Property Law

Through the unauthorized occupation of another person’s land for a long enough time, it is possible under certain constant conditions to acquire ownership by adverse possession. According to the English Law, adverse possession implies statutory restriction imposed on an individual in using the land, and which a legal action must be taken within a stipulated time. The historical roots of adverse possession date many centuries to a time before written deeds were used as evidence of ownership. At that time, in the absence of any claims to the contrary, a person who occupied a parcel of land was presumed to be its owner[1]. Today, adverse possession is, in effect, a decree of limitations which prohibits legal owner of a land from claiming its title when they have done nothing to oust an adverse occupant during the statutory period. From the adverse occupant’s standpoint, adverse possession is a method of acquiring title by possessing land for a specified period under certain conditions[2].

The rationale given for the restrictions imposed on the land is diverse, illogical, and sometimes they contradict each other. It is presumed that time is always a great enemy of truth, as such; it becomes detrimental for witnesses and courtroom arguments to be apprehensive of events that took place in the past. It is uncertain that adverse possession is a punishment that is inflicted on the negligent land owner who has allowed an adverse trespasser to occupy the land. In addition, what is uncertain about the whole statute is the reward given to the occupier for utilizing the land. With the current resurgence in the sustainable growth and development, the society has realized that not all the available land in the society can be put into good use. It is presumed that a neglectful owner cannot always be punished duly without the occupier being present, as it would adversely affect the rationalization process. Consequently, the owner who has a record of neglecting the land holding certification, to the disadvantage of his/her neighbors’ land holdings will, ultimately, be punished through depriving him the rights to land holding without the presence of trespasser.

Most of the jurisdictions allow acquisition of land title through the means of adverse possession and also allows a proprietor who is dilatory registered to prohibit adverse occupier’s application. As such, it contradicts the proposition that outlines the title subjected to adverse possessor, which involves land utilization that would have been unused in the long run. The jurisdictions are currently functioning in South Australia and parts of New Zealand[3]. This was adopted by England through the enactment of Land Registration Act 2002 that outlined the provisions of registered land system[4].

The reward and punishment approach provides little foundation on the land holding and ownership given the imminent effect of the statutory limitation timeframe that the legislation stipulates. The trespasser who has utilized the land can be ejected from the land, by the owner, after it has been proved that the limitation period is not sufficient to summon the operation of the statute. In addition, it might be proved that adverse possession cannot be adequate or relevant penalty to be accorded to the purchaser who has failed to discern and inspect the occupation that is enjoyed adversely by the vendor. This is evident when land owner lacks knowledge on the existence of subterranean trespasser.  Mulcahy outlined the scenarios in which property inspection did not provide equitable interest imposed to the occupier[5]. Ideally, property inspection has been deemed unnecessary in unearthing the encroachment of adverse occupier of part of the land but not the adverse occupier of the full ownership or possession of land. Therefore, as reliance on inspection aims at discerning the occupiers’ interests is not always certain regarding to whole goods or parcels[6].

In addition, recollection and memory of witnesses is one of the many proffered rationalization. It is considered as a factor that weakens with each period, is less significant when considered with the land registry’s public records, and register for public deeds. However, it is in the interest of the public that various lawsuits are should not be prolonged and that the litigation limit should be implemented—limitation statutes incorporate statutes of repose.  It is vital that peaceable and established possession needs to be secured in an attempt to realize the effectiveness in the whole operation. The limitation statute aims at achieving peaceful coexistence among the people. However, the claims that have been long overdue have posited cruelty and injustice rather than peace and harmony among individuals[7].

Restrictions have been in use under the LRA 1925, and they have been provided with a superior role in the LRA 2002. Although not chiefly designed to protect third-party interests directly, the entry of a restriction may well have this effect by controlling the registered proprietor’s ability to sell the land or otherwise transfers it. In the case of LRA 2002, the approach taken is different from the one used in LRA 1982. It does not apply in the context of registered land. Therefore, in contrast to unregistered land demonstrated by LRA 1982, the title of the ‘paper owner’ is not automatically extinguished after the running of a period and adverse possession. It also stipulated that, depending on the nature of land, lesser acts of possession may be sufficient. Ideally, the land possession is always exclusive and open to scrutiny[8]. Consequently, in the case of adverse possession claims, dispossession of property is vital and the occupier should demonstrate the intention to possess the land. The Section 17 of the 1980 Act provides that for a freehold, the rights and occupier’s ownership will be extinguished when the limitation period expires. It has been stipulated to be between 10 and 15 years. However, it does not grant the real conveyances of the land to the adverse possessor[9].

LRA 2002 is quite different from LRA 1925, as it has imposed some adjustments to the act. For instance, if adverse possessor completed 12 years adverse possession before 12 Oct, 2003 then could be registered as proprietor of the land. This is unlike the LRA 1925 where pending registration, land is held on trust for the adverse possessor[10]. Ideally, in the case where the period of 12 years is not complete by 12 Oct 2003, then the adverse possession is governed entirely by the LRA 2002. The limitation period outlined in LRA 2002 does not automatically extinguish the registered proprietor’s title. The statutory criteria should be met in order to, successfully, make a claim of ownership by adverse possession in relation to registered land.

According to Garner adverse possession of land holdings enhanced early developments as it was perceived to enhance fairness and equity[11]. Indeed, an occupier who has contributed various resources—both in terms of raw materials and money—in developing the occupied land which will be excess of the value of the original land. This approach is not efficient, especially when applying it to the undeveloped land which has low value.  The rationale is only applicable to developed land holdings and those that have been established for a long period as they possess greater land value.

Consequently, adverse possession has proved to be futile as it posits difficulty when reversing contingent transaction and related issues in the case where sellers and buyers are able to purchase property from one another. In the ancient times, the transactions were conducted in a harmonious way. There was a possibility of delaying the litigation setting and process, as such, creating an enormous conveyance’s difficulty. This difficulty can be attributed to the lack of integrity and reliability from the previous transactions undertaken on land holdings[12].

Adverse possession statute also provides the principle of litigation of the obsolete titles, which are limited by time lapse and can be lost if not diligently and cherished during its pursuant. Ideally, such principles have been a common phenomenon in most of the law systems and are also recognized in the English doctrine. When the society accepts long continued administratively affairs prove convenient although it may be founded on a wrong dimension. Rationalizations that are based on ex post facto justifies that it is not essential to incorporate the issue as it will enhance confusion.

The period of adverse possession is insufficient to invoke the defense where adverse possession is recognized. Although acquisition of the title, which relies on the exact period of adverse possession can be expressed through property law imminent in jurisdiction, where the adverse occupier has insufficient period to enable him or her invoke the statute, one will still be able to enjoy the legal status of lawfully excluding those with a lesser right. As with the jurisdictions that do not permit acquisitions of the land title basing on the doctrine of adverse possession, the registered client, or owner can easily remove the adverse occupier from land ownership, due to the possession of indefeasible title.

In most of the jurisdictions that allow title acquisition by means of adverse possession, the essential period of limitation may be achieved through aggregation or accumulation of land withholding of various occupiers. Therefore, in the case where an adverse possessor has been dispossessed from occupying the property or land by another adverse possessor, the latter retains the rights of the former occupier. As such, they can introduce the initial period of adverse possession in their own means with the aim of overcoming the rights to ownership of the actual owner[13]. Ideally, it is significant that the two periods of occupation should always be frequent, continuous, and reliable or otherwise the true owner’s dispossession will ultimately stop. It is clear that even though an occupier would not have acquired an indefeasible registered title, the occupier nonetheless does not hold proprietary rights that are limited to the whole operation over the land holdings and property. The property rights available for actual occupiers can be easily transferred from one person to another.

Consequently, in the case where an adverse occupier has possessed the property for a long time that is sufficient to summon the period of limitation as a way of defending the claim. However, the adverse occupier need to take the vital steps that will enable the dispossession of the proprietor registered in the lands registry. As such, a registered deal culminating from an understanding between a third party and dispossessed proprietor will ultimately lead the defeat on the interest of occupier.

Finally, another issue surrounding the effectiveness of the doctrine is that adverse possession act is discriminative. However, the case of Parker v. British Airways Board (CA, 1982) proved vital in demarcating the rights and obligations that occupiers possess and the ownership of the property[14]. The case outlined that Parker had found bracelet that was valuable on the public floor. Parker gave the bracelet to the British airway’s employee and requested him to look for the owner of the bracelets whose initials were inscribed on the bracelet. However, the employee later sold it and used the proceeds. The court held that the British Airways was not responsible for damages as it did not give interest to possess the commodities of the finders. Ideally, Parker was only a passenger and not a trespasser[15]. Therefore, adverse possession was not used in coming up with the court’s decision.

 

Bibliography

Allred, Ken, ‘The Surveying profession’, Survey Law in Canada, ed. W B Blackie and C H Weir (Toronto: Carswell, 1999), pp. 471-502.

Baalman John, The Torrens system in New South Wales: being a commentary on the Real Property Act, 1900, as amended and as affected by various other statutes (Sydney: Law Book Co., 1982), p. 56.

Barnes, Thomas and Ditter, Stanfield, Land Registration modernization in developing economies: a discussion of the main problems in Central/Eastern Europe, Latin America, and the Caribbean’, URISA Journal, 12 (2000), 33–42 (p. 40).

Brown Greenwald, Law relating to Land Boundaries and Surveying Brisbane (Assn of Consulting Surveyors: Queensland, 1986), p. 277.

Callahan Clyde, Adverse Possession (Columbus: Ohio State University Press, 1961), p. 68.

Chambers Robert, An introduction to Property Law in Australia (Sydney: LBC Information Services, 2001), p. 56.

Dixon Burroughs, “Twelve years adverse possession — is it enough?” Aust Property Law Bulletin, 15(2000), 15– 20 (p. 18).

Duncan Bill, “Limitation period for adverse possession where true owner's identity unknown”, Queensland Lawyer, 20(2000), 201.

Garner Brian, A Dictionary of Modern Legal Usage, 2nd ed. (New York: Oxford University Press, 1995), p. 203.

Honore Maurice, ‘Ownership’, Oxford Essays in Jurisprudence, ed. by A G Guest (Oxford: Oxford University Press, 1961), pp. 107-147 (p. 132).

Hoogsteden, Calvert and Anthony van Zyl, ‘Public perception of Cadastral Boundary accuracy and costs: the unknown factor’, National Conference on Cadastral Reform '90, 4(1990), pp. 135-146 (p. 141).

Lamont Michèle, ‘Land registration systems’, Survey Law in Canada: a collection of essays on the laws governing the surveying of land in Canada, ed. by C H Weir and W V Blackie (Toronto: Carswell, 1989), pp. 63-106 (p. 95).

Larsson Gerhard, Land Registration and Cadastral Systems: tools for land information management (Essex: Addison-Wellesley Longman, 1991), p. 67.

Mulcahy Dominic, ‘Conversion of General Law land (Old system) to the Real Property Act (Torrens system) without cadastral survey’, 22nd Australian Survey Congress: Surveying and Law — technical papers (Hobart Institution of Surveyors: Canberra, 1980), p. 201

Munro-Faure Watson , ‘Infrastructure reforms: the role of markets and land valuation systems’, Technical Papers of the International Conference on Land Tenure and Cadastral Infrastructure for Sustainable Development, ed. IWilliamson, L Ting and S Majid (Essex: Addison-Wellesley Longman, 1999), p. 134-140.



[1] Hoogsteden, Calvert and Anthony van Zyl, ‘Public perception of Cadastral Boundary accuracy and costs: the unknown factor’, National Conference on Cadastral Reform '90, 4(1990), pp. 135-146 (p. 141).

[2] Larsson Gerhard, Land Registration and Cadastral Systems: tools for land information management (Essex: Addison-Wellesley Longman, 1991), p. 67.

 

[3] Barnes Thomas and Ditter Stanfield, Land Registration modernization in developing economies: a discussion of the main problems in Central/Eastern Europe, Latin America, and the Caribbean’, URISA Journal, 12 (2000), 33–42 (p. 40).

[4] Baalman John, The Torrens system in New South Wales: being a commentary on the Real Property Act, 1900, as amended and as affected by various other statutes (Sydney: Law Book Co., 1982), p. 56.

[5] Mulcahy Dominic, ‘Conversion of General Law land (Old system) to the Real Property Act (Torrens system) without cadastral survey’, 22nd Australian Survey Congress: Surveying and Law — technical papers (Hobart Institution of Surveyors: Canberra, 1980), p. 201

[6] Chambers Robert, An introduction to Property Law in Australia (Sydney: LBC Information Services, 2001), p. 56.

[7] Duncan Bill, “Limitation period for adverse possession where true owner's identity unknown”, Queensland Lawyer, 20(2000), 201.

[8] Munro-Faure Watson , ‘Infrastructure reforms: the role of markets and land valuation systems’, Technical Papers of the International Conference on Land Tenure and Cadastral Infrastructure for Sustainable Development, ed. IWilliamson, L Ting and S Majid (Essex: Addison-Wellesley Longman, 1999), p. 134-140.

 

[9] Honore Maurice, ‘Ownership’, Oxford Essays in Jurisprudence, ed. by A G Guest (Oxford: Oxford University Press, 1961), pp. 107-147 (p. 132).

[10] Dixon Burroughs, “Twelve years adverse possession — is it enough?” Aust Property Law Bulletin, 15(2000), 15– 20 (p. 18).

[11] Garner Brian, A Dictionary of Modern Legal Usage, 2nd ed. (New York: Oxford University Press, 1995), p. 203.

[12] Brown Greenwald, Law relating to Land Boundaries and Surveying Brisbane (Assn of Consulting Surveyors: Queensland, 1986), p. 277.

[13] Allred Ken, ‘The Surveying profession’, Survey Law in Canada, ed. W B Blackie and C H Weir (Toronto: Carswell, 1999), pp. 471-502

[14] Callahan Clyde, Adverse Possession (Columbus: Ohio State University Press, 1961), p. 68.

[15] Lamont Michèle, ‘Land registration systems’, Survey Law in Canada: a collection of essays on the laws governing the surveying of land in Canada, ed. by C H Weir and W V Blackie (Toronto: Carswell, 1989), pp. 63-106 (p. 95).

 

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