Bryant v Foot (1867) Cockburn CJ came to the conclusion that adverse possession could be proven ‘not on the ground that possession over a given period gave an indefeasible right, but on the assumption, where possession or enjoyment had been carried back as far as living memory would go, that a grant had once existed which had since been lost. 1’
For a claim for adverse possession to succeed the claimant needs to prove that the land has been maintained or used solely by them in the relevant period. There is no requirement for the applicant to be in physical occupation of the land, and cases have been allowed were the land has been used for the grazing of animals belonging to the claimant.2 The erection of a fence or wall around the land could be used to prove that the land has been used exclusively by the claimant however there is no requirement for the land to be enclosed in order for a claim to succeed. Where the claimant has been given permission by the landowner to use the land, a claim for adverse possession would be likely to fail. Use of the land without the consent of the landowner can lead to such a claim, unless the landowner knew that the claimant was using the land in this way, and failed to take any steps to stop him form doing so. With a claim for adverse possession, the applicant has to prove that it was their intention to possess the land.3
A claim for adverse possession was rejected in Leigh v Jack (1879).4 In this case, the court found that it was obvious from the actions of the real owner that they had never, at any point in time, discontinued possession of the land and that the actions of the claimant were insufficient to prove that the real owner had been dispossessed. From this case the ‘implied licence’ theory was developed. Such a ‘licence’ only gave the squatter ‘mere’ possession of the land and none of the rights of the true owner would be interfered with.
Before the LRA 2002 the adverse possessor would be regarded as the