‘The law of adverse possession can be justified in relation to Registered Land’. Critically discuss.
Squatting can never be justified, legally or morally.
What are the justifications for the extinguishment of a landowner’s title by AP, in the light of that
owner’s EC right to peaceful enjoyment of property?
‘Land is a finite and scarce resource and the principles of AP can help to ensure its full
economic/social utilisation (Dixon)
Intro
- AP is unlawful occupation of someone else’s land without permission, the most contentious means
of acquiring land esp high value land (as in Ellis v Lambeth BC)
- Acknowledging that “land is a precious resource and should be kept in use”, the Law Com 271 sets
this point out as one of grounds for the doctrine. Historically, it has been supported by powerful
moral & policy arguments
- However, LC also recognises that where the doctrine of adverse possession is concerned, “the
balance between landowner and squatter needs to be adjusted to overcome some of the
deficiencies…while maintaining the advantages”
- Extremely controversial area that is now a heavily regulated area of law, esp regarding registered
land following the LRA 2002
- This essay argues that the reform of the laws in this area restricting AP of registered land are
justified, but there are circumstances where AP & squatting can have a place in the legal system
Adverse possession pre-2002
- Before 13 October 2003 a squatter could obtain title to either registered or unregistered land if he
could demonstrate 12 years' uninterrupted factual possession and an intention to possess the land.
- Slade J in Powell v McFarlane (1977): factual possession signifies an appropriate degree of physical
control to enable a squatter to possess the land
- Only intention squatter had to show is intention to occupy and use land as his own
- After the expiry 12 years, s15 Limitation Act 1980 prevented the 'paper' owner from recovering
possession + s17 extinguished their title
- However, Law Comm report and academic crit. highlighted that it is too easy for squatters to acquire
title…growing need to strengthen position of registered proprietors
LRA 2002 Reform- The Current Law
- Since 13 October 2003 an entirely new set of rules regarding adverse possession of registered land,
set out in Sch 6
- Adverse possession of registered land for 12 years by itself will no longer affect the registered
owner’s title
1. Howard & Hill: ‘length of time in itself is not a justification’
- The law relating to unregistered land has not been changed. The old rules also continue to apply to
registered land where at least 12 years' adverse possession had occurred before 13 October 2003
when LRA 2002 came into force
- Now, Under LRA 2002 a squatter may apply to be registered as proprietor after 10 years' adverse
possession. If the registered owner opposes the application for AP, it will be rejected unless it would
be unconscionable because of equity by estoppel, the squatter is (for some other reason) entitled to
be the registered proprietor, or where there has been a boundary dispute
- Now much more likely that a registered proprietor will be able to prevent an application for AP of
their land succeeding
Squatting can never be justified, legally or morally.
What are the justifications for the extinguishment of a landowner’s title by AP, in the light of that
owner’s EC right to peaceful enjoyment of property?
‘Land is a finite and scarce resource and the principles of AP can help to ensure its full
economic/social utilisation (Dixon)
Intro
- AP is unlawful occupation of someone else’s land without permission, the most contentious means
of acquiring land esp high value land (as in Ellis v Lambeth BC)
- Acknowledging that “land is a precious resource and should be kept in use”, the Law Com 271 sets
this point out as one of grounds for the doctrine. Historically, it has been supported by powerful
moral & policy arguments
- However, LC also recognises that where the doctrine of adverse possession is concerned, “the
balance between landowner and squatter needs to be adjusted to overcome some of the
deficiencies…while maintaining the advantages”
- Extremely controversial area that is now a heavily regulated area of law, esp regarding registered
land following the LRA 2002
- This essay argues that the reform of the laws in this area restricting AP of registered land are
justified, but there are circumstances where AP & squatting can have a place in the legal system
Adverse possession pre-2002
- Before 13 October 2003 a squatter could obtain title to either registered or unregistered land if he
could demonstrate 12 years' uninterrupted factual possession and an intention to possess the land.
- Slade J in Powell v McFarlane (1977): factual possession signifies an appropriate degree of physical
control to enable a squatter to possess the land
- Only intention squatter had to show is intention to occupy and use land as his own
- After the expiry 12 years, s15 Limitation Act 1980 prevented the 'paper' owner from recovering
possession + s17 extinguished their title
- However, Law Comm report and academic crit. highlighted that it is too easy for squatters to acquire
title…growing need to strengthen position of registered proprietors
LRA 2002 Reform- The Current Law
- Since 13 October 2003 an entirely new set of rules regarding adverse possession of registered land,
set out in Sch 6
- Adverse possession of registered land for 12 years by itself will no longer affect the registered
owner’s title
1. Howard & Hill: ‘length of time in itself is not a justification’
- The law relating to unregistered land has not been changed. The old rules also continue to apply to
registered land where at least 12 years' adverse possession had occurred before 13 October 2003
when LRA 2002 came into force
- Now, Under LRA 2002 a squatter may apply to be registered as proprietor after 10 years' adverse
possession. If the registered owner opposes the application for AP, it will be rejected unless it would
be unconscionable because of equity by estoppel, the squatter is (for some other reason) entitled to
be the registered proprietor, or where there has been a boundary dispute
- Now much more likely that a registered proprietor will be able to prevent an application for AP of
their land succeeding
