Adverse possession claims brought by squatters are liable to be defeated on various grounds. One important check that landowners should make, when opposing a squatter’s claim, is whether the squatter has acknowledged the landowner’s title to the land.
Any such acknowledgement will have stopped the clock from ticking and started time running afresh: see section 29(2) of the Limitation Act 1980. To be effective, the acknowledgement must be addressed to the landowner, or his agent, and must be made in writing. It must also be signed by the squatter, or its agent, and must be given while the clock is still ticking. The paper owner’s rights cannot be revived by an acknowledgement made after the paper title has been extinguished.
The issue in Ofulue v Bossert [2009] UKHL 16; [2009] PLSCS 86 was whether documents that came into existence in previous possession proceedings between the parties constituted effective acknowledgements of title. No adverse possession claim was then made, because the occupiers had not then been in possession for the requisite period. However, the possession proceedings were dismissed, as a result of the landowner’s failure to pursue them. Consequently, time continued to run against the landowner and, unless the documents in question had stopped the clock from ticking, time had now run out.
The House of Lords upheld the squatter’s claim. Interestingly, the lords disapproved of the Court of Appeal’s conclusion that section 29 requires an acknowledgement of a right to immediate possession and that the squatter’s defence to the earlier possession proceedings (in which the squatter and her father had claimed to be the lawful tenants) constituted a denial of that right. They ruled that the squatter’s claim constituted a clear acknowledgement of the landowner’s title, but that it was made more than 12 years previously. Consequently, the landowner was unable to rely upon it.
The landowner also relied upon a without prejudice letter, offering to buy the property, dated within twelve years of the commencement of the current proceedings. The letter did not contain an admission, in so many words, that the landowner was the rightful owner of the property, but the House of Lords accepted that the offer to buy the property also constituted an acknowledgement of the landowner’s title.
Unfortunately for the landowner, however, the lords ruled, by a majority, that the letter was written in a genuine attempt to settle the original possession proceedings. Both sets of proceedings involved the same parties and were closely connected, because, in each case, the parties were disputing whether the squatter had any interest in, or right to possession of, the property. Section 29 of the 1980 Act did not trump public policy, which protects what is said in without prejudice negotiations. Consequently, the letter was not admissible in evidence in the current proceedings.
The case reminds us, once again, that landowners risk losing their land to squatters if they go to sleep on a claim.
Allyson Colby is a property law consultant