The Law on Adverse Possession

     Critically discuss this statement. ANSWER Introduction Adverse possession is known in popular parlance as squatter's rights. The law on adverse possession concerns the process by which title to real property owned by another party is acquired without the payment of compensation, by, as its name suggests, occupying the property in a manner that conflicts with the true owner's rights for a minimum specified period of time. Mackenzie and Phillips define the concept as follows: the process of acquiring title to land by dispossessing the previous holder and occupying the land until his right to recover it is time-barred.[1] As cases such as Powell v McFarland [1977][2] and Buckingham County Council v Moran [1990][3] confirm, adverse possession requires the co-existence and proof of three elements in regards to the occupation of the property in question.. These elements are physical, mental and temporal. Generally speaking, this means that any party seeking to claim the property occupy it exclusively (preventing the occupation of others) and openly to the world at large just as if it were their own. Openly hostile possession must be continuous[4] in nature without the permission of or challenge from the legitimate owner, for a fixed statutory period in order to permit the acquisition of title. Adverse possession has been governed by section 15 of the Limitation Act 1980[5], since 1981.[6] Section 15(1) of the 1980 Act the limitation period for the adverse possession of land is 12 years. The statement under discussion suggests that the Law Commission, Parliament and the European Court of Human Rights have indicated a negative disposition towards adverse possession because none of those bodies takes sufficient account of the significant public interests supported by the doctrine.

     This paper discusses the nature of adverse possession against the backdrop of recent trends in the law, which throw the concept of squatter's rights into critical sharp focus. Analysis of Adverse Possession Prima facie, the concept of adverse possession appears to go against the grain of certain fundamental principles of English common law, basic socio-economic policy and the conventional political paradigm which sustains our property-owning democracy. In simple terms an adverse possessor is nothing more than a trespasser, which is itself a tort against the owner of the property, although according to ancient law, if he or she can perpetrate the tort unchallenged for long enough they may be rewarded by being allowed to acquire ownership of the property in question without the knowledge or consent of the rightful landowner. In almost all other circumstances the law has a word for property which is removed from its owner without consent and that word is theft. Perhaps it comes as little surprise therefore that in recent times the historical anomaly of adverse possession has fallen under critical review.[7] In recent times Parliament has substantially improved the position of a registered landowner without actually abolishing the doctrine of adverse possession. Impetus for recent legislative reform came in part from the Law Commission and its influential report Land Registration for the Twenty-First Century: A Conveyancing Revolution (2001)[8]. The report proposed new rules for the adverse possession of registered land which, it is submitted, effectively neutered the rights of squatters. Produced in response to the 2001 Law Commission report, the Land Registration Act 2002[9] now stipulates that where land is registered, if an adverse possessor wishes to take an interest in land he must apply to be registered as owner after a minimum period of 10 years of adverse possession. Significantly the Land Registry must then give notice to the true owner of this application. This procedure offers the landowner a period of time 65 business days to object to the adverse possession.. Once objection has been made the true owner will usually have a further two years in which to effect the eviction of the adverse possessor.

      It is submitted that this legislative reform effectively drives a knife into the heart of adverse possession by preventing the removal of a land owner’s right to property without their prior knowledge. It could be argued however that this policy fails to give proper emphasis to the contended benefits of adverse possession. In terms of a utilitarian socio-economic analysis one could assert that given that land is a finite commodity it should be used in such a way as to produce the maximum societal benefit. If a landowner has ignored property for such a long period of time, perhaps it is contrary to social justice to deny another party, who has committed himself to the land, its use and enjoyment. In the recent cases of Beaulane Properties Limited v Palmer [2005][10] the law of adverse possession received further, and possibly fatal, body blows.. The High Court ruled that the law of adverse possession in relation to registered land is not compatible with the Human Rights Act 1998[11] and Article 1 of the First Protocol of the European Convention on Human Rights[12], which provides for the right to peaceful enjoyment of possessions. This decision is consonant with another recent case before the European Court of Human Rights JA Pye (Oxford) Land Ltd v United Kingdom [2005][13], it was held (although only by a 4:3 majority) that the doctrine of adverse possession was indeed a violation of Article 1 of the First Protocol to the Convention. Moreover, the Court of Human Rights found that it was disproportionate for the true owner both to lose his land and to receive no compensation for it and that adverse possession interfered with the fair balance between the public interest and the true owner's right to the peaceful enjoyment of his possessions.[14] The decision was appealed by the UK Government to the Grand Chamber of the Court Europe's highest court, in November 2006. At the time of writing (24 February 2007) this ruling is still awaited.[15] It is submitted that the Grand Chamber is likely to endorse the ruling of the Court of Human Rights given that to do otherwise would necessitate jurisprudential gymnastics around the fundamental right enshrined in Article 1 of the First Protocol to the Convention. Concluding Comments There is an old saying that “Possession is nine-tenths of the law and this was never more true than in the context of the law on adverse possession.. The most ancient principles of land law based ownership on possession called seisin, with title awarded to the person who could show he had been seised of the land at the earliest date. However, it is submitted that adverse possession, while deriving certain theoretical social benefits and consonant with basic tenets of utilitarian principle, is essentially a relic of the past and incongruous in application in the modern context. It is a trite observation that conceptual utilitarianism is sidelined in modern courts and legislatures given that proliferation of hard, sovereign law.

     The polemic concerning the law on adverse possession can be summarised as a conflict between mediaeval pragmatism supported by peripheral social equity, and modern property interests buttressed by progressive human rights. It is submitted that this is no contest. Adverse possession will soon be no more than a footnote in legal history.

THE END GLOBAL DOCUMENT WORD COUNT : 1326 (excluding footnotes) BIBLIOGRAPHY Chronicle, Council for Licensed Conveyancers, Edition 46, February 2007 European Convention of Human Rights: https://www..echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais..pdf European Court of Human Rights: https://www.echr.coe.int/ECHR/ Human Rights Act 1998: https://www.opsi.gov.uk/ACTS/acts1998/19980042.htm Land Registration Act 2002: https://www.opsi.gov.uk/ACTS/acts2002/20020009.htm Land Registration for the Twenty-First Century: A Conveyancing Revolution (2001) Law Com No 271 (published on 10 July 2001) Limitation Act 1980: https://www.lawcom.gov.uk/docs/cp151apa.pdf Mackenzie J., and Phillips M., A Practical Approach to Land Law, (2001) Blackstone Press Ltd “Swat the squatters. Owners to be protected from home hijackers”, Daily Mail, 2 September 1998 Cases as footnoted, verified against original law reports.

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Footnotes

[1] Mackenzie J., and Phillips M., A Practical Approach to Land Law, (2001) Blackstone Press Ltd, p.362 [2] 38 P & CR 452. [3] Ch 623. [4] Generally speaking possession must be continuous but where the property in question is of a type typically only occupied at certain times (for example a summer holiday cottage), it may be that the party seeking to assert rights of adverse possession only needs to be in exclusive, open, hostile possession during those successive periods of normal use. [5] See for full text https://www.lawcom.gov.uk/docs/cp151apa.pdf. [6] Section 41(2) Limitation Act 1980. [7] See inter alia: “Swat the squatters. Owners to be protected from home hijackers”, Daily Mail, 2 September 1998, p.4. [8] Law Com No 271 (published on 10 July 2001). [9] For full text see: https://www.opsi.gov.uk/ACTS/acts2002/20020009.htm. [10] All ER (D) 413. [11] For full text see: https://www.opsi.gov.uk/ACTS/acts1998/19980042.htm. [12] See for full text: https://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf [13] European Court of Human Rights [2005] 47 EG 145 (CS). [14] For further comment see: Chronicle, Council for Licensed Conveyancers, Edition 46, February 2007, page 5. [15] As of 24.2.2007 this case is listed as pending before the Grand Chamber: https://www.echr.coe.int/ECHR/EN/Header/Pending+Cases/Pending+cases/Cases+pending+before+a+Grand+Chamber/.

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