Essay
Land Law Adverse Possession Essay
- Module
- Land Law
- Institution
- University Of Leeds (UoL)
Essay discussing adverse possession.
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Adverse Possession EssayN. Hopkins identifies adverse possession as “acquiring a freehold estate by taking
possession of the land, and by continued use to defeat or extinguish existing titles' '. It is
a contentious concept that allows squatters to legally rob the rightful owner of a piece of
property. "Jura subveniunt," "Vigilantibus non dormientibus" is the equitable maxim that
operates as the basis of this principle. The maxim is viewed as a motivation for
landowners to make better utilisation of their property as land is recognized to be a
precious resource. If they are unable to do so or neglect, a squatter who is willing to use
the property has the legal right to take ownership from the rightful owner. April Stroud
clarified in her book "Making Sense of Land Law'' that ownership of land is not absolute
control but has instead been founded on a greater right to possession of land. This
echoes the well-known expression "possession is nine-tenths of the law. According to
Eduardo Penalver and Sonia Katyal in "Property Outlaws," “In most states, the law
permits even the knowing trespasser to take advantage of this doctrine. Although not a
criminal law doctrine, adverse possession ultimately converts someone who would
otherwise qualify as a criminal trespasser into an owner.” the findings imply that the
principle of adverse possession favours squatters and penalises legitimate owners.
Some argued that this doctrine implicitly legalised theft, resulting in pressure to amend
the statute of adverse possession.
To make a successful claim for adverse possession of both registered and unregistered
land, the squatter must demonstrate both substantive possession and intention to
possess. In the case of Moran, it was developed and subsequently upheld in Pye. In
Powell, Slade J clarified that in order to establish factual ownership, the alleged
possessor must treat the land like an occupied owner would. Slade J noted, the squatter
must intend to “...exclude the whole world at large, including the owner with the paper
title...” As per Prudential Assurance Co. Ltd, the adverse possessor must demonstrate
subjective intent to possess the property and also demonstrate the intent by outward
behaviour. A case in point of actions demonstrating intent is Moran, in which the
adverse possessor planted a patch of council land adjacent to his garden. It should be
, noted that the squatter is under no duty to alert the landowners to what is occurring as
in ‘Topplan Estates’. Finally, the possession must be adverse as stated in Colchester.
As per Bowen CJ, "possession must be open, not secret; peaceful, not by force;
adverse, not by the consent of the true owner.
In respect of the former statute, the LRA 1925, the Limitation Act 1980 operates, and
what the squatter has to do was secure Twelve years of nonstop Adverse Possession. If
this is achieved, section 75 of the LRA 1925 takes effect and a trust in the claimant's
interest is formed over the land being asserted. Afterwards, the plaintiff simply has to
proceed to the land office and register as the new proprietor. To simplify matters further,
s.70 (1) (f) offered overriding protection for an individual who has obtained or isin the
process of obtaining rights under the limitation act. The rule seemed to be skewed
massively in favour of the adverse possessor. Nevertheless, Pye case and subsequent
regulatory reforms made by theLand Registration Act 2002 resulted in a departure from
the previous regime in 2003. Currently, under the current legislation, the laws are much
harsher for adverse possessors, as a result of the formation of s.96 LRA 2002. In Pye,
the House of Lords questioned the laws governing adverse possession, stating that it
failed to account for the reality that the majority of land in England and Wales were
recorded with the Land Registry.
When it comes to registered property, the limitation act is no longer valid, with the LRA
being the only incorporated legislation governing adverse ownership. Every AP case
brought to court after 3/10/2003 will be considered under the new law's scope. One of
the most important improvements, it is believed, is that registered owners will be alerted
whenever a squatter applies for title registration. The applicant must apply to become
the registered proprietor of the property after a period of ten years of AP. Notices would
be submitted to the legal owner and all other parties involved in the property in
response to such an application. Landowners then have three options: I. Approve the
claim; ii. Oppose to the claim; and iii.Make a counterclaim for the land. In all likelihood,
the legal owner will combine options ii and iii. The counterclaim grants the legal
proprietor an additional two years to evict the squatter. Under the current statute, there
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