Title: Land Law “ The Law Commission, Parliament and the European Court of Human Rights are all averse to adverse ownership because none of them takes sufficient history of the important public involvements in its favor ” .
Critically discourse this statement.
Adverse ownership is known in popular idiom as “squatter’s rights” . The jurisprudence on inauspicious ownership concerns the procedure by which rubric to existent belongings owned by another party is acquired without the payment of compensation, by, as its name suggests, busying the belongings in a mode that conflicts with the true proprietor ‘s rights for a minimal specified period of clip. Mackenzie and Phillips define the construct as follows:
“the procedure of geting rubric to set down by dispossessing the old holder and busying the land until his right to retrieve it is time-barred.” [ 1 ]
As instances such asPowell v McFarland[ 1977 ] [ 2 ] andBuckingham County Council V Moran[ 1990 ] [ 3 ] confirm, inauspicious ownership requires the co-existence and cogent evidence of three elements in respects to the business of the belongings in question.. These elements are physical, mental and temporal. By and large talking, this means that any party seeking to claim the belongings occupy it entirely ( forestalling the business of others ) and openly to the universe at big merely as if it were their ain. Openly hostile ownership must be uninterrupted [ 4 ] in nature without the permission of or dispute from the legitimate proprietor, for a fixed statutory period in order to allow the acquisition of rubric. Adverse ownership has been governed by subdivision 15 of the Limitation Act 1980 [ 5 ] , since 1981. [ 6 ] Section 15 ( 1 ) of the 1980 Act the restriction period for the inauspicious ownership of land is 12 old ages.
The statement under treatment suggests that the Law Commission, Parliament and the European Court of Human Rights have indicated a negative temperament towards inauspicious ownership because none of those organic structures takes sufficient history of the important public involvements supported by the philosophy. This paper discusses the nature of inauspicious ownership against the background of recent tendencies in the jurisprudence, which throw the construct of squatter’s rights into critical crisp focal point.
Analysis of Adverse Possession
Prima facie, the construct of inauspicious ownership appears to travel against the grain of certain cardinal rules of English common jurisprudence, basic socio-economic policy and the conventional political paradigm which sustains our propertied democracy. In simple footings an adverse owner is nil more than a intruder, which is itself a civil wrong against the proprietor of the belongings, although harmonizing to ancient jurisprudence, if he or she can commit the civil wrong unchallenged for long plenty they may be rewarded by being allowed to get ownership of the belongings in inquiry without the cognition or consent of the rightful landholder. In about all other fortunes the jurisprudence has a word for belongings which is removed from its proprietor without consent and that word islarceny.
Possibly it comes every bit small surprise therefore that in recent times the historical anomalousness of inauspicious ownership has fallen under critical reappraisal. [ 7 ] In recent times Parliament has well improved the place of a registered landholder without really get rid ofing the philosophy of inauspicious ownership.
Drift for recent legislative reform came in portion from the Law Commission and its influential studyLand Registration for the Twenty-first Century: A Conveyancing Revolution( 2001 ) [ 8 ] . The study proposed new regulations for the inauspicious ownership of registered land which, it is submitted, efficaciously neutered the rights of homesteaders. Produced in response to the 2001 Law Commission study, the Land Registration Act 2002 [ 9 ] now stipulates that where land is registered, if an inauspicious owner wants to take an involvement in land he must use to be registered as proprietor after a minimal period of 10 old ages of inauspicious ownership. Significantly the Land Registry must so give notice to the true proprietor of this application. This process offers the landholder a period of clip 65 concern yearss to object to the inauspicious possession.. Once expostulation has been made the true proprietor will normally hold a farther two old ages in which to consequence the eviction of the inauspicious owner.
It is submitted that this legislative reform efficaciously drives a knife into the bosom of inauspicious ownership by forestalling the remotion of a land owner’s right to belongings without their anterior cognition. It could be argued nevertheless that this policy fails to give proper accent to the contended benefits of inauspicious ownership. In footings of a useful socio-economic analysis one could asseverate that given that land is a finite trade good it should be used in such a manner as to bring forth the maximal social benefit. If a landholder has ignored belongings for such a long period of clip, possibly it is contrary to societal justness to deny another party, who has committed himself to the land, its usage and enjoyment.
In the recent instances ofBeaulane Properties Limited V Palmer[ 2005 ] [ 10 ] the jurisprudence of inauspicious ownership received farther, and perchance fatal, organic structure blows.. The High Court ruled that the jurisprudence of inauspicious ownership in relation to registered land is non compatible with the Human Rights Act 1998 [ 11 ] and Article 1 of the First Protocol of the European Convention on Human Rights [ 12 ] , which provides for the right to peaceful enjoyment of ownerships. This determination is harmonic with another recent instance before the European Court of Human RightsJA Pye ( Oxford ) Land Ltd V United Kingdom[ 2005 ] [ 13 ] , it was held ( although merely by a 4:3 bulk ) that the philosophy of inauspicious ownership was so a misdemeanor of Article 1 of the First Protocol to the Convention. Furthermore, the Court of Human Rights found that it was disproportionate for the “true” proprietor both to lose his land and to have no compensation for it and that inauspicious ownership interfered with the just balance between the public involvement and the true owner’s right to the peaceable enjoyment of his ownerships. [ 14 ]
The determination was appealed by the UK Government to the Grand Chamber of the Court Europe’s highest tribunal, in November 2006. At the clip of authorship ( 24 February 2007 ) this opinion is still awaited. [ 15 ] It is submitted that the Grand Chamber is likely to back the opinion of the Court of Human Rights given that to make otherwise would ask jurisprudential gymnastic exercises around the cardinal right enshrined in Article 1 of the First Protocol to the Convention.
There is an old expression that “Possession is nine-tenths of the jurisprudence” and this was ne’er more true than in the context of the jurisprudence on inauspicious possession.. The most ancient rules of land jurisprudence based ownership on ownership called ‘seisin’ , with rubric awarded to the individual who could demo he had been seised of the land at the earliest day of the month. However, it is submitted that inauspicious ownership, while deducing certain theoretical societal benefits and consonant with basic dogmas of useful rule, is basically a relic of the past and incongruous in application in the modern context.
It is a banal observation that conceptual utilitarianism is sidelined in modern tribunals and legislative assemblies given that proliferation of difficult, autonomous jurisprudence. The polemic refering the jurisprudence on inauspicious ownership can be summarised as a struggle between medieval pragmatism supported by peripheral societal equity, and modern belongings involvements buttressed by progressive human rights. It is submitted that this is no competition. Adverse ownership will shortly be no more than a footer in legal history.
GLOBAL DOCUMENT WORD COUNT: 1326 ( excepting footers )
History, Council for Accredited Conveyancers, Edition 46, February 2007
European Convention of Human Rights:
hypertext transfer protocol: //www..echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais..pdf
European Court of Human Rights: hypertext transfer protocol: //www.echr.coe.int/ECHR/
Human Rights Act 1998: hypertext transfer protocol: //www.opsi.gov.uk/ACTS/acts1998/19980042.htm
Land Registration Act 2002: hypertext transfer protocol: //www.opsi.gov.uk/ACTS/acts2002/20020009.htm
Land Registration for the Twenty-first Century: A Conveyancing Revolution( 2001 ) Law Com No 271 ( published on 10 July 2001 )
Limitation Act 1980: hypertext transfer protocol: //www.lawcom.gov.uk/docs/cp151apa.pdf
Mackenzie J. , and Phillips M. ,A Practical Approach to Land Law, ( 2001 ) Blackstone Press Ltd
“Swat the homesteaders. Owners to be protected from place highjackers” ,Daily Mail, 2 September 1998
Cases as footnoted, verified against original jurisprudence studies.