Property Law Cases and Materials

There is adverse possession now, so when can Baden Dentists fully call this land their own? Also is there dispossession, which is one of the requirements as there is no discontinuance? Yes because Baden Dentists have excluded access to the owner and as required in Wallis (1975)13 have altered the land so as to restrict development by RB Ltd. This car park is legally very much different to Henry Associates car park. According to the Limitation Act 198014 the time begins from "when O becomes aware or ought to have become aware" of the problem15.

Dispossession occurred in 1994 and according to the 1980 Act there must be 12 years possession before S can apply for a title16. After the 12 years O cannot recover his/her land. Baden Dentists cannot get the title for this land until 2006. Relativity of title must be used to establish which title is better. In this case it is relative/possessory title verses absolute owners title. RB Ltd. has to prove his right to possession of the property is better than S's. The letter that RB Ltd. sent in December 2000 also included a copy of the registered title.

As with the letter they sent in 1989, this is of no significance without a Court Order17. To conclude I will give advise to RB Ltd. and Baden Dentists in the light of the adverse possession, which has not yet been completed. Firstly RB Ltd. has a number of options that could give them the positive outcome that they want. As the 12 years are not yet up RB Ltd. has a right from the Limitation Act 1980 to recover the land that Baden Dentists have in their possession. They are the registered owners and have a future purpose for the land so have not abandoned it.

If Baden Dentists acknowledge their letter then the 12 years time will stop running and so safeguard RB Ltd. 's claim18. After acknowledgement of RB Ltd. 's letter19, the Court will hold that there is no longer any intention20. What's more RB Ltd. can go to Court and get a Court Order to recover the land21. In addition RB Ltd. has one extra option if they wish. If Baden Dentists acknowledge their claim, then RB Ltd. can allow them to stay on the land through the granting of a licence which, if accepted, will stop the time running and keep the land in use and so protect it from future possession by other persons.

Obviously RB Ltd. can definitely get their land back if they act now and they have up until 2006 to take action. Now for Baden Dentists, whose options are more limited. They have 5 more years to wait before they can gain any title over this land22. The letter they received from RB Ltd. is not important, nevertheless if they acknowledge the letter they surrender all chances of gaining the title of the land. If the 12 years pass then RB Ltd. will have no rights in the land any longer23.

Henry Associates made a false statement of fact or an actionable misrepresentation, which induced the contract for the sale of the property to Baden Dentists. Baden Dentists cannot get the contract rescinded, as it is impossible to put both parties back to their pre-contractual positions, so they have the right to seek damages for fraudulent misrepresentation through the tort of deceit in the common law24. If the 12 years pass, then because RB Ltd. had a registered title, Baden Dentists get control of the land in a trust, managed for them by RB Ltd. who must protect the beneficiaries and also Baden Dentists get the untitle registration.

This is an equitable right described as an overriding interest and binds all third parties. My primary source Roger J. Smith25 believes "that although the law governing possession is functioning satisfactorily at present, further elucidation is required for animus possidendi". This entire area of the law is extremely controversial and "gives rise to a basic paradox in the law" by giving a trespasser on property a right to it and thus extinguishing the original innocent owners title.

BIBLIOGRAPHY

Property Law by Roger J. Smith. Third Edition. 2000 Property Law Cases and Materials by Roger J. Smith. First Edition. 2000 Cases and Materials in Land Law by Hilary Lim and Katie Green. First Edition. 1992 The Law of Property by Lawson and Rudden. Second Edition. 1982 Understanding Property Law by W. T. Murphy and S. Roberts. Third Edition. 1998 Elements of Land Law by K. Gray. First Edition. 1989 Land Law Textbook by Gordon Henry. Sixteenth Edition. 1994-1995 Introduction to Land Law by J. G. Riddall. 1993