Chapter 11: Adverse Possession
Introduction
1. AP is the modern example of the ‘relativity of title’ where no person may own land
itself – only an ‘estate’ in it.
As a result of the ‘relativity of title’ concept, it was held in Mount Carmel
Investments Ltd v Peter Thurlow Ltd that if B sues C in order to recover land,
C cannot defend the claim by saying that A and not B is the true owner. Court
will rule in favour of B whom has a better title than C.
Criticising the ‘relativity of title’ justification for AP: This explanation is
getting outdated:
Registration of a person as proprietor under the LRA 2002 is the
closest thing in over 900 years to absolute ownership of land.
Criminal offence in relation to squatting1: s.144 Legal Aid, Sentencing
and Punishment of Offenders Act 2012.
2. AP can be justified on substantive grounds:
expression of a policy that denies legal assistance to those who sleep on their
rights, as well as ensuring that there is an end to disputes concerning
ownership of land as held in RB Policies v Butler.
land is finite source and the principles of AP can help ensure its full economic
and/or social utilisation as held in Hounslow v Minchinton.
But we must balance the above concerns with the title guaranteed by the State
via registration (encouraging 1st registration) especially since land of
registered title comprises over 85% of all titles.
3. In modern land law, there remains 1 common set of rules concerning how AP might
be established, but 2 sets of divergent rules about the effect of such a claim on the
paper owner’s title.
How AP might be established: rules developed via case law, largely set out by
HOL in [J A Pye Ltd v Graham]: rules establish when a claim of AP might
succeed factually, applies equally to registered and unregistered title.
Following from the above, there is a divergence:
1
There is no legal distinction between ‘adverse possession’ and ‘squatters’, unless we reserve the former term
only for those people who have actually acquired, or are intending to acquire, title from the paper owner.
‘Squatters’ and ‘squatting’ are often used in a derogative sense.
1
Introduction
1. AP is the modern example of the ‘relativity of title’ where no person may own land
itself – only an ‘estate’ in it.
As a result of the ‘relativity of title’ concept, it was held in Mount Carmel
Investments Ltd v Peter Thurlow Ltd that if B sues C in order to recover land,
C cannot defend the claim by saying that A and not B is the true owner. Court
will rule in favour of B whom has a better title than C.
Criticising the ‘relativity of title’ justification for AP: This explanation is
getting outdated:
Registration of a person as proprietor under the LRA 2002 is the
closest thing in over 900 years to absolute ownership of land.
Criminal offence in relation to squatting1: s.144 Legal Aid, Sentencing
and Punishment of Offenders Act 2012.
2. AP can be justified on substantive grounds:
expression of a policy that denies legal assistance to those who sleep on their
rights, as well as ensuring that there is an end to disputes concerning
ownership of land as held in RB Policies v Butler.
land is finite source and the principles of AP can help ensure its full economic
and/or social utilisation as held in Hounslow v Minchinton.
But we must balance the above concerns with the title guaranteed by the State
via registration (encouraging 1st registration) especially since land of
registered title comprises over 85% of all titles.
3. In modern land law, there remains 1 common set of rules concerning how AP might
be established, but 2 sets of divergent rules about the effect of such a claim on the
paper owner’s title.
How AP might be established: rules developed via case law, largely set out by
HOL in [J A Pye Ltd v Graham]: rules establish when a claim of AP might
succeed factually, applies equally to registered and unregistered title.
Following from the above, there is a divergence:
1
There is no legal distinction between ‘adverse possession’ and ‘squatters’, unless we reserve the former term
only for those people who have actually acquired, or are intending to acquire, title from the paper owner.
‘Squatters’ and ‘squatting’ are often used in a derogative sense.
1
