.
C. 77635 s.36 AJA 1970