Abstract

This article seeks to trace the origins of the requirement that a squatter must have an intention to possess (animus possidendi) in order to establish title by adverse possession. The requirement has been confirmed by the House of Lords in the recent case of Pye (Oxford) Ltd v Graham [2003] 1 AC 419. Its origins can readily be traced back to the decision of the Court of Appeal in Littledale v Liverpool College [1900] 1 Ch 19, but there is little evidence of any need for intention before that case, and no convincing authority is cited for it. Possible explanations for the source of this requirement are considered by the article (for instance cases on re-entry by landlords and the so-called ‘found chattel’ cases), but these are ultimately rejected. The article goes on to suggest that the reason for this is that the intention requirement was ‘imported’ into English law from German Pandectist writers of the nineteenth century. It suggests that Littledale was the case in which this happened. It seeks to support this hypothesis by reference to biographical details of Lindley MR, who gave the leading judgment in Littledale, and who not only trained in part in Germany but also took an active interest in German scholarship of the time. A brief survey of the relevant German sources is undertaken, focusing primarily on the work of Savigny, but also considering the rival theory of Jhering. Finally, it tracks the development and refinement of the content of animus possidendi, first by 19th century legal scholars and then by 20th century judges, to make it ‘fit’ with English property law. It seeks to address the question of whether the animus possidendi requirement is a free-standing element (the ‘strong’ will theory), or whether it is simply implied from the acts of the squatter (the ‘weak’ will theory), and suggests a solution by reference to the German sources and later English cases. Finally, it considers how the House of Lords decision in Pye reflects the logical culmination of the acceptance of this ‘legal transplant’ into the common law