How Adverse Possession Is Obtained - Essay Example

? Adverse Possession 13th Nov, Adverse Possession Introduction Adverse possession is a doctrine in property law whereby a person who possesses the land of another for a continuous period of specified time, may be able to claim legal title to it if they satisfy certain common law requirements. Through adverse possession, a trespasser can displace the owner to a real property and acquire title to the property. This doctrine is based on limitation of actions whereby certain courses of actions becomes statute barred after a certain period of time. 1.1. How adverse possession is obtained Adverse possession is obtained by a trespasser who has met the common law requirements explained in part 2. In all states, there are statutes of limitations that put a cap on the time which property owner can bring courses of action to recover the property from a trespasser. When such time has lapsed, the trespasser effectively gains title to the land, and if the owner of the land can bring a suit to claim such property later, the trespasser is entitled to claim adverse possession as a defence or counter-claim. In U.K under the Land Registration Act 2002, a trespasser is entitled to make an application to the land registry to be registered as the owner, after meeting the laid down requirements 1.2. Example of adverse possession Mr X purchased a plot in order to put up commercial buildings in M Borough County. He fenced up the plot but due to financial constrains, he was unable to start constructions. For one year, he would send somebody occasionally to slash grass. Over time, Mr Y who owns a plot adjacent to the land started to use the property as his garage. He took over the duty of slashing and general maintenance. Over the years, he even replaced the lock to the main gate three times and fenced the plot such that it was only accessible from his property. At one time, following visits by brokers who wanted to purchase the land, he erected a ‘land not for sale’ sign and additionally indicated that ‘trespassers will be prosecuted’. During all this time, he was fully aware that the plot belonged to Mr. X but did all these developments fully aware of that fact. After 10 years of his presence, Mr. X sent a letter to protest his presence in the property without his consent. However, the matter was not followed up. 13 years later, Mr. X gets the necessary finance and desires to commence the constructions. In this scenario, Mr. Y is entitled to claim legal ownership of the plot. This is because he had been in actual, notorious and open occupation of the plot for uninterrupted period of 13 years. Evidence of possession is evidenced by the signs that he erected to wade off trespassers and warn potential buyers. His possession was adverse to the title of Mr. X which is evidenced by the letter of protest sent by X. Therefore, Y, who was initially a trespasser, has since displaced X and is therefore entitled to claim legal title to the property. Several circumstances have to be in existence for a trespasser to establish adverse possession. 2. Requirements for adverse possession They include: a) He must have been in actual possession. b) Such possession must be adverse or hostile to title of the true owner. c) Such possession must be continuous or uninterrupted and d) Possession must be open, factual, and notorious so as to amount to constructive notice to the owner of the property. 2.1. Actual possession Under this requirement, the trespasser must actually be in possession of the land. This implies physical occupation of the land. Besides the physical occupation, the court in Littledale v Liverpool College [1900] 1 Ch 19 held that the trespasser must bear the intention to possess (animus possidendi). However, in Pye v Graham (Oxford) Ltd [2002] UKHL 30 it was held that the squatter need not have a long-term intention to acquire title, it is sufficient if their intention is to displace the owner. Such possession must be possession of the entire property. If the possession is partial, then it must be for a reasonable percentage of the land claimed. For instance, if A occupies 1 acre of B’s land of 70 acres, he meets the threshold of occupation as far as the one acre is concerned but not the 69. However, if such occupation was of 60 acres, it meets the reasonable threshold requirement. The trespasser does not necessarily need to be in possession of the property personally. It is sufficient if he leased his interest to a third party (tenant). The trespasser’s possession shall be imputed from the tenant’s actual possession of the property. It is sufficient if the trespasser collects rents or otherwise behaves in a manner that is hostile to the land owner. 2.2. Possession must be Hostile to the record owner This requirement means that such possession must be without the consent or permission of the record owner. Therefore, if possession such is pursuant to consent of the owner, then such possession is not hostile or adverse. In Pye v Graham (Oxford) Ltd v Graham [2002] UKHL 30, it was held that the taking or continuation of the possession by a squatter with consent of record title holder does not amount to possession or dispossession by the squatter. Possession can commence as non-hostile and then turn into hostile. When this happens, the statutory period begins to run when the possession turns hostile. 2.3. Possession must be continuous/ uninterrupted As a general rule, possession must be continuous during the statutory period. If the record owner re-enters the property in order to regain possession, disruption of possession occurs and in such a case, time starts to run afresh for the purposes of the statutory time requirement. In addition, if possession is by two adverse possessors, one after the other, their periods of possession may be tacked if the two are privy to each other, that is, the two have continuity of interest. For instance if an adverse possessor occupies land and then sells such possessed land to another party, their individual period of possession shall be added up for the purpose of determining the statutory period. If the two do not have continuity of interest, then tacking shall not be done (Emanuel, 2008, p.8). 2.4. Possession must be open, notorious and visible This means that the use of land by the squatter must be consistent with that which a typical owner would use such property for. It must be in a way that the record owner knows that his land has been encroached. In the words of the court in Sturdivant v. Todd 956 So.2d 977, 982, the adverse possessor must “unfurl his flag on the land and keep it flying so that the owner may see, if he wills, that an enemy has invaded his domain and planted a standard of conquest.”(Quoted in Aalberts & Siedel, 2008, p. 405) 3. How to avoid adverse possession The record owner of the title can avoid adverse possession through ensuring that either of the above requirements is missing from the possession of his property by a trespasser. For instance, with regards to the continuity requirement, the record owner can regularly evict or take possession of such property before the lapse of the statutory period. If the squatter returns, time starts to count afresh. In addition, the record owner can expressly and in writing give consent to the trespasser to use his property. Therefore, the trespassers’ presence ceases to be hostile. Importantly, the record owner has to take action immediately he notices encroachment on his property. 4. Registered land versus unregistered land In U.K, the above requirements apply to unregistered land. However, it differs with regards to registered land. The objective of Land Registration Act of 2002 was to ensure indefeasibility of registered title to reflect the state guarantee and the mirror principle. The Act reduced the statutory period to 10 years. Under the Act, a squatter can successfully claim adverse possession under only three circumstances only. First, if the registered owner leads the squatter to believe that latter owns the property, and the squatter, in reliance of such a belief, acted to his detriment. Secondly, if the person claiming adverse possession is in occupies land adjacent to their own under the mistaken belief that it belongs to them, for instance in cases where the boundary is not delimited. 5. Comparison of Adverse Possession in English law and Islam Adverse possession as applicable to English law is analogous to istihqaq in Islamic property law and moulkya. For instance, for a gift (hiba) to be effective, if it is real property under adverse possession of the donee, such a gift is not effective unless the donor takes possession of such a property and delivers it to the donee (Ahmed, 2009, p.13). In Islam, the objective of adverse possession just like acquisitive possession is to promote stability and certainty inland holdings. Like in English law, claims of adverse possession are entirely outside the scope of land registration. Therefore, that is why purchaser of land must insist on inclusion of a warranty clause that such land is purchased free from adverse claims. Under Islam, adverse possession is based on the idea that the property owner has abandoned his property. Similarly in English law, this is the philosophy behind adverse possession whereby a person who has abandoned his land is deemed to have been displaced by the occupier. Additionally, like in English law where the doctrine is based on statute of limitation of actions, in Muslim law a person entitled to bring a course of action loses that right by unnecessary delay in seeking to enforce his rights. In conclusion, adverse possession is a doctrine in property law that allows a squatter to displace the record owner and acquire title to the land. For this to happen, the person claiming adverse possession must fulfil certain requirements. Adverse possession for registered land bears some slight distinction with adverse possession for unregistered land though both are anchored on the same philosophy. Finally, the doctrine of adverse possession can be traced to Islamic Property Law concept of istihqaq. References Aalberts, R. & Siedel, G. (2008). Real Estate Law. Mason: Cengage Learning. Ahmed, T. (2009). Comparative study of gift under Islamic law and Transfer of Property Act 1882 of India. Retrieved from ttp://www.researchgate.net/publication/228228161_Comparative_study_of_Gift_under_Islamic_Law_and_Transfer_of_Property_Law_Indian_perspective/file/3deec5175600704976.pdf Emanuel, S. (2008). Real property. New York: Aspen Publishers. Littledale v Liverpool College [1900] 1 Ch 19 Pye v Graham (Oxford) Ltd [2002] UKHL 30 Read More