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Adverse possession, Art 1 and acknowledgements


Ofulue & Anor v Bossert [2008] EWCA Civ 7 deals with an adverse possession case prior to the Land Registration Act 2002.

Some notes:

The (then) law on adverse possession does not breach Art.1 Protocol 1, Pye v United Kingdom [2007] ECHR 44302/02 applied. In order not to fall under the Pye margin of appreciation, a case’s results would have to be so anomalous as to render the legislation unacceptable.

Having made a defence to possession proceedings that the occupant is a tenant does not prevent the occupant from having the requisite intention to possess. A person believing himself to be a tenant may still be in adverse possession. The necessary intention is an intention to possess, not necessarily an intention to exclude the paper owner,  Lodge v Wakefield MCC [1995] 2 EGLR 124.

A defence that the occupant is a tenant does not constitute an acknowledgement of title for the purposes of s.29 Limitation Act 1980 in that, although there may be an acceptance of title, there is not an acknowledgement that the title holder has a right to possession. Such a defence does not ‘re-start’ the 12 year period.

Also worth reading for an interesting discussion on the admissibility of  ‘without prejudice’ correspondence at the end of the judgment.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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