Law of Adverse Possession - Essay Example

Law of Adverse Possession Introduction The law of adverse possession specifies that, under certain circumstances, a trespasser can gain legal ownership of a piece of their land.1 This law of adverse possession was applied in the United Kingdom until the signing of the Land Registration Act 2002.2 If the squatter occupied the land for a period exceeding 12 years, the owner of the land could not lay a claim on the same.3 According to Burns,4 about 20,000 cases are reported each year in the Land Registry based on adverse land possession in England. The Land Registry is noted to have decided most of these cases in favour of the adverse possessors.5 Such decisions indicate that this traditional law remains integral in resolving land disputes in England. The law of adverse possession, however, is faced by a lot of opposition from some quarters of property owners.6 The individuals opposed to this doctrine were mostly land owners who had lost their land as a consequence of this law or those who felt they were in danger of losing their property.7 Most of these people felt that poor supervision and record keeping would cost them their property. The use of a modern Title-by-Registration system has also presented a new challenge to the common law.8 Some people claimed that adverse possession encouraged property theft by “squatters” from the real owners.9 The law of adverse possession has led to a lot of disputes in the recent past with a lot of cases ending up in higher courts.10 Taking of someone’s land without compensation, as outlined in the doctrine of adverse possession, is seen by some critics as a violation of the European Convection on Human Rights.11 According to Article 1, Protocol 1 of the European Convection on Human Rights, all individuals, with legal ownership of a property, are entitled to enjoy their property peacefully.12 This article seems to be in sharp contrast to the S. 15 of the Limitation Act 1980 that indicates that a land owner can lose their land without compensation.13 This paper will look into details the law of adverse possession as outlined in the Limitation Act 1980, Land Registration Act 2002, and section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The paper examines section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and Land Registration Act 2002. The two doctrines are examined to determine how they combine to effectively terminate the common law rules allowing squatters to gain title to land by means of adverse possession. The Traditional Doctrine of Adverse Possession According to section 15 of the Limitation Act 1980, an owner may lose their right to own land, to a trespasser, in case the trespasser has occupied the land for more than 12 years.14 The land owner hence is said to be statue-barred from regaining possession of the land. According to Limitation Act 1980, the title of the proprietor, as a landowner, becomes useless after 12 years. The court protects the person residing on the land rather than the person owning the land. In such a case, the trespasser has more right to the land than the owner.15 The title of the landowner was made useless, but not transferred to the squatter.16 The trespasser was able to create a new title by selling the land to another person. Article 75 of the 1925 Land Registration Act allowed the trespasser to gain the title of the land from the landowner in the case of a registered land.17 The twelve year period allowed before the trespasser can gain a land by adverse possession starts to count immediately a trespasser occupies land.18 Once the 12 years period expires, the land owner is said to have been dispossessed of the land by the Limitation Act 1980, schedule 11, paragraphs 1 and 8(4).19 In the case where the owner is a tenant, his loss of possession of the land does not mean the landlord loses too.20 The reason being; the landlord had leased the land for a period in which he cannot repossess the land.21 The landlord may be dispossessed of the land if the lease expires and does not repossess the land within a period of 12 years.22 Requirements for Adverse Possession Factual possession The trespasser must show exclusive ownership of the land.23 Exclusive ownership means that the trespasser must be able to show that he has total control over the land to the exclusion of any other person, including the owner. In case the owner’s papers show that they have been using the land, then the squatter cannot possess the land (Powell v McFarlane [1977] 38 P & CR 452, 470 – 471).24 The squatter may show possession by putting up a fence (Buckinghamshire County Council v Moran [1989] 2 All ER 225),25 or by fixing new locks (Lambeth LBC v Blackburn (2001) 82 P & CR 494).26 However, in the case of Red House Farms (Thornton) Ltd v Catchpole [1977] 2 EGLR 125, the land had limited use and the squatter was not required to show a significant level of possession.27 Adverse to the Rights of the Owner In the case there is a contractual agreement between the “trespasser” and the owner, then the property cannot be adverse.28 A property may not be obtained by adverse possession in case there was an implied agreement (BP Properties Ltd v Buckler (1987) 55 P & CR 337).29 In many cases, courts have ruled against the trespassers on the basis of an implied agreement between the owner and the trespasser. Intention to Possess The trespasser must show intentions to possess the land for adverse possession to take place (animus Poss Iden di).30 Once the trespasser expresses an interest to own the land, he must show an intention to exclude the owner and treat the land as theirs (Lambeth LBC v Bigden (2000) 33 HLR 478).31 The intention to possess the land may be expressed by some actions such as fencing of the land or changing the doors or the locks of a house he is interested in possessing.32 In such a case, the trespasser is taken to have expressed legitimate animus Poss Iden di. Land Registration Act 2002 The Land Registration Act (LRA) 2002 was meant to change the land registration processes.33 The Act changed the way land would be acquired by adverse possession. However, the legal requirements for obtaining a land by adverse possession were not altered.34 The process of acquiring land by adverse possession changed from being automatic to a three-step process. The three steps are as outlined below; Registration application Despite possessing a land for more than 12 years, a squatter could still fail to become the land owner. According to Sch. 6, Para. 1, a squatter could apply for registration for a piece of land he/she has been in possession for a period exceeding ten years. The Land Registry is then supposed to notify the registered owner of the impending dispossession within a given period. This notification would invite the owner in case he/she has any reason for an objection.35 In case the registered landowner fails to object, the squatter is hence approved to be the new owner of the land. Objections by the Owner The owner is normally given time by the Land Registry to file their objections towards the intention to dispossess them of their property. If the owner responds within the given period, the squatter’s application is declined unless on some grounds specified in Sch. 6, para. 5 of the LRA 2002. The conditions specified in Sch. 6, para. 5 of the LRA 2002 are outlined below; Estoppel; Despite the objections by the owner of the land, the squatter is allowed by the Land Registry to continue to possess the land in a case where the principle of Estoppel is applicable.36 Estoppel applies where the squatter obtained the land with a reasonable belief that the land was theirs. For instance, the trespasser may have built a house on a piece of land with the knowledge of the registered owner on a mutual belief that the land belongs to them. Special conditions for entitlement In some cases, rare scenarios may force the Land Registry to dispossess the registered owner a piece of land, and allow a trespasser to own it. These cases include; The owner might be forced to relinquish his property if the trespasser adopted the land under will, and the deceased’s executors have no consent.37 The trespasser has bought the land, although he did not receive the legal documents.38 Mistakes on the deed In the case of a mistake by the Land Registry on the boundaries of two neighbouring properties, the boundaries may be corrected on the principles of adverse possession. In case the trespasser has a reasonable belief that the land belongs to them for a period exceeding ten years, the trespasser may be registered as the owner of the land.39 Further Application for Registration In cases where the squatter’s application to possess a land fails, the registered land owner is supposed to re-occupy the land within a period of two years. In a case where the registered owner fails to occupy the land within two years, the trespasser may reapply for ownership of the land. In such a case, the trespasser automatically becomes the owner, and the proprietor is not allowed to object.40 s. 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 In 2012, squatting in residential buildings was made an offence under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.41 This Act is effective in both England and Wales.42 The act was enacted after an outcry by people on the harm squatters pose on the residents.43 The passing of this act seems to bring to an end the law of adverse possession. The act is meant to protect landowners and tenants of residential buildings. According to this Act, the trespassers will be deemed to have committed a crime if they enter a building without an agreement or notice with the owner, especially if the trespasser knows that they are trespassing and intend to live there for a certain period. Human rights activists have challenged the institution of the S.144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.44 The activists have asked questions on whether squatters, already residing on residential houses, are supposed to be evicted. The removal of squatters would be a violation of the human rights enshrined in article 8 of the European Convection.45 Some charitable organisations have argued that the criminalization of squatting will increase the number of homeless people in England and Wales.46 Conclusion The law of adverse possession allows people to claim land on the basis of occupying it for a given time.47 Enactment of the Land Registration Act of 2002 changed the rules on adverse possession. The Act was passed following outcry by landowners that some squatters were exploiting the law to “steal” land from legitimate owners. According to the LRA 2002, the landowner was supposed to be notified in case the trespasser applied to possess the land. The LRA gave the landowner an opportunity to object to such application.48 This act seems to strike a more fair ground between the owner and the trespasser than the previous Limitation Act 1980 law. The signing of S.144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 seems to complete the changes in the land laws initiated by Land Registration Act 2002. These two statues combine to minimise the power of a trespasser over the landowner. Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, seeks to protect the land owner than the trespassers. According to the act, squatters are not supposed to occupy residential buildings.49 The motivation behind the passing of the Act was the risks exposed to occupants of residential buildings due to the presence of squatters.50 Some people have argued that the passing of the act neglected the possible negative consequences on people. Some have argued that prohibiting squatting will increase the number of homeless people in England. Those against the Act have argued that there is no evidence on the harm caused by squatters on the homeowners.51 Most of these squatters are homeless, and others seek refuge in the un-used land from hostile places. Making “squatting” an offense will make life harder for the homeless people.52 S144 is likely to worsen the squatting situation in the country by increasing the number of homeless people. Bibliography Cases BP Properties Ltd v Buckler [1987] 55 P & CR 337 Buckinghamshire County Council v Moran [1989] 2 All ER 225 Lambeth LBC v Bigden [2000] 33 HLR 478 Lambeth LBC v Blackburn [2001] 82 P & CR 494 Powell v McFarlane [1977] 38 P & CR 452, 470 – 471 Rains v Buxton [1880] 14 ChD 537 Red House Farms (Thornton) Ltd v Catchpole [1977] 2 EGLR 125 Legislation Land Registry, Practice guide 4: adverse possession of registered land (Government of UK, October 30, 2014). Statutes Land Registration Act 2002. Limitation Act 1980. S.144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. EU Convention for the Protection of Human Rights and Fundamental Freedoms [1998]. Protocol 1, Article 1. Secondary Sources Bainton S ‘Complex Conveyancing’ [2011] A&C Black. Burns Fiona ‘Adverse possession and title-by-registration systems in Australia and England’ [2011] Melbourne University Law Review, 35. Card R Murdoch J and Murdoch S ‘ Law for Estate Management Students’ (Butterworths 1998) Cobb N N and Fox L L ‘ Living outside the system? The (im) morality of urban squatting after the Land Registration Act 2002’ [2007] Legal Studies, 27. Conway H and Tannard J ‘The Emotional Paradoxes of Adverse Possession’ [2013]. Dixon M ‘Principles of Land Law’, [2002], chapter 11, Cavendish. Goymour A ‘Squatters And The Criminal Law: Can Two Wrongs Make A Right?’ [2014] The Cambridge Law Journal, 73. MacKenzie J A and Phillips M ‘A Practical Approach to Land Law’, [1997] Blackstone Press Ltd. Panesar Sand Wood J ‘Adverse Possession and Article 1 of the European Convention’ [2009] Liverpool Law Review, 30. Pawlowski M and Clarke S ‘Moving on: criminal squatting and adverse possession’ [2014] Solicitors Journal, 158. Radley-Gardner O ‘Pye (Oxford) Ltd v. United Kingdom: The View from England’ [2007] European Review of Private Law, 15. Scanlan G ‘Limitation and Adverse Possession—Dead but Not Forgotten’ [2007] Statute Law Review, 28. Smith Rodgers ‘Property Law: Cases and Materials’[2003] Longman Law Series. Read More