Summary
Summary adverse possession
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Summary of 5 pages for the course Property Law at UoW (property law)
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Property Law - Week 5 - Lecture 5 - Adverse Possession 1So what is meant by Adverse Possession?
- Possession ; not necessarily about ownership but about exercising control or ‘enjoying’ the land -
occupation
- Adverse? ; negative? Going against something?
More commonly known as squatting
- A lot of negative connotations - critical view of squatting
- You don't have any rights yet you're using the land as you own
- Emotive subject - is someone losing their interests
- Moral element - why are we allowing someone to gain by going onto someone's land without
permission
- Lacking possession
- Stereotyping?
Who is who?
Someone in adverse possession (the claimant - the squatter)
Vs
The true owner - the person who was the paper owner (the defendant)
If there is a successful claim adverse possession, the adverse possessor will become the new legal owner of
the land in question
The adverse possessor will trump the legal owners pre existing rights
The adverse possessor will be able to demonstrate that he/she has a good (a stronger) title to the land (a
better claim to ownership)
A lot to be gained and a lot to be lost - very emotive subject
Adversepossession is said to operate negatively because the person in adverse possession becomes the new
owner of the land - causing the original owner to lose their rights in the land
A key concept; do you have permission to enjoy land?
- This goes beyond ownership - we can interact with land in many different way without owning it
- For example, the land owner may grant you permission to be on the land
What about if you don’t have permission?
- The act of trespass
Trespass and adverse possession
- In Adversely possessing the land, the squatter does not have the permission to be on the land - thus
committing the act of trespass
The big moral question then turns to whether we are rewarding the individual who commits this offence, by
essentially giving them the title to the land?
- The true owner is not only wronged by the act of trespass, but then also by losing the ownership over
the land
Is the law legitimizing and rewarding a wrongdoer?
- By giving them one of the most valuable assets
A criminal act
- Section 144 of the legal aid, sentencing and punishment of offenders act 2012 - trespassing in a
residential building (non commercial) is a criminal offence
, (Offence of squatting in a residential building) - Section 1
R (besT) v Chief Land Registrar
Facts
- Best entered an empty property in 1997
- He renovated it with an intention to make it his home
- Best applied to become a registered proprietor
- The land registry refused his application on the grounds that his application had been a criminal
offence, under s144 of LASPO 2012 and that a criminal act could not form the basis of an application
for adverse possession
A criminal act was treated as a bar to adverse possession, which can be considered a logical conclusion
Decision
- The court did not agree… high court held the land registry were mistaken (successful JR claim)
- Extremely illogical - no evidence the parliament ever considered the impact of s144 on adverse
possession
The decision exposes the mess created by s144 and the crazy logic of the law. A claim for adverse possession
is not barred by the fact that the squatter may have necessarily had to commit a criminal offence in carrying
out their adverse possession
Adverse possession - at its core
- The process by which someone can gain ownership of land through occupation without the permission
of the original owner (i.e they are a trespasser)
- How do they do it? - occupation
- Fancy way of stealing land? - the trespasser gives no consideration (does not pay for the land - instead
they managed to use and enjoy someone's land for free and now they are also trying to claim the legal
title)
How long do they have to occupy the land before they acquire the title?
Key distinction - registered v unregistered land
But more importantly a different process
A lot of reforms
Since the LRA 2002 - far fewer claim for adverse possession which will succeed
Registered v unregistered land
At first it doesn’t look so different - but in reality it is
Unregistered land is more vulnerable to a successful claim of adverse possession
The modernisation offered more protection for people whose land is registered
Unregistered land
- We already discussed that this is the minority of land in england and wales (14%)
- However, how does this translate to land mass?
- Around 25% of land mass is unregistered
- Still considerable number of land could be impacted by the law relating to adverse possession of
unregistered land
How long does it have to be occupied?
- Section 17 limitation act 1980 - 12 year limitation period
- Who is limited?
- It concerns the legal paper owner - if you let someone TAP your land for 12 years and you do nothing -
you lose the right to assert the title over the land
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