Donald’s entitlement to the ownership of the disputed strip of land, it is subject to whether he would be able to successfully claim it through adverse possession. In doing this, he would need to show that he has been complaint with the requirement of the Land Registration Act 2002. The mentioned Act provides that Donald would have to be in actual possession, adverse to the legal intention of Michel for 10 years at the time of the application. Then he would be authorised to apply to register his intention to become the new owner, at the Land Registry. This however will not make Donald the owner automatically, as there could be legal actions that Michel could take to prevent this from happening.The case of Buckinghamshire City Council v Moran1 has put forward a test to assist in determining the requirements for a successful claim for adverse possession, namely that the claimant needs to show factual possession throughout the period of adversity and a strong intention to possess.First of all, we need to determine whether Donald was in fact in factual possession of the land, in doing so, he would need to show evidence that he, as an adverse possessor has dealt with the land as any owner would be expected to deal with, and that no one else was assuming control, except for Donald.
Moreover, he would need to show adequate degree of physical control over the land. In the case of Powell v McFarlane2 Slade J. has defined the concept of factual possession as follows: ”What must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so”.Looking at our set of facts, it could be reasonable to say that Donald has satisfied the concept of factual possession through the actions he has taken. Firstly, by planting the bushes along the land, thus delimitating his propriety from that of his neighbour, Michel. He was in fact in charge of the land, behaving like any other rightful owner would do.
By doing this he has clearly shown his intention to prevent others from transposing his property, the ratio before this is that if the bushes are good enough to keep Michel’s cats from entering, it would most certainly keep Michel and others out as well, thus putting him in charge of the land.Secondly, another key element that will help us assist Donald’s entitlement to the land is his intention to possess. By having already concluded that Donal has been in factual possession and the fact that he has had a great physical control over the land, should show his intention to be in possession of the land. However, it can be hard as to show his real intention, he was not intending to possess the land as he genuinely thought he was the actual owner. In his opinion, there was nothing to be shown, Donald assumed that he was the owner, and acted accordantly. Moreover, the decision in Hughes v Cork3, could assist Donald in his intention to possess, it has been held that adverse possession would arise even though the person in question did not know that the land did not belong to him, however, he acted as if the land was his indeed, which is inconsistent ownership by others.
He was, without knowing, acting as if the land was his all along. Beldam LJ argued that: ” …the failure to distinguish between an intention to possess, which is required, and an intention to dispossess, which is not”. Suggesting perhaps the conflicting requirement cannot truly show Donald’s intention, however Saville LJ contradicted him, and went on to say that: ” The learned judge appears to have held that it is impossible for someone who believes himself to be the true owner to acquire title by adverse possession since such a person cannot, (…), have an intention to exclude or oust the true owner. If this were the law then only those who knew they were trespassing, that is to say doing something illegal, could require such a title, whilst those who did not realise that they were doing anything wrong would acquire no right at all.”Having showed that Donald has accomplished both requirement for establishing adverse possession, under Land Registration Act 2002, Donald could apply to be registered with the title of land that he was adversely possessing.
In doing this, he has to comply with the requirements of Sch. 6 para 1(1) LRA 2002, that states that in order for an application to be legitimate, the person taking the appropriate steps for registration should have adversely possessed the land for at least 10 years: ” a person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application.” This however, will not grant Donald the ownership straight away, in order to be compliant with the new regulations, the Land Registry is obliged to send a notification to the current owner who will have 65 days in order to submit an objection. If this is not the case, then Donald could proceed with his registration, making a new application that will grant him as the title holder. However, if this is not the case, and an objection is made, Donald will have other courses of action to sustain his claim. In Sch. 6 para 5(4) c. LRA 2002 states that, an objection could be ignored if: ‘for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him”.
It is to say that, after analysing the facts above, I would argue that, Donald it is entitled to gain ownership of the strip of land through adverse possession. Moreover, the lack of interest of Michal and the principle of factual possession are contradictory, he did not act in the way an owner is supposed to, he let himself subject to Donald’s actions, he did not object to what his neighbour was doing and did not take any actions to prevent this from happening, given the fact that he probably had knowledge of what Donald was doing. Therefore, it would give Donald even more legitimacy to his request.We now need to consider the legality and enforceability of the correspondence exchanged between the two. English law is specific on this issue, the formation of land contract being overseen by LPA (MP) 19894, that states: ”A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the party have expressly agreed in one document or, where contract are exchanged, in each.
”5In support of this statement comes the case of Commission For The New Town v Cooper (Great Britain) Ltd6, where the court has held that a contract of land cannot be concluded through mere correspondence, this being the case, it can be argued that the exchange of e-mails cannot be regarded as being satisfactory, and thus cannot be legally enforceable, as they do not satisfy the requirement of the Act.However, there were cases in which electronic correspondence was regarded as being binding on the parties. In the case of Mehta v J Pereira Fernandes7 the court has held that a signed e-mail could be regarded as being enforceable. The fact that Donald used his nickname to end his e-mail can be regarded as a valid signature, the same court has held that: ” a party can sign a document for the purposes of Section 4 by using his full name (…) , and possibly by using a pseudonym or a combination of letters and numbers, providing always that whatever was used was inserted into the document in order to give, and with the intention of giving, authenticity to it. Its inclusion must have been intended as a signature for these purposes.” Therefore, it can be said that there was indeed a concluded contract between the two.Furthermore, the oral agreement between Donald and Theresa has led to a collateral contract.
In order for a collateral contract to be in place it has to satisfy four requirements: the statement is promissory in nature, the promise is followed by statement, consistency between main contract and alleged contract, the collateral contract must contain all elements of a contract. The case of De Lasalle v Guildford8 is a good authority to show that the collateral contract needs to be consistent with the main one.To conclude, I would say that the actions taken by both parties have led to an enforceable contract being concluded, the courts have agreed that a nickname can be regarded as a signature.
Furthermore, the fact that Donald has sent his signature along the plan he has sent is another evidence in reviling his identity. As a result, I would argue that, this gives him the right to pursue with the contract, and if the other party refuses he is entitled to damages. 1 1990 Ch 6232 1977 38 P & CR 4523 1994 E.G. 25 (CS) H4 Law of Property (Miscellaneous Provisions) Act 19895 LP (MP) Act 1989 s.2(1)6 1995 2 All ER 9297 2006 EWHC 813 (Ch)8 1900-3 All ER 495