This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
If a person allows a stranger to remain in possession of his land for 12 years without payment of rent, and not under a lease, the stranger becomes entitled to the land.
This is the joint effect of the Real Property Limitation Acts, 1833 (a) and 1874 (b). The earlier Act fixed the period at 20 years, and the latter reduced it to 12. The result is as follows: -
No action for the recovery of land can be brought, except within 12 years after the right of action first accrued (c).
See the full text of this section on p. 311.
Thus, if A is the true owner, and leaves his land vacant in 1890, and B takes possession of the land in 1895, A's right of action against B "accrues" in 1895, so that his right will be barred in 1907.
If B continues in possession till 1907, B becomes entitled to the land.
Not only is the right of action barred, but the title of the original owner is destroyed (d).
Thus, the rule differs from the case of personalty, for if A retains possession of B's chattel for 6 years, A's right of action only is barred, and the chattel remains the property of B, and he can recover it by any peaceable means.'
The wrongful possessor acquires the title of
(a) 3 & 4 Will. IV. c. 27.
(c) Act of 1874, s. 1.
(b) 37 & 38 Vict. c. 57. . (d) Act of 1833, s. 34.
the original owner, subject to all the restrictions and incumbrances which were attached to the land in his hands, unless they have also become barred by non-payment of interest (e) or other means.
Re Nisbet and Pott's Contract,  1 Ch. 386.
In 1867, Kidd covenanted not to build shops on a certain piece of land, of which he was tenant in fee simple. Some time before 1877 Headde took possession of this land, and in 1890 he sold it to Nisbet. In 1903 Nisbet agreed to sell the land to Potts. Potts discovered the existence of the covenant, and refused to complete his purchase. Nisbet contended that. Potts would not be bound by the covenant, as the rights of all persons were barred by Headde's possession for more than 12 years.
Held, Headde acquired the land subject to the covenant, and as the covenant had never been broken, no right of action had accrued, and the statute of limitations had not commenced to run. Therefore Potts would be bound by the covenant; and he could refuse to complete his purchase.
Any person who takes possession has a right to keep that possession against any one but the true owner, even though he has not been in possession for 12 years.
The following case occurred before 1874 while the period required was 20 years.
Asher v. Whitlock (1865), L. R. 1 Q. B. 1.
Thomas Williamson enclosed a piece of waste land in 1842, and in 1850 he enclosed more land and built a cottage. He died in 1860, and devised his cottage and garden to his widow for life, with remainder to his daughter. The widow married Whitlock, and both she and the daughter died in 1863. Whitlock remained in possession of the land until 1865, when it was claimed by the daughter's heir.
Held, although T. Williamson had not been in possession
(e) See p. 230.
for so long as 20 years, yet he bad a better right to the land than any one except the true owner. And he had devised this right to the daughter: therefore her heir was entitled to the land.
If a wrongful possessor gives up possession before he has been in for 12 years, and the land becomes vacant, the rights of the true owner revive, as there is then no one whom he could sue.
Trustees, etc, Agency Co. v. Short (1888), 13 A. C. 793.
The plaintiff company owned some open bush land in Botany Bay, New South Wales, to which the Act of 1833 applied.
In 1848 Meredith took possession of the land: but he abandoned it in 1853. The land remained vacant for several years. Some years after 1866 Short took possession. The company claimed the land in 1886.
Held, as Meredith was not in possession for 20 years, the company's rights revived in 1853, as there was no person whom they could have sued after that date. And their right of action first accrued again when Short took possession, and as he had not been in possession for 20 years, the land still belonged to the company (eld).
Disabilities. - If at the time when the rigid of action first accrued, the true owner was under disability (such as infancy or lunacy) he has six years from the time when the disability ceased or (like any other owner) 12 years from the time when his right of action first accrued, whichever shall be the longer, but not more than 30 years (e).
Thus A, the true owner, was born in 1870; B took possession of his land in 1880 (i.e. A was aged 10 when the right of action first accrued); A became a lunatic when he was 20 years old. A would not be barred until 6 years after he ceased to - be a lunatic. But in any case he would be barred in 1910.
If the true owner was not under disability
(dd) If Short had taken possession by turning out Meredith in 1853, the company would have been barred in 18G8, but probably Meredith could have sued Short for the land at any time before 1873.
(e) Act of 1874, ss. 3 and 5.
when the right of action first accrued, the time will continue to run, although he afterwards falls under a disability.
Garner v. Wingrove,  2 Ch. 233.
In 1883 Meek allowed Wingrove to take possession of certain land in West Ham. In 1891 Meek's trustees sold the land to G, and G thus acquired a right of action against Wingrove. G died in 1892, and devised the land in trust for his sons, who were then infants. In 1902 the elder son became of age, and in 1905 the sons sued W for the land.
Held, when the right of action first accrued to Meek in 1884 (f), and when it first accrued to G in 1891, there was no disability. Therefore the time continued to run in spite of the infancy of G's sons, and they were barred.
At one time absence beyond seas was a disability, but since 1874 (g) this is not considered as a disability in case of the plaintiff; but if the defendant is abroad it may prevent the time from running in his favour (h).
A remainderman has the following periods within which he must sue (i): -
(1) If the tenant of the particular estate was in possession when the particular estate ceased, the remainderman has 12 years from the time when he became entitled to possession.
(2) If the tenant of the particular estate was not in possession, then the remainderman has 6 years from the time when he became entitled in possession (or 12 years from the time when the right of action first accrued to the tenant of the particular estate).
(f) The right of action is held to accrue in case of a tenacy at will, one year after the tenant takes possession. 3 & 4 Will. IV. c. 27, s. 7. (g) S. 4.
(h) 4 & 5 Anne c. 3, s. 19. Darby and Bosanquet, 2nd Edn., p. 55. (i) Act of 1874, s. 2.
Thus, land is granted to X for life, remainder to A in fee simple.
(i.) If C takes possession of the land on the death of X, A has 12 years in which to sue.
(ii.) If C took possession of the land more than 6 years before the death of X, and turned X out, then A has only 6 years from the death of X.
Enlargement of a base fee. - If the tenant of a base fee remains in possession for 12 years after the time when the person who created the base fee could have barred the whole entail without the consent of any other person, the base fee is enlarged into a fee simple (k).
Thus, land was granted to A for life, remainder to his son in tail, remainder to C in fee simple. In 1880 the son barred the entail without the consent of his father, A (the protector of the settlement), and thus created a base fee. He then sold the base fee to D. A died in 1890, and his son could then have barred the whole entail. If D remained in possession until 1902 (i.e. 12 years from 1890), C's rights would be barred.
This rule applies even if the tenant in tail and his issue continue to live during the whole of the 12 years, so that the remainderman has no opportunity of suing. For he has no right to the land until the death of the person who created the base fee and the failure of his issue.
Thus, if the son of A had died without issue in 1900, C would have become immediately entitled to the land. He would then have 2 years within which to sue D.
Concealed Fraud. - If the person who took possession of the land of another, did so by fraudulently concealing the true owner's rights, the statute does not run against the true owner.
This defence to the statute of limitations is very hard to prove; for it must be shown that -
(k) Act of 1874, s. 6.
(1) There was some active fraud (not mere silence) in concealing the true owner's rights. And
(2) the fraud must have enabled the wrongful possession to be taken at the beginning, and must have continued until a time within 12 years before the action is brought.