The Sanctity of Property Rights: A Comparison to the Right to Life

Introduction

The concept of property rights has been argued to be sacrosanct and inviolable. According to John Locke, property is the result of one’s labour and skill. He contends that people concede to the government certain rights in return for preservation of their property. As a general rule, the right to property is absolute and can only de defeated by a valid claim prescribed in law. Natural law presupposes that each person has the right to acquire private property and can only be deprived of it subject to due process of the law. The right to property has thus been compared to the right to life in that both are important and are subject to limitation by the state. The question as to the efficacy of absolute nature of property to the extent of comparison with life remains to be answered in the ensuing text.

Adverse possession

Interpretation of the right to property has been very controversial. Proponents of free markets maintain that the right to property is absolute and inviolable but this has been challenged by the fact that other people can lay claim to the same land and defeat that of the registered owner. It is not disputed that a registered owner has an absolute title to the land. The question is whether that absolute title grants him an absolute rights against all other claims to that land. A person who resides on another’s land which does not belong to them, without the permission of the owner, may have the right to apply to be registered as the owner of that property after 12 years. The doctrine of adverse possession has been known to English law for a long time and has evolved over the years so much that it is not as it was 50 decades ago. The changes in the law of adverse possession is reflected in the decided cases over the years.

In Asher v Whitlock, Williamson built a cottage on an unregistered land where he lived with his wife and daughter. Upon his death, he left the land to his wife until she remarried and the rest to her daughter. Williamson, having been a squatter on the land for more than 20 years in which the unregistered owner did not claim possession, had the right to pass title to his daughter. This case is an example of adverse possession by claiming possessory title. It means that the law allows squatters to claim legal ownership of land where they are in occupation of land for at least twelve years without the consent of the owner, and without the owner taking action to recover possession. Decades of application of Limitation of Acts have precluded land owners from taking legal action to recover possession of land where the same has not been commenced within a prescribed period of time after the possession began.

Adverse possession must meet certain requirements to be valid. One must demonstrate that his occupation of the land was one that was continuous over the twelve of more years of possession. A person claiming possessory title must show that he was occupying the property without any existing license or agreement. And that anyone observing his occupation of the land should conclude that it was obvious, open and notorious. Again the possession should be actual in the sense that he should be actively in possession of the property. Finally, the person must be using the property and excluding other people from using the same property. When all the above conditions have been met then such a person shall be eligible to apply for adverse possession of the land in question.

Rules of adverse possession emanate partly from the Limitation of Actions Act 1980. Adverse possession operates more like estoppel against the owner of land such that a party’s failure to commence legal proceedings within the prescribed time will lose the right to sue. In Ellis v Lambeth BC, a squatter successfully affirmed his right to title against a local authority and in the end acquired property worth 200,000 pounds. Therefore the statute of limitations violates the right to property one individual against the other. The position of a squatter in lad is thus elevated by the statute of limitation compared to the true owner of the land. At this point, there is sufficient doubt as to the absolute nature of the right to property and as to whether property is analogous to the right to life.

The House of Lords in Pye v Morgan made a finding on adverse possession on the brink of changes to the law on the same in 2002. While Morgan had occupied the property under license in 1983, the subsequent occupation till 1997 was by default and without any license or agreement. In their judgement, the House of Lords held that Mr Graham had acquired the title by adverse possession. Considering the value of the land involved, Pye appealed the case to the European Court of Human Rights on the basis of breach of fundamental human rights. In fact they were successful in the international court. However, on appeal to the Grand Chamber of the European Court of Human Rights, Pye’s argument failed on the basis of validity of UK policy reasons.

Notably, even the notion of property as a human right was rejected by a European judicial body. It therefore leads to emasculation of the idea of right to property being analogous to life itself. The right to property is largely undermined by the claims of other people on the basis of adverse possession. As a result of the Pye decision, Land Registration Act of 2002 came into force and effectively reduced the 12 year rule to 10 years in cases of registered land. The effect of this change in land law was that it now made it much more difficult for squatters to acquire title to registered land by virtue of possession over a prescribed period of time. Further, section 144 of LASPOA criminalises squatting on land thus has a big impact on the doctrine of adverse possession under the LRA. The new changes to the law on adverse possession point to a shift towards an absolute right of property even though it has been challenged in a recent decision.

Proprietary Interests and Private Nuisance

Since 1907, it has been a requirement in law that a claimant in private nuisance cases must have a proprietary interest in the land. In Malone v Laskey, it was held that the claimant could not sue for nuisance because she was merely a licensee but not an owner of the land. Therefore, her action failed by virtue of having no interest in the land where nuisance had taken place. However, this position was changed in the case of Khorasandijan v Bush, where it was found that a lady without proprietary interest in the concerned property had the right to apply for injunction against an offending person. The decision was based on an earlier decision Dyson Holdings Ltd v Fox where the wife of the owner of property was found to be entitled to relief regardless of lacking proprietary interest in the property.

However, the original position above was restrained in Hunter v Canary Wharf in 1997. Considering that nuisance concerns property rights, it was only appropriate that a claimant must have proprietary interest in the property that has been compromised. The upshot of the foregoing is that the right to property is held in high regard, so much that lack of it imputes incapacity in law. This invites a presumption of absolute nature of the right and its importance in life. The above cases therefore support the notion of property being as important as life itself. However, just because lack of proprietary interest bars you from bringing one action in, while you can commence a plethora of other actions, does not bring property any closer to life itself.

Undue Influence

The right to property is subject to different interests depending on the circumstances. The law presupposes that partners in joint ownership of land should be protected especially where the property is charged by a bank. There have been a litany of cases concerning undue influence with regard to charges and mortgages on properties. Interestingly, the most affected are women with joint interest in properties with their husbands. Decided cases point to a tendency of courts to interfere with the husband and bank’s right to property. In the landmark case of Barclays Bank Plc v O’Brien the House of Lords found that the wife had equity against the husband as a result of misrepresentation leading to acquisition of her signature on the mortgage documents. Subsequently, the House of Lords has adopted a protective approach towards the wife and the bank in cases where the signature of wives have been secured by undue influence by their husbands. These cases show that the right to property by a person is subject to other encumbrances that limits how one enjoys their interest.

Doctrine of terra nullius

This is a doctrine that has in the past been used by states to justify claim territories under international law. In Mabo v Queensland, the High Court of Australia recognised native title to land in Australia. In their ruling, the court held that the doctrine of terra nullius did not apply to territories where there were existing inhabitants, regardless of such inhabitants being considered as ‘uncivilized’. Therefore, the laws of England applicable to the case at hand were those concerning lands already inhabited by people to the exclusion of laws concerning uninhabited lands. As result the existing customary laws at the time of occupation by the Crown were found to take precedence over grants by the Crown. Hence indigenous land rights were never really extinguished in the first place. Essentially, this case rejected the traditional notion of absolute beneficial title of all lands. It was the opinion of the court that the Crown’s title was not absolute but rather, a radical title. As a consequence, this decision presents a challenge to the absolute nature of title. Further, it buttressed this point by stating that even the native title could still be extinguished through legal intervention by the government.

Conclusion

In the end, property in land can be equated to life itself on paper but in reality the right to land is limited by an array of factors. As seen above, doctrine of adverse possession is one such limitation to property. Despite attempts by parliament to offer additional protection to registered property owners, the doctrine of adverse possession still remains much alive hence property rights in land cannot attain the status of life, at least today.

Bibliography

Table of Cases

UK

Asher v Whitlock (1865) QB

Bank Plc v O’Brien [1994] 1 AC 180

Best v The Chief Land Registrar & Anor [2014] EWHC 1370

Dyson Holdings Ltd v Fox [1976] 1 Q.B. 503

Ellis v Lambeth London Borough Council - [1999] All ER

Hunter v Canary Wharf [1997] AC 655.

JA Pye Oxford Ltd v Graham [2002] UKHL 30

Khorasandijan v Bush [1993] QB 727

Malone v Laskey [1907] 2 KN 141

Royal Bank of Scotland Plc v Etridge (No. 2) [2002] UKHL 44

Australia

Mabo v Queensland (No 2) ("Mabo case") [1992] HCA 23; (1992)

European Court of Human Rights

JA Pye (Oxford) Ltd v United Kingdom, ECHR App No 44302/02

JA Pye (Oxford) Ltd v UK (App No 44302/02) [2008] 1 EHRLR 132, Grand Chamber

Table of Legislations

Land Registration Act 2002

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Limitation of Actions Act 1980 s.15

Journals

Burns F, Adverse possession and title-by-registration systems in Australia and England. (Melb. UL Rev. 35 2011)773.

Robert BP, Blackstone’s Theory of the Absolute Rights of Property. (U. Cin. Law Review 1985)

Books

Fehlberg B, Money and marriage: Sexually transmitted debt in England. Law and Families. (Routledge 2017)135-158.

Finchett-Maddock L, The changing architectures of adverse possession and a political aesthetics of squatting’, in Fox O’Mahony, L.,O’Mahony, D.and Hickey, R.(eds) Moral Rhetoric and the Criminalisation of Squatting: VulnerableDemons? (Routledge 2015)

Gray KJ, and Gray SF, Elements of land law. Oxford: (Oxford University Press 2009).