The Legal Doctrine of Adverse Possession: Oliver Wendell Holmes - Essay Example

M]an, like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, can't be displaced without cutting at his life." [1] ~ Justice Oliver Wendell Holmes U.S. Supreme Court Justice Oliver Wendell Holmes wrote those appropriate words on the subject of adverse possession. Holmes seemed to be of the opinion that not only was adverse possession a fact of life, but once the time the squatter had stayed on the owner’s land had tolled, like the tree whose roots had grown deep into the earth, it would be next to impossible to move him from the land both physically and, under the doctrine of adverse possession, also legally. This term of art shows the utter relative and transitory nature of land ownership in Anglo-American law; that no person can “own” land in perpetuity. The legal doctrine of adverse possession is an old and fitting concept of English property law recognizable layman and lawyer alike and recently revised and codified under English law in the Land Registration Act. [2] Nevertheless, the word ‘adverse’ has caused much confusion in property law in modern times due to the relative nature of property ownership in the Anglo-American legal tradition. The word, ‘adverse’ seems to suggest that the squatter ought to in some way be antagonistic, forceful or hostile towards the lawful land owner of the property. The House of Lords as of recent times has made it very clear that this view is no longer axiomatic. The test for a valid case of adverse possession is this—Has the trespasser, unlawful tenant (= squatter) possessed the land for the necessary period of time using the commonplace denotation of that word? The case that will be used as a case study here is J A Pye v Graham (2002). In this paper I will explore the legal proceedings of this important case in the context the question—is landownership relative? Lord Browne-Wilkinson delivered the chief argument for this case. [3] In brief, Pye was the legal owner of the land and Graham was the unlawful tenant (squatter), or adverse possessor. The parcel of land in question was very valuable agricultural land in the Berkshire area that was prime for growth and expansion then, but now valued in the tens of millions of pounds. As early as 1977 it was believed by commercial developers that the land would definitely have profitable expansion potential but rather than leave the land unoccupied Graham (who owned an adjoining property to Pye) was permitted to reside on it for grazing. In 1983 Graham was granted a license to use the land belonging to Pye. The land contract was characterize as a license and although it could have been called a tenancy would have not been afforded the defense of agricultural tenancies. Following the first written agreement giving grazing rights to Graham came to its conclusion no additional agreement was arranged between the parties. For that reason Pye was told that it would be more reasonable to reclaim the land due to the lands’ potential redevelopment value. Pye demanded Graham to vacate but he refused to comply. Graham instead remained in possession of the land using it for farming. Pye sat on his rights until April 1998 when ownership was claimed. Graham claimed that he fulfilled the 12 years requirement of occupying the land by adverse possession. The most significant particulars relied on by the House of Lords in determining that Graham clearly established adverse possession were as follows: In addition to the gates giving access, all the borders of the land in question were divided from the adjacent land by hedges. (See Pye paragraph 7) On one border there is a gate which was usually locked with a key and padlock in the possession of Graham. (See Pye paragraph 8) Graham owned and farmed the adjoining piece of land. (See paragraph 9) From 1 January 1984 when the grazing license came to an end pending the claim for ownership Graham openly and with hostile intent possessed the land. Furthermore, Graham not only used the land graze his animals, this was all done without Pyes consent. (See Pye paragraph 10) The border hedges were cut annually and the property line fences and ditches were kept up by Graham. (See Pye paragraph 11) Several witnesses gave evidence that they thought the disputed land was part of the Grahams’ estate. (See Pye paragraph 12) A surveyor who was Pyes expert witness, was cross-examined, and could not come up with any other acts Graham could have done to demonstrate that he was occupying the disputed land. (See Pye paragraph 13) Graham stated that he would have gladly continued formal agreements to use the land, but was never presented with a contract by Pye. He therefore continued to occupy and use the land exclusive Pyes ownership which was open to the entire world. (See Pye paragraph 14) At the initial trial Neuberger J gave a lackluster judgment in favor of Graham because he felt compelled to follow the strict tenants of the 12 year adverse possession rule which Graham had clearly fulfilled. [4] He was reluctant for the reason that the end result would be that the Grahams would be capable using a section of land that they didn’t lawfully own, which they had used for years to graze their animals on for free and now had a complete windfall since the disputed property was now worth a fortune, for the simple reason that Pye had unintentionally overlooked the situation after the time of adverse possession had tolled. The Court of Appeal reversed the lower courts opinion and ruled on behalf of Pye. [5] Their reasoning was that Graham’s possession of the land was made possible only by the 1982 and 1983 licenses he was granted by Pye pursuant to the agreement to use the land for grazing of his animals. On appeal by Graham to the House of Lords reversed and remanded the Court of Appeals judgment and restored the original decree from the initial opinion of Neuberger J. Although Mr Graham the farmer died in a terrible shooting mishap before the trial commenced, his widow who inherited the disputed property in question continued the cause of action. The period for the lawful land owner to reclaim his land is 12 years from the date on which the right of action accrued (s15(1)). Schedule 1 establishes the time that right of action began to toll: “Schedule 1, paragraph 1: Where the person bringing an action to recover land has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated has having accrued on the date of the dispossession or discontinuance.   Schedule 1, paragraph 8(1): No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as adverse possession); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.” [6] The court in its judgment and to limited pointless repetition uses the phrase ‘adverse possession’ as a term or art to explain the dispute between Pye and Graham. English legal precedent dating back to ancient times indicated that there had been a doctrine of adverse possession but this had caused difficulties and was formally ended in 1833. A case the House of Lords found precedent in the Pye case was the case of Leigh v Jack (1879) [7]. Nevertheless, the English courts refused to reinstate adverse possession as a statutory phrase until the Limitation Act 1939: In English law the statute of adverse possession was repealed in 1883 due to mounting difficulties and the seeming unfair judgments that resulted in following its dictates. Since 1833 the phrase adverse possession did not come into view in the statues until it was re-submitted by the Limitation Act 1939. Therefore is seems clear that citations to adverse possession in the 1939 and 1980 Acts did not restore by other means after over 100 years since the ancient usages of adverse possession were applicable before 1833 [8] Numerous problems with these sections are due to a cognisant or hidden belief that sequentially for a squatter to secure title by lapse of time (tolling the adverse possession statue) Graham has to act in an adverse or in a forceful manner against the legal title owner’s interest in the disputed property. The adverse possessor has to oust the paper owner in order to deprive him; that he has to be set to keep out the whole world as well as the true owner. The enquiry is merely whether the defendant unlawful tenant has dispossessed the rightful owner by leaving ordinary possession of the land for the necessary period exclusive of the permission of the owner. [9] According to Lord Browne-Wilkinson the are two elements to possession are: (i) factual possession and (ii) intention to possess. If there is no intent on the squatter’s part, then there is no adverse possession. Judge Browne-Wilkinson continues—“[T]here has always, both in Roman law and in common law, been a requirement to show an intention to possess in addition to objective acts of physical possession. Such intention may be, and frequently is, deduced from the physical acts themselves. But there is no doubt in my judgment that there are two separate elements in legal possession. So far as English law is concerned intention as a separate element is obviously necessary.” [10] According to Powell v McFarlane (1977) actual possession was enough evidence to prove actual physical possession of the disputed land. The requisite obligation is that possession must be a single and [exclusive] possession, despite the fact that there can be a unilateral possession of the disputed land that can be extended by others either jointly or severally. The central issue then becomes what steps comprise enough exclusive physical occupation must depend on the conditions, in exacting the nature of the land and the mode in which the land of that nature is usually enjoyed. It must be remembered that the adverse possess must have factual possession of the disputed land against every one else in the whole world. [11] Lord Browne-Wilkinson agreed with the lower court that Graham had satisfied all of the elements of adverse possession: (1) Graham occupied the disputed land and it remained in their exclusive physical control; (2) Pye, the legal owner, was not physically on the land; (3) hedges segregated the land from the adjacent properties and was clear to the whole world; (4) Graham had a key to the gate that controlled ingress/egress to the property; (5) The adjoining property (Manor Farms) was maintained in combination with the disputed land as if they owned it. Thus, Lord Browne-Wilkinson had to render the judgment that they were clearly in factual possession. [12] In addressing the part of adverse possession that deals with seizing or intention to possess, Lord Browne-Wilkinson established a number of formerly recognized conclusions of law including: The purpose requisite of the squatter is to seize not to own. The Powell case was controlling in that the court will carefully look at the intent of the squatter to determine if he fulfilled the requirements of adverse possession. [13] It is not requisite for the acts of the unlawful tenant to be incompatible with the intentions of the landowner (as had beforehand been recommended in Leigh v Jack) [14]. The idea that the adequacy of the possession can depend on the purpose not of the unlawful resident but of the factual owner is unorthodox and incorrect. [15] The fact state that Graham was willing and able to pay rent for the disputed land, but that Pye never made an offer to him. There is no issue in this case between a unlawful tenant being prepared to pay the legal owner for grazing rights to his land that he was presently occupying. On appeal Pye presented arguments relying on the Human Rights Act 1998 and Article 1 of the First Protocol of the Convention was controlling to the facts of his case. The House of Lords disagreed in that by the time the case was heard by them (2002), it was two years after the statute would have been effective and there was no grandfather clause or stipulation that the Act have a retroactive effect. Despite the fact that the House of Lords agreed that the Grahams had acted in good faith, nevertheless, throughout their judgment in Pye v Graham, the Lordships affirmed the unfair result of their opinion. While conceding that the Grahams did nothing illegal in the case at bar, they had only maintained possession of the disputed land and was willing to pay for the grazing rights if requested to do so. However, the Pyes sat on their rights and allowed the adverse possession statute of 12 years to toll (lapse) thus allowing the Grahams to enjoyed the actual ownership rights of the land without payment for this entire dozen years. To add insult to injury the Grahams were then granted clear title to this now very valuable Berkshire land without and requirement to pay the Pyes any compensation. [16] In conclusion, the Land Registration Act 2002 had greatly reformed the problems of adverse possession so that the end result will be most just especially in favor of the paper owner of the disputed land. [17] The case of Pye v Graham, which two of the three courts agreed had an unjust result in granting Graham the land of Pye and the Land Registration Act 2002 was designed to alleviate future unjust results as those suffered by Mr Pye. Endnotes 1. Oliver Wendell Holmes statement on adverse possession quoted in Jeffrey Evans Stake, ‘An Uneasy Case for Adverse Possession,’ Georgetown Law Journal, Aug. 2001, p. 1. http://www.findarticles.com/p/articles/mi_qa3805/is_200108/ai_n8999063/pg_3. See generally Baird, Douglas G. (1983), ‘Notice Filing and the Problems of Ostensible Ownership’, 12 Journal of Legal Studies, 53-67. 2. For a complete version of the Land Registration Act 2002, see webite citation: http://www.opsi.gov.uk/ACTS/acts2002/20020009.htm. See generally Bouchkaert, Boudewijn. And Depoorter, Ben, W.F., (1999) ‘1200 Adverse Possession – Title Systems,’ Center for Advanced Studies in Law and Economic, University of Ghent. 3. All citations unless otherwise clearly delineated will be made to the case: Pye v Graham, [2002] UKHL 30 and cited according to the paragraph number—Paragraps nos. 1-56]. Lord Browne-Wilkinson’s opening oration outlining the background of this dispute can be found in paragraphs 1-5. The complete text of this case can be found online at: http://www.publications.parliament.uk/pa/ld200102/ldjudgmt/jd020704/graham-1.htm 4. At trial Neuberger J ([2000] Ch 676) held that the defendants had established title by possession although the Lord stated that this decision was made reluctantly under the unforgiving constraints of the adverse possession statutes. See Pye v Graham, [2002] UKHL 30, para. 4. See generally Baird, Douglas G. (1983), ‘Information, Uncertainty, and the Transfer of Property’, 13 Journal of Legal Studies, 229-320. 5. Neuberger J decision was reversed by the Court of Appeal [2001] Ch 804 (Mummery, Keene LJJ and Sir Martin Nourse). See Pye v Graham, [2002] UKHL 30, para. 5. See generally Bowles, Roger A. and Phillis, Jennifer (1997), ‘Solicitors’ Renumeration: A Critique of Recent Developments in Conveyancing’, 40 Modern Law Review, 639-650. 6. See The Limitation Act 1980, Sec. 1, cited in Pye v Graham, [2002] UKHL 30, para. 25. See generally Anderson, Terry L. and Lueck, Dean (1992), ‘Land Tenure and Agricultural Productivity on Indian Reservations’, 35 Journal of Law and Economics, 427-454. 7. See generally Leigh v Jack (1879) 5 Ex. D 264 and Littledale v Liverpool College [1900] 1 Ch 19. 8. See Pye v Graham, [2002] UKHL 30, para. 33. See generally Callahan, C. (1961), Adverse Possession, Columbus, Ohio State University Press. 9. See Pye v Graham, [2002] UKHL 30, para. 36. See generally Callahan, C. (1961), Adverse Possession, Columbus, Ohio State University Press. 10. See Pye v Graham, [2002] UKHL 30, para. 40. See generally Callahan, C. (1961), Adverse Possession, Columbus, Ohio State University Press. 11. See Pye v Graham, [2002] UKHL 30, para. 10: for the language citing exclusive possession must be against ‘whole world’, and para. 36: for citations to the case, Powell v McFarlane (1977) 38 P&CR 452 at 470, on adverse possession. 12. See Pye v Graham, [2002] UKHL 30, para. 41. 13. See Pye v Graham, [2002] UKHL 30, para. 43. 14. Leigh v Jack (1879) 5 Ex. D 264 and Littledale v Liverpool College [1900] 1 Ch 19. 15. See Pye v Graham, [2002] UKHL 30, para. 45. See generally Kennedy, Duncan(1981), ‘Cost-Benefit of Entitlement Problems: A Critique’, 33 Stanford Law Review, 387-445. 16. See Lord Bingham judgment in Pye v Graham, [2002] UKHL 30, para. 2. 17. See Land Registration Act 2002, Ibid. See generally Miceli, Thomas J. (1997), Economics of the Law, New York and Oxford, Oxford University Press, 1997; See Pye v Graham, [2002] UKHL 30, schedule 6, para. 5. See generally Kennedy, Duncan(1981), ‘Cost-Benefit of Entitlement Problems: A Critique’, 33 Stanford Law Review, 387-445 and Miceli, Thomas J. (1997), Economics of the Law, New York and Oxford, Oxford University Press, 1997. References Anderson, Terry L. and Lueck, Dean (1992), ‘Land Tenure and Agricultural Productivity on Indian Reservations’, 35 Journal of Law and Economics, 427-454. Baird, Douglas G. (1983), ‘Notice Filing and the Problems of Ostensible Ownership’, 12 Journal of Legal Studies, 53-67. Baird, Douglas G. (1983), ‘Information, Uncertainty, and the Transfer of Property’, 13 Journal of Legal Studies, 229-320. Bowles, Roger A. and Phillis, Jennifer (1997), ‘Solicitors’ Renumeration: A Critique of Recent Developments in Conveyancing’, 40 Modern Law Review, 639-650. Bouchkaert, Boudewijn. And Depoorter, Ben, W.F., (1999) ‘1200 Adverse Possession – Title Systems,’ Center for Advanced Studies in Law and Economic, University of Ghent. Callahan, C. (1961), Adverse Possession, Columbus, Ohio State University Press. Kennedy, Duncan(1981), ‘Cost-Benefit of Entitlement Problems: A Critique’, 33 Stanford Law Review, 387-445. Miceli, Thomas J. (1997), Economics of the Law, New York and Oxford, Oxford University Press, 1997. Miceli, Thomas J., Sirmans, C.F. and Turnbull, G.K. (1998), ‘Title Assurance and Incentives for Efficient Land Use’, 6(3), European Journal of Law and Economics, 217-227. Read More