Adverse Possession in the UK

Introduction

The concept of adverse possession is not something unique to the law of the United Kingdom. Most of the countries across the world delivers and accepts the same kind of right for the people under the civil matter. However, the extent of this concept varies from one country to another. Adverse Possession or in colloquial language ‘Sqautter’s rights’ might seem a harmless right with no consequences, the concept in United Kingdom has a more permanent effect than any other countries in the world. The concept of adverse possession in the country of United Kingdom has many strict edges and such strict edges in law provide the adverse owner with a better title than the real registered owner after a certain time and it has its own sets of advantages and limitations. In this essay, we shall discuss the various aspects of adverse possession, how adverse possession has emerged as a concept in the country of UK and a critical commentary on the advantages of adverse possession and the dark side of such law in respect to lands of the country with special reference to several renowned case laws.

What is Adverse Possession?

Adverse Possession or long term possession by a certain person can be defined as when a person who is not the legal owner of a piece of land, occupies a certain piece of land for an amount of time that has been set out by the law of the United Kingdom, the occupied owner shall have a better title over the land than the actual registered owner, only when both of them satisfies the time period according to the Limitation Act, 1980. While it is true that a property owner has the absolute right to recover a possession of a land from a trespasser or an occupier by the legal process of ejectment, it is the law of the United Kingdom that has created this special statute of limitation that provides with the trespasser or the adverse owner of the property with a better title than the actual owner. According to the provision of the Limitation Act, 1980, a period of 12 years is granted to the actual owner of a property to reclaim a property. This is the period after which an occupier or an adverse owner of the land who has said to be the long-term user of the same land, can apply for registration of the land herein.

Element of Adverse Possession

While the elements of adverse possession is unique from one case to another and thus the elements of an adverse possession wildly changes its elements from one case to another as well. However, there are some common elements of adverse possession that are required to be fulfilled before anyone can apply for the registration of the land in the name of the adverse owner herein:

A valid proof referencing the non-permissive use of the property by the adverse owner.

A non-permissive use of the land in the nature of exclusive and open i.e. such possession of land by the adverse owner should be known to other persons as well of the particular area whatsoever.

The possession of the certain land has been possessed by the adverse owner for the fixed amount of statutory period as has been discussed in section 15 of the Limitation Act of 1980 in the United Kingdom.

Adverse Possession and the due process of law

Although from the abovementioned definitions and elements, it might seem that the concept of adverse possession only needs a few steps to be completed in favor of the adverse owner but in reality, the concept of adverse possession might seem fancy theoretically than in real. The practical approach to adverse possession is ruled by the Limitation Act, 1980 and the Land Registration Act, 2002 of the United Kingdom. There are two types of adverse possession – a) adverse possession of unregistered land b) adverse possession of registered land.

Adverse Possession of Unregistered Land

According to section 15 of the Limitation Act, 1980 herein, if an unregistered piece of land is possessed by a person who is not the legal owner of that particular land, the title of the said land automatically goes into the hands of the adverse possessor and title of the paper owner is said to be barred automatically after a period of 12 years.

Adverse Possession of Registered Land

Unlike the process of the unregistered land, the possession of registered land by long term use does not have any special barring ground under the limitation act and section 96 of the Land Registration Act of 2002 governs such concept of adverse possession. In the case of registered land, a person who has adversely possessed the said piece of land for more than 10 years, he/she can apply for registration for the title as a legal owner of the said land. However, in this case, the 10 years limitation is just a minimum time and for the purpose of Crown Foreshore, it should a time period of 60 years. However, in the case of possession of registered land, if the actual owner of the property shows up and reclaim the title of the land, the adverse possessor shall not have any right over the pieceo of land herein. Under only certain grounds as mentioned under the Land Registration Act, 2002, schedule 6, paragraph 1, the adverse owner can retain the possessed registered land – i) For reasons unconscionable to the actual owner of the property, no objection can be filed ii) the adverse possessor is the owner of the adjacent land and has mistakenly possessed the particular piece of land iii) The adverse possessor has any other title over the piece of land. In the case of Baxter v Mannion the concept of such adverse possession has been mentioned above was explained by the courts and distinction was made between unregistered land and registered land for the purpose of adverse possession herein.

Adverse Possession or Long Term use of a land and title claim – A critical analysis as to what extent the grounds of adverse possession can be applied

With the theoretical concept of adverse possession in land, various questions arise as to what would be nature of that particular land and how an adverse possessor would be able to treat the piece of land as his property. The title of claim in this regard has various grounds and it is highly disputed in several English case laws and in this segment, we shall critically analyze many of the aspects of adverse possession herein.

The Relativity of Title

It is one of the principle that is established in the fundamentals of the English law that if the an adverse owner who has fulfilled the abovementioned grounds of the limitation period of UK, shall be regarded to possess good title over that certain piece of land and if anyone trespasses that certain land, the adverse owner shall have the right to sue that person. This concept of relativity of title was explained in the case of Rosenberg v Cook. Also, the principle of long term possession would have better claim on the property was first established in the case of Asher v Whitlock. In this case, it was said that the heir who had possessed the land for more than, shall have the right to adverse possession of that certain piece of land in absence of any better claim. However, such relativity of title was once again questioned in the respect of trespassing. According to common understanding, an adverse possessor is nothing but a trespasser on a piece of land that he knew of to be not registered in his own name. Thus, in the case of another trespasser trespasses the said land adversely possessed by the first trespasser, it would be principle of the English law that the first trespasser i.e. the adverse owner of the land shall have better right over the land and the second trespasser cannot argue with the first trespasser stating that the land belongs to its paper owner herein.

Transfer of Possessory title by will or by intestate

The relativity of the title herein is to be examined in the case of transfer of such possessory title in case of by will or by intestate. It is to be mentioned under the Land Registration Act, 2002 that a claim of possessory title is always good against the rest of the world except the registered owner of the land. Thus, as it has been mentioned under section 15 of the Limitation Act, 1980, the possessory claim is better against the paper owner of the land as well. Hence, if we critically mention and analyze the judgements in the cases of Doe v Barnard, Perry v Clissold and Calder v Alexander, the judgments have been pronounced in the favor of transfer of possessory title to any other person by will or intestate herein. In the case of Perry v.Clissold, Lord Macnaghten was of the view that a possessory claim in the nature of adverse possession shall have good title against rest of the world and as a good title over a piece of land, it would be absolute right of the adverse owner to transfer such piece of land to any other person by will or to its owner by intestate herein.

Transfer of Possessory title by sale or gift deed

As transfer of possessory title could be done by will or by intestate, the same can be done by sale or gift deed as well. Under the English law it has been laid down in the case of Simpson v The Council of the North West County District, if an adverse possessor has a good title over a particular piece of land, can be sold by sale or it can be gifted to any other person as well. The same view was held in the case of Mount Carmel Investments Ltd v Peter Thurlow Ltd, a possessory title can be transferred to the other person by sale or by gift deed and the claim in the land would be in the nature of adverse possession. Thus, even in the case of transfer by sale, claim in the land would be insecure unless and until it has been registered according to the provisions of the law of the land. According to the Land Registry Practice Guide 5 herein, in case an adverse possession was transferred to another person by sale or gift deed, it shall be regarded or triggered as being the first time registration under the Land Registration Act, 2002, section 75(2). It is to be said that for the person who has acquired the land by sale or by gift deed from the adverse possession, no provision of long-term use shall be needed and it would be the duty of the new acquirer of land to register the land in his/her own name within first two months of such sale or gift. Also, it does not matter whether the particular piece of land was registered or unregistered herein, in case of sale of gift, the new possessor of the land shall have the better title and shall trigger the first ever registration of the land in his/her own name herein.

Transfer of possessor title by way of succession

Just like the abovementioned two provisions herein, in case a land is transferred of possessory title to another person by way of successor, it would be valid and it would be considered to be of good title. However, the same would be in the nature of adverse possession only unless and until the same has been registered in the name of the successor herein. In the case of Willis v Earl of Howe, it was observed that in case of transfer of possessory title by way of succession, the other person i.e. the successor shall have a good title over that piece of land that would bar the title of the true owner of the land herein. The same view was held in the case of Treloar v Nute, the same view was upheld by the court and it was said that the successor and the previous owner must have completed the characteristics of possessing the piece of land for a statutory period of 12 years from the first owner herein.

Critical Analysis

Hence from the abovementioned case laws and the provisions defined in the Land Registration Act, 2002 and the Limitation Act, 1980, it can be said that the extent to which the possessory title in the nature of adverse possession can go on has a wide range and the concept of adverse possession always has better right over the true paper owner of the land herein. The courts of the country also favor the transfer of possessory title to their heirs and also provides with the right to sell or gift such land under such possessory title as well. Thus, if we critically analyze the abovementioned provision, it can be said that adverse possession for the statutory time period provides for a proper distribution of land and it does not keep an unlimited time period for the paper owner of the land. This also provides for better entitlement of a land in case a land is disputed in the name of the registered owner and to evade the same, the owner has fled the land herein as we can see in the case of Willis v Earl of Howe. However, it has its own limitation as well. A person who has possessed a land for long term or adversely for more than 12 years can apply for registration of the said piece of land and according to the provisions of law that it is only after the registration of land that a title is established and not otherwise. However, such time limit for registration does not have an upper limit. Thus, from a study, it has been seen that most of the adverse possessors do not want to apply for registration as it might alert the true owner and always tend to sell the land first. Thus, it can be critically held that for the purpose of better governing of this sector of land dispute, it is the duty of the authority to impose a time limitation after which an adverse possession ceases to exist and the land becomes the property of the government. An infinite time period granted to the adverse possessor to claim the good title over a land only negates the possibility of having a true owner and it shall induce the habit of having a piece of land without any registration as well.

Conclusion

The government and the authority of the United Kingdom has already recognized the pattern of the problem and steps already has taken where it has been proposed that the extent of such long-term use shall be reduced and the Land Registration Act, 2002 shall be amended to that effect to limit the scope of the adverse possession as well.

BIBLIOGRAPHY

Black, Henry T. (1979). Black's Law Dictionary, 5th ed. St. Paul: West Publishing Co. p. 49

Merrill, Thomas W.; Smith, Henry E. Property: Principles and Policies. University Casebook Series (2017). (3rd ed.). St. Paul: Foundation Press.

Cheshire and Burn, Modern Law of Real Property (2011), (18th ed.), at pp. 1133-1134

Goodman, Michael. “The Morality of Adverse Possession of Land.” The Modern Law Review, vol. 31, no. 1, 1968, pp. 82–84

WYLIE, JOHN. “ADVERSE POSSESSION—STILL AN AILING CONCEPT?” Irish Jurist, vol. 58, 2017, pp. 1–26

Law Commission/H.M. Land Registry, Land Registration for the Twenty-First Century, (1998), No. 254, at para. 10.11.