owner S10 Limitations Act - AP against person in actual possession – Adverse possession can only be against the person in ACTUAL POSSESSION. If adverse possession is proven, then it is against the person in current actual possession i.e. If a lessee has possession, and a person adverse possession then it against the lessee not the lessor What constitutes adverse possession? The claimant must prove: Factual, or actual possession (corpus possessionis), Intention to possess (animus possidendi); and Possession must be adverse Actual Possession: must be open, not secret, peaceful, not by force, and adverse, not by consent of the true owner. The owner and person claiming can’t both be in possession at same time Exclusion - an appropriate degree of physical control of the land to the exclusion of others. Acts of possession will depend on type of land. – degree of control required to show actual Depends on type of land - possession depends on type of land Redhouse Farms v Catchpole – - indicative of whether person is in actual Purpose of possession possession (e.g. use must be more than just temporary and limited) Leigh – v Jack Cultivation, fencing, enclosure, acts which are beneficial to the land acts which focus on excluding others, signs, acts that are consistent with ownership of land, improvements, grazing. intention to possess the land to the exclusion of others Intention to possess – Exclude the rightful Trespasser must show clear positive actions, slight acts by the true owner are enough Possession must be adverse NEXT PAGE – Adverse without consent – Not Temporary - Acts must not be temporary. Must be fairly extensive and ongoing.
owner S10 – Limitations Act - AP against person in actual possession Adverse possession can only be against the person in ACTUAL POSSESSION. If adverse possession is proven, then it is against the person in current actual possession i.e. If a lessee has possession, and a person adverse possession then it against the lessee not the lessor What constitutes adverse possession? The claimant must prove: Factual, or actual possession (corpus possessionis), Intention to possess (animus possidendi); and Possession must be adverse Actual Possession: must be open, not secret, peaceful, not by force, and adverse, not by consent of the true owner. The owner and person claiming can’t both be in possession at same time Exclusion - an appropriate degree of physical control of the land to the exclusion of others. Acts of possession – will depend on type of land. Depends on type of land - degree of control required to show actual possession depends on type of land – Redhouse Farms v Catchpole Purpose of possession - indicative of whether person is in actual possession (e.g. use must be more than just temporary and limited) – Leigh v Jack Cultivation, fencing, enclosure, acts which are beneficial to the land acts which focus on excluding others, signs, acts that are consistent with ownership of land, improvements, grazing. Intention to possess – intention to possess the land to the exclusion of others Exclude the rightful Trespasser must show clear positive actions, slight acts by the true owner are enough Possession must be adverse – NEXT PAGE Adverse – without consent Not Temporary - Acts must not be temporary. Must be fairly extensive and ongoing.