Fundamental concepts in the law of adverse possession: Powell v McFarlane

Powell v McFarlane ((1979) 38 P & CR 452) clarified a number of important aspects of the law of adverse possession. Powell lived on his grandfather’s farm (which later became his). The disputed land was next to the farm. McFarlane bought the disputed land but soon afterwards his work took him abroad for several years. Powell, aged 14, began to use the land to graze the family cow, used the land for shooting, repaired fences and kept a goat there. These activities were spaced out over many years. Powell sought a declaration to the effect that he had been in adverse possession for more than 12 years. Slade J rejected his claim on the grounds that the relevant actions were too trivial. The plaintiff was not in possession but simply took various profits (in the legal sense) from the land. The acts were too equivocal.

His judgment clarified a number of important issues. The central question was whether Powell had possession ‘in the ordinary sense of possession recognised as such by law’. (at 470).

1. there is a presumption that the owner of the paper title is in possession;

2. anyone else needs to show factual possession and animus possidendi (the intention to possess);

3. Possession signifies an appropriate degree of physical control. It must be single and conclusive. What amounts to exclusive possession depends on the circumstances of each case (the nature of the land, for example).

4. Animus possidendi is:

‘the intention in one’s own name and on one’s own behalf to exclude the world at large, including the owner with the paper title if he be not himself in possession, so far as is reasonably practicable and so far as the processes of the law will allow.’ (at 471 – 2)

5. Animus possidendi means having the requisite intention to possess and this must be clear to the world. (at 472)

6. Compelling evidence of animus possidendi is needed when the squatter first entered the land as a trespasser (at 476).

Slade J. doubted that the doctrine of implied licence was acceptable.

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