The Doctrine of Adverse Possession - Essay Example

Adverse Possession The doctrine of adverse possession states that an individual who occupies land but is not the true owner of the said land can acquire title to the property without the agreement or consent of the true owner. Before 2002, this rule was governed by the Limitations Act that was set out in 1980 in common law, and governs that after a statutory amount of time, a squatter can claim ownership of land, and not even the original owner can evict the squatter. In this case, the Limitation Act placed a limitation on the paper owner of the land from bringing action against the possessor of the land. The law of adverse possession can be summarized as the allowance of a squatter in a piece of land to acquire ownership of the land after possessing the land for twelve years. Whether the squatter rightfully or wrongfully acquired the piece of land, once the time stated elapses, the rightful owner of the land cannot bring action to evict the current owner. However, adverse possession is now governed by the Land Registration Act 2002, which came into force in October 2003. The Land Registration Act 2002 reduced the statutory amount of time to qualify for adverse possession from 12 to 10 years. However, the time required for adverse possession to be proved still remains at twelve years if the person claiming adverse possession had had possession of the said piece of land for a period of more than twelve years. An analysis of the issue of adverse possession in different jurisdictions indicates that the statutory period is varied and the elements that justify adverse possession are sometimes different. For example, in France, adverse possession is only acquired if a statutory period of thirty years has elapsed, while in Spain, the period is determined by the state of the property. In the Netherlands, statutory time is based on good faith, where the squatter is granted the land after ten years wit the presence of good faith, or twenty years otherwise. As already stated, the issue of adverse possession before the Land Registration Act 2002 came into force did not give the paper owner the right to challenge the application for adverse possession by the squatter. However, with the introduction of the new act, the simple fact of adverse possession for 12 years will not imply automatic ownership for the squatter; the squatter will be entitled to apply for adverse possession after 10 years possession. After the application is made, the registered owner or any other interested party is given the chance to contest the application, and if the application is not opposed, the squatter takes possession of the land. After the application is opposed, it will be automatically rejected unless the squatter has another reason that entitles him to the property or, the squatter was in possession of adjacent property and was of the belief that the property in question was part of the other property. However, if the application is rejected, and the squatter continues to reside in the property for an extra two years without eviction, the squatter can acquire automatic ownership of the property after a new application. In English law, the doctrine of adverse possession is limited to three main factors, which can be used by a squatter to prove that they qualify for adverse possession. Before a squatter is granted possession of a piece of land, three main elements must be satisfied. According to the LRA 2002, the first factor that must be satisfied before adverse possession is granted is that there must be factual possession of the land in question. From Powel v. McFarlane (1979), factual possession is stated as a reasonable degree of physical control of the land, where the squatter can prove single and exclusive ownership of the land for a minimum of 10 years prior to the application for adverse possession. Factual possession usually depends on the particular circumstance of the land, for example, if the land is suitable for farming, the squatter must prove the use of the land for farming for 10 years prior to the application. The second element of adverse possession is the intention to possess, where the squatter must prove that he had the intention to possess the land and exclude any other individuals from possession of the land. From Buckinghamshire CC v. Moran, intention to possess does not include the intention to own the land or the intention to acquire ownership of the property, but the intention to completely possess the land without interference from any other party. The last element for adverse possession to be proven is possession of the said land for the period stated without the consent of the owner. This element is also called adverse possession, where the squatter is required to have enjoyed the use of the land without the presence of lawful title or permission from the owner (Buckinghamshire CC v. Moran, 1988). Adverse possession cannot be proved if it is evident that the squatter had some sort of permission from the paper owner to squat on the land. The issue of adverse possession is different for unregistered and registered land, where unregistered land is still governed by the Limitation Act 1980. For unregistered land, the squatter can claim the land after twelve years, and thereafter, no action can be taken against him. The land is to be possessed without the permission of the legal owner, and does not apply to periodic tenancy. This means that the squatter must prove that the land in question was held in continuous possession for the whole twelve years (Williams v Usherwood, 1982). The issue of registered land i not governed by the Limitation Act 1980, instead, the elements set out above on the Land Registration Act are enforced for registered land. However, the issue of adverse possession has been argued as to whether it constitutes a right or a violation of human rights. An analysis of the number of squatters in London, and the cases of homelessness seems to indicate that adverse possession laws are a means of protecting the homeless from land laws. According to Housing Solidarity (2011), approximately 39% of every individual in London has squatted at some point in their lives, which indicates that adverse possession could be a means of protecting these individuals. For example, every year in the United Kingdom, thousands of Roma gypsies immigrate to the country, and since they do not have legal ownership of land, they resort to squatting. However, stating that adverse possession is a right for the squatter would indicate a violation of the European Convention of Human Rights. As stated in the decision in JA Pye (Oxford) Ltd v. Graham, the main question is whether the use of the Limitation Act to deny ownership to the paper owner constituted a violation of the European Convention of Human Rights. In the case, it was decided that the failure compensate the owner of the land amounted to a violation of the human rights as set out by the European Convention of Human Rights. According to Cobb and Fox (2007), the issue of squatting in urban areas is morally wrong, since the owner of the land is to be blamed for an oversight in identification of the squatters in his land, and the squatters deliberately squat in land that they know belongs to someone else. Despite the fact that the purpose of adverse possession laws is to prevent abandonment of land, the underlying opinion is that adverse possession constitutes trespass. However, with the increasing number of homeless individuals and squatters, the trespass is not being acted upon. Possible actions against squatting in the UK have been brought before legislative powers, for example, in 2011, the Minister of Justice published a paper on the options for people seeking to deal with squatters, outlining their problems in the endevour and suggesting that current legislation is inadequate (MoJ, 2011). This would indicate that the current land laws regarding adverse possession would be changed, and in my opinion, this should be done. The issue of adverse possession has been in contention for some time, and the analysis provided above indicates that the number of squatters in The United Kingdom is big. The issue of adverse possession can be looked at from two different standpoints, whether it is a right for the squatters or a violation of the human rights of the original landowners. The best way to deal with these two issues is by changing current land laws. References Bouckaert, B. (2010). Property Law and Economics. Bouckaert, B., and Depoorter (1999). Adverse Possesion: Title Systems. JEL: K11. Bristows. (2005). Safe as Houses...? Adverse Possession and Human Rights. Retrieved on April 1, 2012 from: British Institute of International and Comparative Law. (2006). Report by the British Institute of International and Comparative Law for Her Majesty’s Court Service on Adverse Possession. Buckinghamshire CC v Moran (1988) P & CR 372 per Hoffman J Cobb, N. and Fox, L. (2007) ’Living outside the system: the (im) morality of urban squatting after the Land Registration Act 2002.’, Legal studies., 27(2). pp. 236-260. Fleming, D. (2009). Property Advice: Adverse Possession. The Telegraph. Housing Solidarity. (2011). Squatters in Britain: vulnerable, demonized, and soon to be criminalized? Retrieved on April 1, 2012 from: JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 Land Registry Practice Guide 4: Adverse possession of registered land Ministry of Justice. (2011). Options for Dealing with Squatting. Consultation Paper. CP12/2011. Powell v McFarlane (1979) 38 P & CR 452 per Slade J ScotFraser. (2011). New action against squatters. Retrieved on April 1, 2012 from: Williams v Usherwood (1982) 43 P & CR235 Read More