Property Law (Essay Sample)

ADVERSE POSSESSION
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ADVERSE POSSESSION
If a person occupies a land for some time and then acquires legal title to it, he is said to have acquired it through adverse possession. Adverse possession is however limited to only personal and real property. This implies that public land like schools or playground cannot be claimed through this means.[]
Adverse possession started way back in the 12th century. Factual possession alone was enough proof that the occupant had the right to possess that piece of land. Squatters have gradually appeared to be favored by the law more than the true owners of land. As long as a squatter had proof of having occupied a land for more than 60 years exclusively, he was capable of barring the true and owner from taking any action against him. In 1939, the Statute of Limitations was amended and it was stated that a landowner’s title to a land would expire after a squatter had occupied the land exclusively for 20 years. Later it was further amended and this time was reduced from 20 to twelve years.[]
The first English law regarding adverse possession was in the Statute of Westminster in 1275 and it limited the true landowners from recovering their lands from the squatters. Due to the high level of illiteracy in Early England, records related to land were poor and therefore, the best proof of land ownership was only by possession. Land was valued in terms of its capability to produce and not for its basic value. This implied that the person who made use of the land for the benefit of the society was considered as the one deserving to hold the title to the land other than the real owner who just paid the taxes but made no use of the land. This is how adverse possession came to be though today, most cases of adverse possession concern land disputes regarding boundaries.[]
This essay will focus on today’s state of law in adverse possession, how one can succeed can succeed in making a claim for the same, and the importance of legislative rules that have been recently been put in place. It will also evaluate the Human Rights Act 1998 and the case law that is relied on by both the European and the national courts. In conclusion, it will assess and evaluate if the current state of law in the same context is just.
For a squatter to succeed in acquiring a title by adverse possession, the time for his ejection must have elapsed as stated in the Statute of Limitations after which it is impossible for the real owner to recover ownership of his property. The theory behind adverse possession assumes that the true owner of the property neglected it and therefore, the trespasser who treated it as his own is recognized as the owner. Anyone from individuals to the government can become an adverse possessor.[]
The two requirements for an adverse possession claim to succeed are physical possession or occupation of a property and the aim to take ownership of it without the consent of the owner. This means that the claimant treats the property as his or her own by doing what he or she pleases with it. In the case "Pye v Graham (2001)”, it appeared hard for the claimant to prove his plan to possess the land adversely because the landowner had allowed him to make use of the land.
Likewise in the case of factual possession, the adverse possessor has to demonstrate physical possession of the land by doing as he pleases with it against the owner’s will. This means that implied licenses, taking a lease or tilling the land with the owner’s permission is not applicable in judgment in favor of title by adverse possession.[D. Macintyre, Adverse Possession of Land. The Cambridge Law Journal, 2009. pp 33-34.]
The elements that need to be established for the adverse possessor to acquire title are:
Actual
Claiming land ownership merely by paying taxes without occupying it is not sufficient. Actual occupation or temporary use of land with the intention of keeping it for oneself is required for adverse possession to take place. This can be established by examining if the possessor is putting into use the land in a way that the owner of a similar property would do, for instance planting crops or trees and harvesting. This is what indicates actual possession of the property.[Jourdan, S, Adverse possession. London: Bloomsbury Professional, 2011. P.20.]
Hostile
Hostility does not necessarily mean that there has to be a physical fight. It means that the trespasser must occupy the land against the landowner’s will. This hostility must exist throughout the entire of statutory period if the title is to mature. An example of this is a case where a person was given a color of title due to a legal disability as at the time when the deed was executed. Some part of a color title is usually defective but seems to indicate that the occupant of a land is actually the owner which is not the case. This color of title becomes an actual title if the adverse possessor has been in possession of the land through this manner for the entire statutory period.[]
Open and notorious
The adverse possessor must occupy the property openly for the world to see as secretly doing so will not give him or her any rights legally. He/she must behave as the true owner of the property. This kind of behavior is described as open and notorious especially when the adverse possessor actually resides in the property. The claimant’s possession should be so notorious to attract the attention of the owner, public or the neighborhood. This gives the owner notice that he/she will lose the property if he/she fails to try to recover it within a certain period of time.[Boudewijn, B, Property Law and Economics: Encyclopedia of Law and Economics. 2nd edn, Edward Elgar Publishing, vol.5, 2010. Pp 27-30.]
Exclusive
Exclusivity means that the trespasser must have occupied the property solely. He or she can prove this by showing buildings that he or she may have constructed in the land. Joint tenants can claim title by adverse possession. However, a trespasser cannot possess a property jointly with the landowner. In cases where many people or the public have used the property, exclusive adverse possession cannot be established.[]
Continuous
This means daily control or regular occupation of the land. This has to exist during the entire statutory period if title by adverse possession is to be given. If a person only occupies a part of the land continuously, he/she will only be given the title to only that part. Continuity does not necessarily imply sole occupation. The property can have different successive occupants and these time periods can be combined to meet the requirement of continuity. This happens only if privities exist between the people involved and the combination of these time periods is referred to as tacking. Privities can be describing as transferring of ownership from one owner to another so that it is occupied continuously by the possessor. These parties usually have related interests to the property either in terms of sale, inheritance or in a case of bankruptcy as a possession by a trustee. Tacking is only allowed in cases where the previous owner had been under color of title or adverse.[Marianne, J, Real Estate Law, 10th edn, Cengage Learning, 2013. P. 52.]
The following are the cases in which continuity is breached. Firstly, if any time passes between the end of the previous occupant’s possession and the beginning of the next party’s occupation. This implies in continuity and tacking will therefore, not be allowed. Secondly, if a lawsuit commences by the true owner over the ownership right against the adverse claimant. This holds if the lawsuit is successful in the final judgment. However, if the owner decides to abandon a lawsuit against the adverse claimant or if the suit is dismissed by the court, there is no breach in continuity of the property.
Thirdly, unhidden and notorious deeds and entrance into the land by the land owner with the aim of reclaiming its possession and lastly, abandoning the property with intent before the end of the statutory period.
If continuity is breached, whether for a short or long period of time, the possession of property as at that time is restored to the true owner.[Jourdan, S, Adverse possession. London: Bloomsbury Professional, 2011.pp 44-86.]
Statutory period
This indicates the time period which the adverse claimant must have occupied the property for him/her to acquire title by adverse possession.[Boudewijn, B, Property Law and Economics: Encyclopedia of Law and Economics. 2nd edn, Edward Elgar Publishing, vol.5, 2010. P.40.]
The Land Registration Act 2002 has laid down some restrictions regarding application of title by adverse possession. Some of the restrictions laid out in the Land Registration including the following.[Stake, Jefrey E, The Uneasy Case for Adverse Possession, Faculty Publications. Paper 221, 2001.]
Firstly, if the adverse claimant is a defendant in a case going on relating to land possession or a ruling related to the same has been made against him/her in the last two years before the date of application (Schedule 6, paragraph 1(3)). Secondly, if the adverse claimant has been an enemy to the registered owner for more than one year as at the application date (Schedule 6, paragraph 8(1)).
Thirdly, in a case where the registered owner is mentally unstable and is therefore unable to make sound decisions (Schedule 6, paragraph 8(2)). Finally yet importantly, if the land was on trust at any given time for the last 10 years at the time of the application (Schedule 6, paragraph 12).
The Land Registry is not capable of defining where the boundaries should be positioned precisely. This implies that it is possible for a...