The given case lay emphasis on key topics such
as adverse possession, formalities of land contracts and proprietary estoppel.
First issue is whether, Donald, the registered proprietor of Cuckooland, is
able to claim ownership over the adversely possessed land strip. Second issue
is whether there is a possibility of compelling Theresa to buy Westwing. The
arguments are laid out in two sections for each issue.
A) First and foremost, adverse possession is
called ‘squatting’ where individuals obtain ownership rights over land,
informally. Since Land Registration Act 20021,
it has been quite difficult to obtain ownership rights over registered land.
Donald came in to possession over Cuckooland in 2006 and he noticed that
previous owner Ronald had not utilised the one-meter width strip of land next
to Cuckooland. Donald started using the land strip since 2007 by planting
bushes in order to deter Michael’s cats from coming in. After consulting his
surveyor, Vladimir, Donald found out that the land strip legally belonged to
Michael, the neighbour. The arguments whether Donald has a possibility of
claiming ownership over the land strip are as follows.
As of 13th October 2003, the date
which LRA 2002 came in to force, adverse possessor may apply to the registrar
to claim proprietorship. The strip of land is a registered title and so, the
Limitation Act 1980 is irrelevant. This is because s96 of LRA 2002 clearly
states that the Limitation Act is not to be applied for registered land. Thus,
Donald is eligible to apply for registered proprietorship under Schedule 6 of
LRA 2002. The adverse possessor is required to possess the land for at least
ten years ending on the date of making the application2.
It is not a limitation period but a condition. Thereafter, Donald is required
to prove basic principles of adverse possession which were established in J A Pye (Oxford) Ltd v Graham3.
Lord Browne-Wilkinson held that intention to possess, factual possession should
be proven by the adverse possessor in order to claim ownership over land. It
was further approved in Powell v McFarlane4
where Slade J stated “degree of occupation or
physical control, coupled with the requisite intention…. would entitle a person
to maintain an action of trespass over land”. Donald is able to prove intention
to possess and factual possession over the strip of land by asserting that
bushes were planted to make use of the fertile land and to keep outsiders away.
Factual possession is established by the fact that bushes act as a fence or a
gate to the outside world, specially to Michael’s cats. Intention to possess or
animus possidendi can be attested by ten years of occupying the land as
Contrastingly, courts may raise
questions whether occupation is merely adequate to claim adverse possession. A
shining example would be Buckinghamshire CC
where Hoffmann LJ said, “what is required is ‘not an intention to own or even
an intention to acquire ownership but an intention to possess”. Hence, Donald
can argue that occupation alone is enough to prove intention to possess.
Further, Hounslow LBC v Minchinton6
proved that occupation and maintenance of the garden was sufficient intention
to claim adverse possession. Similarly, in London Borough of Lambeth V
the courts questioned the intention and the installation of padlocks
demonstrated the sufficient intention. Donald could illustrate that bushes
created a barrier to the outside world and his intentions were to occupy the
land. Furthermore, following the Blackburn case, Donald is fit to state that awareness
of the land belongs to another does not diminish the ability to claim
ownership through adverse possession, as long as Donald does not acknowledge
the true owner.
According to Zarb v Parry8,
if adverse possession is not interrupted for at least ten years, adverse
possessor may claim ownership. Assuming Michael has not attempted to repossess
the land, Donald has been successful, completing ten-uninterrupted-years of
adverse possession. Registrar will view Donald’s application to be qualified
and the application procedure will commence by serving a notice to the current
There will be three options available to Michael and namely, he may consent the
application, object the application or serve a counter-notice (with or without
an objection). The decision will depend on Michael’s response to the notice by
the Land Registry. If he chooses option one, Donald will claim ownership of the
land strip right away. If he chooses option two or three, Donald is required to
settle the objection by establishing the elements of adverse possession
discussed above. Since LRA 2002 favours true owners, Michael has two years to
repossess the land. However, if he fails to re-take the land for whatever
reason during the two-year period, Donald may reapply to be registered as the
proprietor. Ultimately, if Michael does not respond at all, he may lose the
registered title and Donald will claim legal ownership10.
If Michael choose option two or three, Donald may
still have a fighting chance on the grounds of exceptions listed in the Act11.
The exceptions are proprietary estoppel, entitlement to land due to other
reasons, or boundary issues. As the scenario does not reveal data regarding the
relationship between Michael and Donald, it is quite difficult to come to a
conclusion regarding the exceptions. Whether Michael allowed occupation over
the land strip on the grounds of proprietary estoppel, whether Donald has a
reason to be entitled, are unknown facts. Also, plans of Cuckooland, land strip
is not given. Therefore, it is hard to arrive at a decision, but Donald has a
high chance of claiming ownership on the grounds of boundary exception, if
Michael responds favourably. This is purely because, Donald thought the strip
of land was a boundary mark for Cuckooland at first.
B) Donald decided to sell the cottage located in
Westwing of Cuckooland. Theresa and Donald exchanged a string of emails
regarding the sale of the cottage. Chain of emails contained the terms,
attachment of an architectural drawing of Westwing with Donald’s signature and
the price of the cottage. One week later, Theresa made an oral offer for golden
curtains at £50. Arguments laid out elaborates whether Donald is capable of compelling
Theresa to buy the cottage and curtains, as agreed.
According to Golden Ocean Group Ltd v Salgaocar
Mining Industries PVT Ltd12,
a string of emails can constitute a valid contract under s4 of Statute of
Frauds 1677. Donald could argue that Theresa was bound by the emails. This is
mainly due to sending off the email with an attachment that included Donald’s
signature. Assuming Theresa signed her emails with her real signature or
nickname, Donald can argue that emails constituted a valid contract13.
Further, an email conversation could amount to a valid contract if the terms
and conditions are expressed. The case Green (liquidators of Stealth
Construction Ltd) v Ireland14
illustrates how the contract would have been enforceable if the terms were expressed
in the emails. Theresa offered to buy the cottage and Donald approved and replied
saying he agrees to the terms mentioned. Therefore, courts could assert that
the contract is in fact, enforceable and valid.
However, under Law of Property (Miscellaneous
Provisions) Act 198915,
a valid contract must be in writing, containing all the terms and it must be
signed by both parties, either on one document or two identical documents.
Donald has not followed the traditional way of enforcing a contract. Yet,
Donald could argue that the string of emails is saved on the electronic devices
and it can be printed to act as a written document. It would give effect as an enforceable contract since Donald’s
signature was included. Although, we do not know if Theresa included her
printed/typed signature or if she incorporated her signature at all. If she did
not do so, the contract is invalid. The effect of the s2 of 1989 Act is
merciless and if the contract does not comply with the section 2 requirements,
the contract is invalid16.
Furthermore, collateral contracts do not need to comply with s2 of 1989 Act.
They can be informal and orally conducted as long as the main contract is
formally constituted. Donald could be advised to follow up Record v Bell17
and sell the curtains for £50 as it was a collateral contract separated from
the main contract for Westwing. Nonetheless, the main contract itself did not
meet the s2 requirements and this results in an unenforceable collateral
contract. Consequently, courts will assert that Donald cannot compel Theresa to
buy the Westwing or curtains.
Although, Donald could persuade Theresa to buy
the Westwing along with the golden curtains for a total of £500,050 on the
grounds of proprietary estoppel. Donald could follow strong cases of
proprietary estoppel such as Yaxley v Gotts 2000 and argue that Theresa
agreed to buy Westwing and curtains. However, it is not a solid argument since
Donald has not suffered any detriment or made arrangements regarding the sale.
The doctrine of proprietary estoppel can be used but it is not explicitly
mentioned as an exception to section 2 under the 1989 Act. Therefore, in my
opinion, the contract is invalid.
Harcup, J. (1995). Green & Henderson:
Land Law. London: Sweet & Maxwell.
Joe Cursley, M. D. (2011). Land Law.
Basingstoke: Palgrave Macmillan.
1 LRA 2002
2 Schedule 6, paragraph 1 LRA 2002
32002 3 WLR 221
4(1977) 38 P & CR 452
5 CA 13 Feb 1989
6 CA 19 March 1997
7 CA 14 Jun 2001 EWCA Civ 912
8 CA 15 Nov 2001
9 Schedule 6, Paragraph 2 LRA 2002
10Baxter v Mannion 2011 1 WLR 1594
11 Schedule 6, Paragraph 5 LRA 2002
12 2011 2 All ER (Comm) 95
13 Mehta V J Pereira
Fernandez Sa: Chd 7 Apr 2006- A party can sign off a contract using first/last names,
combination of letters, or a pseudonym.
142011 EWHC 1305 (Ch)
15 LPMPA 1989
16Keay v Morris Homes (West Midlands) Ltd 2012 EWCA Civ 900, para 9,
per Rimer LJ:
17 1991 4 All ER 471