Natural Law and Property Ownership

Natural law theorists have used the biblical account of creation to explain property ownership. Robert Filmer maintains that God made Adam the owner of all properties at creation, a right which was passed to his heirs. Filmer considers Adam as an absolute monarch and justifies the same with the fact that land is often associated with political dominion. However, Locke disagrees with Filmer to the extent that in the book of Genesis God granted dominion to all mankind and not to one exclusive monarch. Locke explains that in the state of nature all were entitled to use the available resources and no one person or body had an absolute dominion in exclusion of the rest of mankind. Locke used labour as the bedrock of private property. Essentially Locke contends that when an individual puts some effort into gaining something then the result is the fruit of his labour and belongs rightfully with him. Therefore, Locke implies that labour is one of the major ways of acquiring titles to land. He further disagreed with Filmer’s requirement of universal consent since in his opinion, people would starve if they were to wait for consent of everyone. The concept of labour is important in that its combination with unowned natural resources removes such resources from common ownership to private ownership. Employment of one’s labour grants them the individual right to property. It appears that regardless of whether property is private or commonly owned, there is a level of participation of people in the political environment. While Plato advocates for communal ownership of land Aristotle was strongly opposed to the same and supported private ownership for the reason that it provided greater efficiency, justice, unity and utility. The idea that one needs a home to participate in political affairs sounds unreasonable but on further enquiry it is not a theory of stilts. Hannah Arendt suggests that the poor may be precluded from political participation by virtue of many factors including indifference to politics.

According to Arendt, a man without a house has not satisfied the needs of shelter and sustenance hence they will be preoccupied with their fulfilment to the detriment of political participation. If this is the case, then what is the place of the homeless people in England and Wales? Ownership of land determines the social, political and moral conditions of people. This prompts an investigation into the place of leasehold owners, beneficiaries of social housing and squatters in England and Wales. Indeed the aspirations of most people is to meet housing needs by moving away from homelessness. At this point, it can be argued that the evolution of property rights has created perceptions a good title. In the ensuing discussion, this paper will look at various doctrines and how they have changed over time and affected ownership of property. The doctrine of adverse possession is a controversial one that allows trespassers to defeat the rights of the paper owner to the land. Traditionally, a person held land on absolute terms such that he had a good title against the rest of the world. An evidence of title granted him quiet and absolute enjoyment of the property. However, like any other society, there are inequalities to the extent that there are people with no titles to land. ‘Squatters’ is a term that has been used over time to refer to those who encroach on land of rightful owners. It follows that the homeless and title holders have a different relationship with property. While one party is struggling to gain possession the other is flourishing in possession to an extent that he has not raised objection to his trespass for at least 12 years. Section 15 of the Limitation Act 1980 espouses the principle of limitation which supports the claim of adverse possession. The doctrine permits what would otherwise constitute a criminal offence that of stealing another’s land. It allows squatters to have a stake in another person’s land. it can be interpenetrated as a way of punishing landowners who do not make use of their land so given that a person can stay in that parcel for more than 12 years without raising an objection. Under normal circumstances, the owner of the piece of land adversely acquired should have the right to recover possession by simply ejecting the trespasser. However, common law jurisprudence indicates that where a person occupies a piece of land without the owner’s permission and the owner does not repossess his land within a prescribed time, he will be estopped from claiming title to that land.

Even though the doctrine of adverse possession was operative as early as the Roman rule, English common law precludes its application to Crown land. It means that adverse possession could not be claimed on government land even back then. Limitation Act of 1623 provided that a previous owner’s right to repossess his land would be extinguished if he did not act within a fixed time limit. It appears that squatting is one way of utilising land. Squatters may have different reasons for occupying another person’s land including being homeless, in protest or for other reasons. Before the enactment of the Land Registration Act 2002, a squatter had to merely prove that possession took place and there was intention to possess the land. In Powell v McFarlane the court held that possession did not necessarily mean actual possession. In this case, Mr McFarlane had since age of 14 allowed his cows into the plaintiff’s land and this was found to amount to possession. However, he failed on the second test of intention and the court found that just by letting the cows into the land there was no intention to possess the land. Again adverse possession will not arise where the squatter occupies the land with consent of the owner. Dillion LJ in BP Properties Ltd v Buckler found that a claim of adverse possession would fail where the defendant had been expressly allowed by the plaintiff to live on the land rent free for the rest of his life.

The upshot of the above is that estate owners needed to be vigilant with properties that they owned but did not use at least frequently. Could it be that the law frowned upon disuse of land by land owners so much that a trespasser occupying the land will be deemed to acquire the land after 12 years of continuous use without objection from the owner? Because laws are a reflection of societal norms it is possible that this is what the societies in England thought about disuse of land. Over the years, squatter rights have become restricted in scope and the relationship between people and land has been redefined by case laws and amendments to legislations. Adverse possession has since been distinguished as regards registered and unregistered land. Pursuant to section 15 of Limitation Act 1980, a squatter will acquire good title in an unregistered land after an adverse possession of 12 years or more. The paper title owner is thus precluded from repossessing his land from the squatter. For registered land, acquisition of title by adverse possession is a little bit difficult. Schedule 6 of the Land Registration Act 2002 stipulates that a person being in adverse possession must apply to the registrar after 10 years of adverse possession. The registrar will then proceed to give notice to the registered proprietor so that they may object to such adverse possession by the squatter. If the registered proprietor does not object to the application, the squatter will become the registered proprietor of that land within 65 days of notice being issued by the registrar.

It is discernible form the above that the law seems to create a distinction between a registered and unregistered landowner. While the unregistered land owner is not given any notice of intention to adversely possess the land, the registered owner has the benefit of notice and subsequent objection. Before the Land Registration Act 2002, both registered and unregistered land owners suffered the same fate for adverse possession under common law for there was no distinction between the two titles. Introduction of special treatment for the registered land owners can partly be attributed to the Pye v Graham Case where the court made a decision on adverse possession claim at a time when the Land Registration Act 2002 was almost coming into force. Mr and Mrs Graham were through an agreement granted permission to graze their animals on the disputed land. After the expiry of the agreement, the Grahams continued to use the disputed farmlands for grazing despite knowing that Pye intended to apply for planning permission which was never done. When Pye applied for gain possession of the land in 1999 his action was defeated by adverse possession of the Graham family. The court found that the Grahams had used the land to the exclusion of the owners without their permission and they had remained in possession farming the land just as they did their own. Lord Brown Wilkinson went ahead to note that dispossession of the paper owner does not necessarily has to be an ouster or confrontational in nature as in Rains v Buxton, but simply refers to continuous possession by the squatter. Aggrieved by the House of Lords decision Pye appealed to the European Court of Human Rights for compensation. He alleged that his rights under the ECHR Protocol 1, Article 1 had been violated to the extent that he had the right to peacefully enjoy the possession of his land without interference. The ECHR found for Pye against the UK government for his loss of property. As a landowner, he had been denied the right to his land without compensation on the basis of adverse possession. In response to the ECHR judgment, the UK government referred the matter to the Grand Chamber for final determination. Grand Chamber found in favour of the UK government holding that Pye’s loss of property by operation of adverse possession was not a breach of his rights under article 1 protocol 1 of ECHR. It considered the Land Registration Act 1925 and Limitation Act 1980 as laws regulation the use of land between individuals by prescribing limitations that must be complied with.

This decision by the Grand Chamber can be interpreted to mean that the government can sometimes determine the relationship with property. If the government can control the use of land by sanctioning adverse possession, then it is equally determining people’s relationship with property thereby affecting their position in the society in light of social mobility. An unregistered owner’s only solution is probably an application for voluntary first registration under the Land Registration Act 2002 to protect their position in respect of the relevant land. Prior to the decision of the Grand Chamber in 2006 the High Court had in 2005 found that adverse possession under the Land Registration Act 1925 was inconsistent with Article 1 of the First Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms. Applying section 3 of the Human Rights Act 1998, the court found that the law on adverse possession was in breach of the Convention since it did not provide for compensation of the owner of the land. As of 2012, squatting was rendered a criminal offence in England and Wales pursuant to section 144(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA). The same section incorporated the power to enter premises. This section means that any person squatting on another’s land without their permission can be prosecuted under section 144 of LASPOA. It follows that squatters may no longer have any rights on another’s land. Normally, a squatter could be only be dealt with under civil law under the tort of trespass. Justice Ouseley in Best v The Chief Land Registrar & Another stated thus:

“Parliament should be taken to have thought that the public policy advantages of adverse possession at common law meant that the mere fact that the adverse possession was based on criminal trespass did not and should not preclude a successful claim to adverse possession.”

In consideration of the above laws on adverse possession, it is deducible that there has been attempts in both England and Wales to respond to perceived injustices caused by the law on adverse possession. The responses can be seen in the enactment of Land Registration Act 2002 and LASPOA 2012 both of which aims at protecting the interests of original property owners to the exclusion of squatters. Criminalisation of squatting raises pertinent questions regarding land whose owners have abandoned or disappeared. It will be interesting to find out one would still be prosecuted for being a squatter in such a land or house. The overall takeaway from the evolution of law on adverse position is that a title acquired under adverse possession is no longer perceived as a good title hence the attempt to abolish squatters’ rights. The plight of squatters and that of the homeless is more or less the same. In both instances, they do not have proprietary interests in and land if they do it is subject to confirmation by the courts. It is not possible that the preoccupations of home owner or absolute title holder will be similar to that of squatters or homeless individuals. Shelter is one of the basic needs of any human being and this has been provided by the Human Rights Act 1998. Lack of shelter thus implies lack of necessity which in turn will make such persons more preoccupied by fulfilling that another needs as opposed to concern with politics. Their political participation will be limited and may dissociate themselves from politics altogether as they consider themselves having no place in the legal system.

Easements gives one the right to use another person’s property for a specific purpose without dispossessing the owner. It is an exception to trespass to an adjacent or neighbour’s land. The legal position on easements was long established in Re Ellenborough in 1956. Lord Evershed MR in the preceding case stated that the two conditions for the existence of an easement including the relationship between the dominant and the servient land. Therefore, an easement should be one that improves the utility of the dominant land as well be reasonably essential for the use of that land. A right of way of another person’s land will be deemed to be normal use of land and use that grants the person opportunity to access and enjoy his own adjacent land or building. The above case has been the position on easements for a long time although there has been different interpretations by judicial officers. But such variance in interpretation has not been radical or disruptive in most cases. Hence the law has been and still defines the boundaries of easements and prescribes the scope of a valid easement. It follows that law on easements has set standard for a proper easement that does not entail taking control of the land itself to the detriment of the owner. Over time, the above position was recently changed by the Supreme Court of the UK in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd. In a decision that has been criticised for stretching the law beyond its limit, the majority enunciated a new perspective of easements. The Supreme Court found that timeshare owners (with interests in a given land) could demand the use sporting and recreational facilities in adjacent establishment. It was the majority’s opinion that the grant to the timeshare owners under the agreement not only gave them the right to use the swimming pools in the adjacent land but also a future use of the same. The import of this decision is that easements were extended to leisure activities which, it has been argued, could open flood gates for other people to claim easement rights in other peoples’ properties. Essentially, the law evolved in 2018 with as regards the scope of easements.

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Considering the above case, it is clear that the law is not constant in its definitions of interests in land and nature of relationships arising therefrom. And each time the law changes, it alters our relationship in land. Some interest in land could have been unthinkable in 1880 but totally acceptable in 2019. Just like law on adverse possession, other laws defining interests in land have evolved and that which is good title can only be valid through reference to the current law.

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