Adverse Possession – A Means of Properly Exploiting Land

In my opinion, land must be ensured to be exploited properly to benefit all of society by allocating title to one person, and ensuring that they then guard that title vigilantly. I believe that, if this title is not guarded vigilantly, it should be allowed to be adversely possessed. It is often argued that adverse possession is a means that essentially permits a squatter to lawfully “steal” [Cooke, ‘Adverse Possession: Problems of Title in Registered Land’ (1994)] land. However, I personally would argue that, due to the value and scarcity of land, adverse possession is an essential tool that ensures land is not neglected but is instead correctly exploited. If a paper owner neglects his land for a long period of time, and a squatter is seen to be making use of the land that the paper owner has simply slept on, would it not be in the public interest to allow said squatter to adversely possess that land?

What is adverse possession?

Adverse possession is a means by which title to both registered and unregistered land can be acquired through taking possession of that land for a requisite period of time. Although; the rules governing each type of land differ, both types require proof of factual possession and intent to possess in order for a claim to be brought in adverse possession. This was established in the case of Powell v McFarlane (1979) 38 P & CR 452.

Unregistered Land

According to Section 1 of the Limitation Act 1980; regarding unregistered land, a squatter will acquire tittle after being in adverse possession for 12 years. Perhaps this is fair: if land is unregistered and unoccupied for a period of 12 years, the valuable and scarce resource is being wasted [Dockray, ‘Why Do We Need Adverse Possession?’ (1985)]. Thus, by enabling the squatter to gain an automatic right to the land after 12 years’, an active use of the land would be promoted, which in consequence would benefit society more so than if the title owner continued to sleep on his rights. For example, from a moral perspective, a homeless man would gain more benefit out of the land than the owner who has neglected it for over 12 years.

Registered Land

As far as registered land is concerned, Schedule 6 of the Land Registration Act 2002 created a new regime, which has made it easier for a registered proprietor to prevent an application for adverse possession of their land being completed. Under the new system, the adverse possessor must make an application to the registrar after 10 years of possession [Schedule 6, section 1(1) LRA 2002]. The registrar then notifies the registered proprietor about the claim being made over their estate, which gives him the chance to object and start exploiting his land properly. If an objection to the registration of new title is not lodged, then the adverse possessor will be registered as the new proprietor within 65 days of the notice being issued (Land Registration Act Schedule 6(4)). This applies even if the notice did not reach the registered proprietor. Conversely, if an objection is lodged, the claim to the land will fail. However, the registered proprietor must ensure that he takes steps to evict the squatter. If he fails, then the squatter can make a further application after two years of remaining in adverse possession [Schedule 6, Section 6(1) LRA 2002].

I would argue that these new changes unfairly disadvantage claimants, and thus encourages paper owners to sleep on their rights. Alternatively, it could be argued that the Land Registration Act 2002 has taken a corrective justice approach to allow paper owners to rectify the misuse of such a scarce and valuable resource [Cobb and Fox, ‘Living Outside the System? The (Im)morality of Urban Squatting after the Land Registration Act 2002’ (2007)]. This is because the amendment gives the proprietor another chance to exploit their land correctly, and if they then fail, the law also gives the adverse possessor a chance to make a further claim. Therefore, if a proprietor continues to sleep on his right to land, it is only fair that another individual should be able to adversely possess his land and make better use of it.

Ex turpi causae non oritur actio (no right of action arises from a shameful cause)

Whether this traditional maxim still applies in modern land law is a debatable subject that extends beyond the realms of this article.

Nevertheless, if the maxim applies, it can be argued that land should be properly exploited to benefit all of society, rather than just particular members who gain land to exploit through illegitimate means (intentionally trespassing property that is known to be occupied). This is illustrated through the enactment of Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This Act stipulates that squatters ought to be arrested if they have adversely possessed the land through trespassing. It also enabled the Land Registry to reject applications for registration on the basis that the requisite period was achieved through prohibited acts [The Queen on the application of Best v The Chief Land Registrar v The Secretary of State for Justice (2015) EWCA Civ 17].

Conversely, it can be argued that in practice such a maxim ceases to still apply. For example, a similar approach taken by the Land Registry was questioned in the judicial review case of R (Best) v Land Registry [2014] EWHC 1370 (Admin). The court in this case determined that their practice was wrong, and that adverse possession can be based upon conduct that discloses a criminal offence. This is because there was a strong countervailing public interest in recognising title, where adverse possession had long continued without objection from the registered owner. The Court of Appeal also suggested that it would be absurd if section 144 had this effect as one could still acquire title to the land through adversely possessing in a way that avoided a breach of section 144 [(2015) EWCA Civ 17]. Although, this was a High Court decision and thus is persuasive, rather than binding, the decision can be argued to draw a distinction between the criminality of squatting in residential buildings, which gives adverse possession its bad name, and the ability of long-standing squatters to acquire title. I argue that the latter is the correct approach as it enables land to be exploited properly by maximising its usage and beneficial potential. From a moral perspective, it also enables those without a home to make use of property that is left unused.

Conclusion

If title is not guarded vigilantly, then land should be able to be adversely possessed. This ensures that land remains in circulation and is actively used, and thus exploited properly. It is also for the benefit of society, because it enables more people to gain access to the scarce and valuable resource of land if the land owner is not guarding his title vigilantly. Both Section 114 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, alongside the Land Registration Act 2002, can be argued to be harsh on claimants, but they do not remove the need for owners to be vigilant in guarding their title. Therefore, I argue that the current laws have struck a correct balance between encouraging land owners to guard their titles vigilantly and enabling land to be adversely possessed if that same owner sleeps on his rights.