## Facts

- The case involved a dispute over land that was subject to a restrictive covenant, an encumbrance limiting certain uses of the property.
- The claimant asserted that their adverse possession of the land had extinguished the restrictive covenant.
- The defendant argued that the encumbrance remained valid and binding despite the period of adverse possession.
- The court considered whether adverse possession could extinguish an encumbrance, particularly where the encumbrance was not actively enforced by the encumbrancer.

## Issues

1. Whether adverse possession can extinguish an encumbrance, such as a restrictive covenant, over land.
2. What conditions must be met for adverse possession to override an encumbrance.
3. Whether actual or constructive notice of an encumbrance affects its extinguishment by adverse possession.
4. How the nature and enforcement (or lack thereof) of an encumbrance influence its survival against adverse possession.

## Decision

- The court held that adverse possession can extinguish encumbrances if the possession is exclusive, continuous, and without the owner’s consent.
- It was ruled that if an encumbrancer takes no steps to enforce their rights during the statutory limitation period, the encumbrance may be extinguished.
- The court determined that actual or constructive notice of the encumbrance by the adverse possessor is required for extinguishment.
- The judgment clarified that the extinguishment depends on the nature of the encumbrance and any enforcement actions taken by the encumbrancer.

## Legal Principles

- Adverse possession can extinguish encumbrances if the possessor demonstrates exclusive and continuous possession, inconsistent with the rights of the encumbrancer.
- The possessor must have actual or constructive notice of the encumbrance for its extinguishment.
- Encumbrancers who do not enforce their rights risk losing them through the adverse possession of another party.
- The nature and type of encumbrance and actions taken by the encumbrancer during the limitation period are central to whether an encumbrance is extinguished.
- For registered land, further statutory protections exist that can affect adverse possession and the extinguishment of encumbrances.

## Conclusion

Re Nisbet and Potts’ Contract [1906] 1 Ch 386 clarified that adverse possession, under certain circumstances, can extinguish encumbrances such as restrictive covenants if the possessor meets statutory requirements and the encumbrancer fails to enforce their rights, establishing important guidance for property law regarding the interplay of possession and third-party interests.


Re Nisbet and Potts' Contract [1906] 1 Ch 386