To advise Reggie, it is necessary to look at the law of adverse possession. Adverse possession is actual possession in the absence of possession by the rightful owner, and without lawful title. In adverse possession, no action can be brought by a person to recover land more than twelve years from the date on which the right accrued. 1 Once twelve years past, the owner will lose both right to sue and his title to the property,2 as time will start to run against the prior owner only once he had been disposed or has discontinued possession3 and when adverse possession has been taken by another person.
However, the law will be changed after the Land Registration Act 2002 (not yet in force) where section 96 of Land Registration Act 2002 which suspend the operation of section 15 and section 17 of the Limitation Act 1980. In this case, the island and the land on the shore will be treated as registered land. When Phil sold the land on the shore to his neighbour, Amanda, in 1970, the time starts then and Amanda have the right and interest to the land. However, the island would remain in Phil’s possession as of 1965.
In 1975, the time of adverse possession would start to run, when Reggie, without Amanda’s agreement or consent, decided to move in and use the land for himself. 5 Reggie’s act where he began charging tourist for day fishing permits from the shore of the island is ‘inconsistent’ to Phil’s initial act,6 as well as when Reggie parked his caravan on Amanda’s land and started living there, these are clear signs of his intention to possess the land. 7 Furthermore, when Reggie began keeping horses to hire out to the tourists; he is again, acting inconsistent to Amanda’s original act.
In 1977, Reggie built a fence to keep the horses from straying, ‘fencing’ the land is a good indicator and the ‘strongest possible evidence’ of possession. 9 However, it is not conclusive, where the fence had been erected to keep the horses from straying instead of keeping other people out cannot be held to be a clear evidence of the necessary animus possidendi. 10 Yet, what is important here is the intention of Reggie that his horses are able to make full use of what Reggie plainly regarded as his land.
11 An intention to acquire ownership of the property is not required but Reggie’s intention to possess it would suffice. 12 Apparently, from the information given, it is obvious that Reggie has the intention to possess the land, so, there is no argument here. In 1978, when Amanda confronted Reggie, this shows that the adverse had stopped because Amanda has regained the possession. When Reggie agreed to quit as soon as Amanda demanded possession in the future, this shows that Amanda is giving a ‘licence’ to give permission to Reggie to stay on the land until she claim possession in the future.
The permission to remain given by Amanda had stopped the time running against it and from that date, Reggie was in possession as a licensee of Amanda. 13 When Reggie agreed to quit as soon as Amanda order possession in the future is a sign of him accepting the licence when he was open to reject it. 14 The permission period given to Reggie from Amanda was until she demanded possession in the future. Thus, it is clear that adverse possession will start again at the termination of that period. 15 However, in 1979, a new adverse possession time starts when Reggie extended the fence and put a lock on the gate across the dirt road.
Reggie’s action is enough to constitute dispossession of Amanda and therefore, amount to intention to possess. If the point on adverse fails, Reggie can then argue on overriding interest. From above, it can be seen that Reggie is a licensee; hence, he has no interest in the land. However, Reggie can argue that since he has exclusive possession of the property, therefore he is not a licensee. This point is quite crucial because if Reggie has no interest in the property, he won’t have the overriding interest for the land.
A person who is in actual occupation but has no right known to law or equity can get no benefit17, nor can a person who has rights but who is not in occupation. 18 Thus, Reggie can argue that even though Amanda has an interest to the land but she doesn’t have the overriding interest as she is not in possession but on the other hand, Reggie has overriding interest. Also, Reggie can argue in Article 8 of the Human Rights 1998 that the land is his home as he had began living there. Even so, this argument may not be strong enough to help Reggie win the title of the property.
In conclusion, Reggie would be able to claim the land if he can prove that in 1979, there was a ‘new’ adverse possession and the 12 years of limitation period had passed (1979-1993) for Amanda. As for the island, Reggie would have title to it as although Phil may still have island and land on the shore under his name in the Land Registry, he could not bring an action to recover the property as the twelve years from the date (1965 – 1993) on which the right of action is over. Therefore, the island would have been adverse to Reggie, and so is the land on the shore.