Adverse Possession and The Housing Crisis

Durham Law Review
Volume VII
Part 1
February 2022
[2022] D.L.R
1 Durham Law Review [2022]
A Critical Analysis of the Current Status of the Doctrine

of Adverse Possession in light of the UK Housing Crisis
Rian Dhillon
Table of Contents
INTRODUCTION ................................................................................................................... 4
CHAPTER 1 .............................................................................................................................. 5
The Housing Crisis and Foundation for Reform.......................................................................... 6
Introduction ..................................................................................................................................................................... 6
Housing Crisis .......................................................................................................................... 6
Stewardship ............................................................................................................................ 11
Public Policy of Adverse Possession.......................................................................................... 14
Conclusions............................................................................................................................ 15
CHAPTER 2 ............................................................................................................................ 16
Analysing Adverse Possession .................................................................................................. 16
Introduction ................................................................................................................................................................... 16
The Past and Present Land Law................................................................................................................................. 17
The Consequences of the LRA 2002 ........................................................................................................................ 18
The Moral Agenda within the LRA 2002 ................................................................................................................. 22
Adverse Possession’s Clash with the Criminal Law ................................................................................................. 23
The Consequences of Section 144 LASPO 2012 ................................................................................................... 25
The Moral Agenda within Section 144 LASPO 2012 ............................................................................................ 26
Displacing the Moral Agendas .................................................................................................................................... 28
Conclusion ..................................................................................................................................................................... 32
CHAPTER 3 ............................................................................................................................ 33
Unveiling the Proposed Reforms .............................................................................................. 33
Direction of Reform ..................................................................................................................................................... 33
Liberalised Period of Adverse Possession ................................................................................................................ 34
Option to Purchase with Discretionary Approach................................................................................................... 36
Reinstating Section 7 CLA 1977................................................................................................................................. 38
Conclusion ..................................................................................................................................................................... 39
CONCLUSION....................................................................................................................... 40
BIBLIOGRAPHY ................................................................................................................... 41
Acknowledgements
I would like to thank both my friends and family for their continuous encouragement
throughout the writing of this dissertation.
INTRODUCTION
“H ousing has become the defining economic issue of our times”. 1 This is hardly a
controversial assertion: with 665,000 properties lying empty 2 and house prices seeing their
highest annual growth in over six-years despite the chaos of the COVID-19 pandemic,3 it
seems difficult to dispute the existence of the housing ills pervading the nation. Against this
backdrop there has been an erosion of adverse possession: the doctrine which enables a transfer
of title to property from the true owner to the squatter upon fulfilment of certain common law
and statutory conditions. This dissertation will examine the intersection between these two affairs.
Scholars in England and Wales tend to be reluctant to recognise the utility of adverse possession,
describing its existence as “increasingly strange” 4 in the context of registered land. Such a view
has been pioneered by the Land Registration Act 2002 (“LRA”) thereunder no amount of
adverse possession automatically strips an owner of his title, and bolstered by section 144 of the
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) which criminalises
trespassing in residential buildings. Yet, according with academic analyses in the US which
champion the doctrine’s use to counter vacant properties and community blight, 5 this dissertation
seeks to argue that adverse possession can be expanded to serve as one potential method to
soften the occurrence of under-utilised properties and absentee ownership.
Accordingly, Chapter I of this dissertation will contextualise the housing crisis and introduce the
foundation for reform. Firstly, it will set out land’s unique characteristics which make it inherently
precious and coveted. Secondly, it will frame the housing crisis within affordability and supply
issues to demonstrate that the crisis is rooted in the under-utilisation of the existing housing stock.
1
Danny Dorling, Peak Inequality: Britain’s Ticking Time Bomb (Policy Press 2018) 91
2
Ministry of Housing, Table 615: vacant dwellings by local authority distract: England, from 2004
(March 2021) <https://www.gov.uk/government/statistical-data-sets/live-tables-on-dwelling-stock-
including-vacants#history> accessed 21 April 2021
3
ONS, ‘UK House Price Index: December 2020’ (17 February 2021)
4
Kevin Gray and Susan Gray, Elements of Land Law (5 edn, OUP 2007) 127
th
5
Alaina De Biasi, ‘Squatting and adverse possession’ (2019) 23(1) City 66; Sally Richardson,
‘Abandonment and Adverse Possession’ (2015) 52 Houston Law Review 1385; Scott Shepard, ‘Adverse
Possession, Private-Zoning Waiver & Desuetude: Abandonment & Recapture of Property and Liberty
Interests’ (2011) 44 UMich Journal of Law Reform 557
It will then draw upon the model of stewardship to postulate that owners have an ethical
responsibility not to neglect their property and that adverse possession, as a doctrine animated
by land’s disuse, is one potential vehicle for legally promoting this responsibility.
Chapter II will set out adverse possession’s framework. It first demonstrates how the traditional
regime under the Limitation Act 1980 (“LA”) offers a potent mechanism for encouraging land
stewardship. It then analyses the reforms to adverse possession within the LRA 2002 alongside
its interaction with the criminal law under section 144 LASPO. This analysis will demonstrate
that both legislations endorse absentee ownership and inhibit land stewardship. Finally, it will
suggest that both legislations contain a moral agenda which it will subsequently displace in order
to reject the current laws and cultivate a case for reform.
Building on the analyses of the previous chapters, Chapter III will propose a more permissive
scheme to better promote effective stewardship. Whilst it is beyond this dissertation’s scope to
draft exact changes to the law, it will propose shortening the statutory period of adverse
possession, implementing an option to purchase and softening the associated criminal law. This
dissertation does not purport that squatting or adverse possession is the silver bullet to the
housing crisis. Rather, through the lens of the housing crisis, it endeavours to advocate a relaxed
approach to adverse possession as an alternative method for promoting the use of property to
serve societal housing needs.
Due to brevity, this dissertation will not examine adverse possession relating to leases, trusts or
easements. It will focus upon adverse possession (squatting-for-title) against registered
freeholders of residential premises. Regarding terminology, “adverse possessor” and “squatter”
will be used synonymously. Furthermore, “landowner”, “homeowner”, “registered proprietor”
and “paper-owner” equivalently refer to those holding title to land.
CHAPTER 1
The Housing Crisis and Foundation for Reform

Introduction
This chapter will first set out the characteristics of land which frame housing as an inherently
finite and desirable commodity. As the most salient features of the housing crisis, affordability
and supply issues will then be explored to provide the context for reform pertinent to the
forthcoming chapters and to suggest that the crisis stems from under-utilised properties. The
notion of stewardship will then be examined to provide a conceptual basis to postulate that
landownership encompasses duties. Finally, adverse possession will be introduced as one
possible mechanism for promoting these duties.
Housing Crisis
The housing crisis centres upon competing interests regarding how land is best used and
allocated. Some features of the crisis can be viewed through the lens of land’s unique
characteristics. Firstly, land has a fixed presence and location: “Land is not like a mat. You cannot
roll it up and take it away”. 6 Accordingly, property is easier to monitor, faces lower instances of
theft and has greater transactional security than chattels such as gold, therefore making it a safe
investment. Secondly, “there is a defined and limited supply” 7 of land. Unlike other commodities
such as oil, we cannot simply manufacture more land and we are limited to “sharing [the]
enjoyment of part of a small island on the north-west edge of Europe” 8 compounded by a
population which has grown year-on-year since 1982.9 Finally, the need for land is universal: we
all need somewhere to live whether as a tenant, licensee, owner-occupier or squatter. Thus,
housing is highly desirable but scarce.
A housing crisis is generally manifested in a growing number of people unable to access housing,
and there are two fundamental elements driving the UK’s crisis: worsening affordability and
limited supply. Accordingly, discussion will turn to these issues.
6
Tania Li, ‘What is land? Assembling a resource for global investment’ (2014) 39 Transactions of the
Institute of British Geographers 589, 589
7
Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 [107D] (Lord Browne-
Wilkinson)
8
Mark Davys, Land Law (11 edn, Red Globe Press 2019) 3
th
9
ONS, ‘Overview of the UK population: January 2021’ (14 January 2021)
Given the “conspicuous lack of a public-stated official definition” 10 of housing affordability, this
dissertation subscribes to Barker’s normative definition: the ratio of median house price to
median gross annual earnings. House prices have outpaced incomes: between 2002 and 2020,
the affordability ratio increased from 5.05 to 7.69.11 In real terms, this represents an average
house price increase from £104,000 to £243,000. 12 Moreover, whilst the pandemic devastated
the stock markets, the property market remained buoyant with house prices seeing their highest
growth since 2014, climbing 8.5% from December 2019 to December 2020, an increase of
£20,000.13 The resilience and magnitude of house price inflation thus means affordability issues
penetrate all income brackets as housing costs form the largest part of most households living
expenses.14 High-income households face increasing average deposit to income ratios and
mortgage payments, resulting in less discretionary spending. Meanwhile, middle-income
households are squeezed by housing costs which locks many out of homeownership.15
Low-income households are highly impacted; many are trapped in what Malpass accurately
describes as the “wobbly pillar” 16 of social housing, a residual sector facing severe cuts with 1.15
million households on the waiting list. 17 Social housing has gradually transitioned from social
10
Glen Bramley, ‘An Affordability Crisis in British Housing: Dimensions, Causes and Policy Impact’
(1994) 9 Housing Studies 103, 104
11
ONS, ‘House Price to Residence-based Earnings Ratio’ (25 March 2021)
12
Ibid
13
ONS, ‘UK House Price Index’ (n 3)
14
Donald Houston et al, ‘Gaps in the Housing Safety Net’ (University of St Andrews, 2014) 10
<https://assets.ctfassets.net/6sxvmndnpn0s/42ry4TxBaxZO5myvVnD0Yh/8b589e81c1d9b5993f449db8
ba041796/Final_report.pdf> accessed 20 March 2021
15
NHF, ‘Home Truths 2014/2015’ (2015) 6 <https://s3-eu-west-
1.amazonaws.com/pub.housing.org.uk/Home_Truths_2014_-_Broken_Market_Broken_Dreams.pdf>
accessed 14 February 2021
16
Peter Malpass, ‘The Wobbly Pillar? Housing and the British Post-war Welfare State’ (2003) 32(4)
Journal Soc Pol 589, 589
17
Ministry of Housing, Local authority housing statistics data returns for 2019 to 2020 (December 2020)
<https://www.gov.uk/government/statistical-data-sets/local-authority-housing-statistics-data-returns-for-
2019-to-2020> accessed 19 March 2021
rents (typically 50% of market rent) to affordable rents (typically 80% of market rent), 18 eroding
access to sub-market rent and low-cost homeownership for economically marginalized people.
As Robson notes, the current affordable rent model “fails to insulate people from the broken
housing market” 19 and the affordability criteria procures a variety of tenures identified as
“Affordable Housing” but which, in practice, are not genuinely affordable at all. Indeed, the
criteria neglect to account for factors other than housing costs, such as local incomes, local cost
of living and basic needs, resulting in affordable rents becoming out-of-reach of housing benefits.20
Moreover, those turning to the private sector often suffer at the hands of profit-oriented landlords
charging steep rents, with the median monthly rent reaching £725 in 2020, the highest ever
recorded.21
Yet, resolving affordability issues involves a complex balancing exercise. The UK’s economic
growth is precariously reliant upon the pillar of soaring land prices; land accounts for 51% of the
UK’s net worth.22 Lawmakers face difficult choices between the homeowning electorate’s
reasonable expectation to benefit from their assets and low-income citizens’ need for more
affordable housing. Nevertheless, when housing affordability is described as the “fastest growing
and most pervasive housing challenge” 23 denying homeownership to many, this necessarily calls
the effectiveness of current legislation into question. In addition, as will be seen, the lack of
affordable housing and competition for residential space is compounded by an abundance of
under-utilised properties.
A dominant narrative predicated upon economic logic is that building more houses will solve all
manifestations of the housing crisis. An estimated 345,000 houses must be built per year to fill
the backlogged housing need; however, output has not kept pace, lagging at just 244,000 in
18
Jenny Preece et al, ‘The affordability of “affordable” housing in England: conditionality and exclusion
in a context of welfare reform’ (2019) 35(7) Housing Studies 1214, 1218
19
Brian Robson, ‘Using the Social Housing Green Paper to Boost the Supply of Low-cost Rented
Homes’ (Joseph Rowntree Foundation , 2018) <https://www.jrf.org.uk/report/using-social-housing-green-
paper-boost-supply-low-cost-rented-homes> accessed 14 February 2021
20
Preece et al (n 18) 1219
21
ONS, ‘Private rental market summary statistics in England: October 2019 to September 2020’ (11
December 2020)
22
ONS, ‘The UK national balance sheet estimates: 2018’ (29 August 2018)
23
Preece et al (n 18) 1214
2019/20.24 Some experts have acknowledged this shortfall and concluded that a higher-rate of
housebuilding alone could automatically alleviate housing prices. 25 Yet, such a view fails to
account for factors such as locational needs and the “unbounded” investment demand from
domestic and international investors purchasing properties for capital growth, meaning that
supply can never “meet” demand.26 Indeed, May notes that new housing composes only a “tiny
proportion” 27 of the housing stock and has negligible effects on the overall market. Gallent et al.
and Bowie go further, denigrating the housebuilding argument as a “supply-side fetish” 28 and a
“fallacy”.29 As emphasised in scholarship, the crisis is substantially grounded in how the current
housing stock is (un)occupied rather than a lack of housing.30 Accordingly, discussion will turn to
issues within the existing housing stock.
Empty properties are recognised by Parliament as curtailing the meeting of housing needs and
blighting local communities, 31 acting as “an anchor on the ultimate progress of society”. 32 After a
24
Wendy Wilson and Cassie Barton, ‘Tackling the under-supply of housing in England (Briefing Paper,
January 2021) 3 <https://commonslibrary.parliament.uk/research-briefings/cbp-
7671/#:~:text=Estimates%20have%20put%20the%20number,increased%20by%20around%20244%2C0
00%20homes> accessed 31 March 2021
25
Kate Barker, ‘Review of Housing Supply, Delivering Stability: Securing our Future Housing Needs’
(2004)
26
Neil May, ‘Building more houses cannot solve the housing crisis’ ( UCL Re-thinking Housing, 2016)
<https://www.ucl.ac.uk/grand-challenges/sustainable-cities/our-work/re-thinking-housing/building-more-
houses-cannot-solve-housing-crisis> accessed 31 March 2021
27
Ibid
28
Nick Gallent et al, ‘Housing supply, investment demand and money creation: A comment on the
drivers of London’s housing crisis’ (2017) 54 Urban Studies 2205, 2207
29
Duncan Bowie, Radical Solutions to the Housing Supply Crisis (1 edn, Policy Press 2017) 41
st
30
Danny Dorling, All that is Solid: The Great Housing Disaster (Allen Lane 2014) 139; Daniel
Valentine, Solving the UK Housing Crisis: An analysis of the investment demand behind the UK’s
housing affordability crisis (Bow Group 2015) 5
31
Cassie Barton et al, ‘Empty housing’ (Briefing Paper, October 2020) 5
<https://commonslibrary.parliament.uk/research-
briefings/sn03012/#:~:text=Statistics%20published%20by%20the%20Ministry,on%20the%20previous%2
0year's%20total> accessed 6 January 2021
32
Brian Gardiner, ‘Squatters’ Rights and Adverse Possession: A Search for Equitable Application of
Property Laws’ (1997) 8(1) Indiana International & Comparative Law Review 119, 156
fourth consecutive year-on-year rise, there are over 665,000 empty houses in England alone.
268,000 have been empty for longer than six-months (“long-term empty”) which is a surge of
19% on the previous year, or 42,000 in real terms, marking the biggest increase since records
began.33 The issue is acute in high-demand urban areas such as inner and outer-London which
saw pronounced annual rises in long-term empty properties of 27% and 21%, whilst Manchester’s
increased by 19%.34 Yet, these figures may mask the extent of the problem, for example, they do
not encompass derelict properties and some owners may not inform the local authority that their
property is empty.
While properties can be left empty for complex reasons such as the recent death of the
proprietor, it is suggested that two notable causes are driven by housing financialisation. 35 Firstly,
“dead residential space” 36 created by international investors flocking to the UK property market
as a “safe-haven” 37 to park surplus capital. Many of these investors are intent on leaving their
properties unoccupied to avoid the additional costs of acting as landlords and to allow for a quick
sale to reap the appreciation in asset value when lucrative market conditions arise. 38 While
quantitative evidence of foreign “buy-to-leave” properties is limited, Savills estimates two-thirds
of foreign buyers are investors and research shows that foreign-owned properties are less likely
to be occupied.39 A second cause is suggested to stem from “low-use” 40 properties garnered by
the boom in additional property ownership within the UK population. Generous tax reliefs, low
interest rates and the attractiveness of capital gains have culminated in 5.5 million UK families
33
Ministry of Housing (n 2)
34
Ibid
35
While the financialisation of housing is an important element of the housing crisis, an in-depth
discussion is beyond this dissertation’s scope.
36
Rowland Atkinson, ‘Necrotecture: Lifeless Dwellings and London’s Super-Rich’ (2018) 43(1)
International Journal of Urban and Regional Research 2, 6
37
Valentine (n 30) 4
38
Ibid 35
39
Atkinson (n 36); Valentine (n 30); Jonathan Bourne, ‘Empty Homes: mapping the extent and value of
low-use domestic property in England and Wales’ (2019) 5 Palgrave Communications 2
<https://doi.org/10.1057/s41599-019-0216-y> accessed 1 April 2021
40
Bourne (n 39)
owning additional properties compared to just 3.6 million in 2001. 41 Thus, although housing is
available, much is held by “ absent owners” 42 and therefore detached from the stock used for
residential purposes. According with parliamentary suggestions that under-utilised housing
resources are vital for filling the backlogged housing need, 43 this dissertation will propose an
approach which seeks to promote effective and meaningful use of existing housing.
Stewardship
To promote the use of property to serve housing needs, it is suggested that absentee ownership
should be discouraged. It thus follows that a greater emphasis might be placed on preventing
owners from leaving their properties unused. However, it is unclear how and why such a
restriction should exist when many would contend that an owner should be presumed to know
the “most appropriate” use of his property and that this could entail “leaving it idle until the best
use becomes clear”,44 irrespective of whether some members of society might disagree with his
(lack of) use. Shepard provides a compelling answer, suggesting that an owner’s obligation not to
neglect his land derives from land’s limited and scarce nature.45 This is embedded in scholarship
as a moral norm of “effective stewardship”. 46 It is argued that such a duty behoves a landowner
to manage his land fairly in the interests of the “wider human community” 47 and to prevent it
from becoming wasted, for example, by “repairing”, “sharing” and “caring” for it. 48 Thus,
stewardship eschews the concept of absolute property rights, and proposes that such rights are
qualified by community-orientated responsibilities.
41
George Bangham, ‘Game of Homes: The rise of multiple property in Great Britain’ ( Resolution
Foundation, 2019) 6 <https://www.resolutionfoundation.org/app/uploads/2019/06/Game-of-
Homes.pdf> accessed 17 March 2021
42
Atkinson (n 36) 4
43
HC Deb, 29 November 2011, cols 911-916
44
Jeffrey Stake, ‘The Uneasy Case for Adverse Possession’ (2001) 89 Georgetown LJ 2419, 2436
45
Shepard (n 5) 568
46
Neil Cobb and Lorna Fox, ‘Living Outside the System? The (Im)morality of Urban Squatting After
the Land Registration Act 2002’ (2007) 27 LS 236, 254
47
William Lucy and Catherine Mitchell, ‘Replacing Private Property: The Case for Stewardship’ (1996)
55 CLJ 566, 583
48
Albert Fritsch, Environmental Ethics: Choices for Concerned Citizens (Doubleday 1980) 248
Such views emphasising an owner’s “responsibility not to waste” 49 are considered by rights
theorists. While Locke vehemently defends individual property rights, Locke’s spoilage proviso
posits that an owner’s disuse of land cannot morally justify his retention of it as “nothing was
made by God for man to spoil or destroy”.50 Thus, although Locke’s proviso does not constrain
the quantity of property holdings, it does posit that an owner’s claim over property can be
forfeited when the holding becomes unused or spoilt; “anything beyond this, is more than his
share, and belongs to others ”.51 Endorsing this normative interpretation, Claeys asserts that
“claim-rights” arise “to wrest the resources from [an owner] before they go to waste”,52 similarly
suggesting that disuse of land may justify forfeiture of property rights.
Albeit through an environmental lens, Karp’s perspective on stewardship echoes this non-waste
limitation. For Karp, it is land’s unique characteristics as “finite” and “essential for survival” 53
which beg the conclusion that landowners’ rights “should be limited by a duty of land
stewardship”.54 Karp further contends there to be “no justifiable reason for protecting the power
of a landowner to waste and to destroy” 55 his land. Merging these propositions, an intuitive
argument follows that, given the shortfall in affordable housing and the importance of housing
for survival, the wider community-interest calls for effective property management. An absentee
owner leaving his property unused is wasting it and has neglected his community-orientated duty
of effective land use; thus, the law should not protect him from his shortcomings. Yet, Karp did
not suggest how this duty might be enforced; accordingly, discussion will turn to its
implementation.
49
Eric Claeys, ‘Locke Unlocked: Productive Use in Encroachment, Adverse Possession and Labor
Theory’ (2013) 12-21 George Mason University Law and Economics 13
50
John Locke, Second Treatise of Government (1690) V.31
51
Ibid
52
Claeys (n 49) 25
53
James Karp, ‘A Private Property Duty of Stewardship: Changing our Land Ethic’ (1993) 23
Environmental Law 735, 739, 745
54
Ibid 748
55
Ibid 750
Stewardship is not foreign to English property law and an owner’s lack of care for land has had
repercussions in modern cases, 56 with some commentators going as far to suggest that the
stewardship model of landownership has replaced the liberal model. 57 The ethical duty of
stewardship is arguably implemented by the legal doctrine of adverse possession which, in certain
circumstances, can forfeit an owner’s title for non-use of land. Indeed, Cobb and Fox draw upon
stewardship to justify the existence of adverse possession, contending that landownership entails
“a fundamental obligation to engage in an appropriate degree of supervision” 58 over land. It is
further observed that stewardship “carried some weight” 59 in pre-LRA 2002 judicial voices on
adverse possession. For example, in Purbrick v Hackney LBC , Neuberger J drew specific
attention to the landowner’s maladministration, asserting that landowners should be “expected
to keep an eye on the property to ensure adverse possession rights are not being clocked up”. 60
Similarly, in Pye v United Kingdom, a trinity of dissenting judges within the Grand Chamber
contended that landownership carries not only rights but “also and always some duties[…]to
behove a landowner to be vigilant”,61 positing that the fault fell on the applicant in failing to take
minimal steps to monitor the property.
The vociferous support by senior judicial authority thus provides greater saliency and gravitas to
the argument that landownership encompasses a stewardship duty and affirms the casting of
adverse possession as the legal framework for promoting this ethical duty. Mapping this onto the
present discussion, stewardship functions as a direct addressal of the pervading societal issues in
accessing and sharing the vital resource of housing. It seeks to prevent land from being neglected
by encouraging each member of society to use “no more of the available resources than
56
See Mancetter Developments v Garmanson and Givertz [1985] EWCA Civ 2 where a landlord’s
removal of fixtures from a property and failure to replace them constituted waste.
57
Una Woods, ‘Adverse Possession – Does the owner get his just deserts?’ (Centre for Housing Law,
Rights and Policy International Conference, Galway, 2012)
<https://ulir.ul.ie/bitstream/handle/10344/4305/Woods_2012_Owner.pdf?sequence=2> accessed 20
March 2021; Gray (n 4) 55-56
58
Cobb and Fox (n 46) 254
59
Lorna Fox O’Mahony and Neil Cobb, ‘Taxonomies of Squatting: Unlawful Occupation in a New
Legal Order’ (2008) 71(6) MLR 878, 890
60
[2003] EWHC 1871 [25] (Neuberger J)
61
[2006] 43 EHRR 3 [2]
needed”.62 Accordingly, with an introduction to adverse possession as a mechanism for

promoting stewardship, discussion will turn to some of its justifications.
Public Policy of Adverse Possession

A range of justifications for adverse possession have been raised, this sub-section will examine
two classic rationales. The first relates to absentee ownership and is reflected in the sleeping
theory which posits that those who “sleep upon their claims should not be assisted by the courts” 63
in order to deter owners from ignoring their land and to recognise that the squatter may have
occupied and improved the land and should therefore be entitled to benefit from it. Fennell
draws-upon this justification to argue that adverse possession is “uniquely well suited” for
facilitating “efficient transfers” of scarce resources “when the divergence between the valuations
of the possessor and the record owner is great”. 64 Fennell frames the successful claimant as the
“ higher-valuing user” for his long-term use of the property combined with his personal risk of
getting caught occupying it. Conversely, the imprudent owner is classed as a “ lower-valuing user”
for failing to enforce his rights against the adverse possessor. 65 It is argued, therefore, that an
owner who neglects to enforce his rights cannot complain if, after a lengthy period, the law
“follows his example”.66
A second rationale which the Law Commission describes as carrying “greater weight” 67 pertains
to housing shortages. It is argued that, as land is precious, there are strong utilitarian and socio-
economic arguments that it should remain unlocked and marketable. As scholars note, while
absentee landowners leave their land dormant, it would presumably remain unsold and removed
62
Fritsch (n 48) 248
63
R.B. Policies at Lloyd’s v Butler [1950] 1 KB 76 [81] (Streatfield J)
64
Lee Fennell, ‘Efficient Trespass: The Case for ‘Bad Faith’ Adverse Possession’ (2006) 100
Northwestern University Law Review 1037, 1059, 1095, 1073
65
Ibid 1075
66
Oliver Holmes, ‘The Path of the Law’ (1897) 10 HLR 457, 477
67
Law Commission, Land Registration for The Twenty-First Century: A Conveyancing Revolution (Law
Com No 271 2001) para 2.72
from general circulation.68 However, following a successful adverse possession claim, the land
would be freed from its dormancy by the squatter and “freely alienable” 69 thereafter; thus, adverse
possession serves as a tool of market-efficiency. Given the difficulties faced by governments in
sponsoring initiatives to increase the housing stock, ensuring existing properties are kept in
commerce is a “top priority” 70 to soften the pressures on housebuilding and the property market.
An emerging literature has considered adverse possession in the context of modern-day

challenges such as countering vacant property, 71 revitalizing local communities, 72 and economic
efficiency.73 These viewpoints build upon the aforementioned justifications to rationalise the
adverse possessor acquiring title to land which was otherwise foreclosed. Thus, as Burns notes,
although the doctrine was drafted to quieten stale claims, its practicalities have arguably
developed beyond this “standard rationale”. 74 Yet, although utilising adverse possession to
alleviate issues of empty properties has been acknowledged as “very attractive from a theoretical
policy perspective”, 75 as will be demonstrated, recent reforms fetter the doctrine’s potential to do
so.
Conclusions
This chapter has argued that the housing crisis can be softened by maximising use of existing
housing to serve societal housing needs. As a method of ensuring this, it has drawn upon the
conceptual basis of stewardship to propose that ownership encompasses a community-orientated
68
Stevie Swanson, ‘Sitting on your Rights: Why the Statute of Limitations for Adverse Possession
Should Not Protect Couch Potato Future Interest Holders’ (2011) 12(2) Florida Coastal Law Review
305, 315
69
Ibid
70
Wendy Wilson, ‘Briefing on: Evicting Squatters’ (Briefing Paper, June 2017) 15
<https://commonslibrary.parliament.uk/research-briefings/sn00355/> accessed 11 April 2021
71
Richardson (n 5); Shepard (n 5); Gardiner (n 32)
72
De Biasi (n 5)
73
Jeffry Netter et al, ‘An Economic Analysis of Adverse Possession Statutes’ (1986) 6 International
Review of Law and Economics 217
74
Fiona Burns, ‘Adverse Possession and Title-by-Registration Systems in Australia and England (2011)
35(3) Melbourne University Law Review 773, 809
75
Kristine Cherek, ‘From Trespasser to Homeowner: The Case Against Adverse Possession in the Post-
Crash World’ (2012) 20(2) Virginia Journal Soc Pol & Law 271, 306
duty of effective land use. It has suggested that neglecting property breaches this duty and has
proposed adverse possession as one potential method of promoting this duty. Accordingly, a
closer analysis of adverse possession must be taken.
CHAPTER 2
Analysing Adverse Possession
Introduction
This chapter will set out the development of adverse possession and demonstrate why the current
formulation should no longer be supported. It will first examine the old regime under the LA
1980, demonstrating its potency to promote stewardship. Secondly, the LRA 2002 reforms will
be evaluated alongside criminal law developments under section 144 LASPO. It will be argued
that these legislations staunch land stewardship and endorse absentee ownership. Finally, it will
be suggested that the rationale behind both legislations contains a moral agenda which does not
stand up to scrutiny. Thus, this chapter will lay the foundation for the proposed new approach
in Chapter III.
The Past and Present Land Law
In order to appreciate why adverse possession is well-suited to promoting stewardship, an

understanding of the doctrine’s mechanics is essential.
A synthesis of common law and statute provide the substantive elements of adverse possession.
Claimants must show dispossession or discontinuance of possession of the paper-owner,76 factual
possession with intention to possess, 77 possession adverse to the paper-owner,78 and continuous
possession for the statutory period. 79 Before the revolution of land registration, title was based on
long-term possession; thus, squatters could acquire title by the plain of time known as de facto
possession. Accordingly, under the old regime governed by the LA 1980, a claimant simply
requires 12-years adverse possession80 following which the original owner’s title is extinguished
by the limitation of actions and the claimant acquires an independent possessory title in fee
simple to the land enforceable against all the world. 81 The claimant is granted a new estate subject
to all incumbrances,82 and the original owner is statute-barred from asserting title against the
successful claimant. This potent regime frames adverse possession as an effective mechanism for
discouraging land-neglect as, if a landowner ignores his land such that the squatter accumulates
76
Buckinghamshire County Council v Moran [1990] Ch 623 (CA)
77
Pye v Graham [2003] 1 AC 419 [40]
78
Powell v McFarlane [1977] 38 P&CR 452
79
LA 1980, ss15(1); LRA 2002, Sch 6 para 1(1)
80
LA 1980, ss15(1)
81
Ibid s17
82
Re Nisbet and Potts Contract [1906] 1 Ch 386
12-years adverse possession, his title will be extinguished. 83 Yet, this regime bears less significance
in the modern-day; it is limited to claims of adverse possession over unregistered land which the
Land Registry reveals amounts to just 13% of land.
The LRA 2002 governs the new regime and applies to all adverse possession claims over
registered land after October 2003. The substantive elements of a claim remain unchanged;
however, a significant procedural change occurs after 10-years adverse possession whereby, to
acquire title, the claimant must submit an application to the Land Registry. Upon receipt, the
registrar serves notice of the application to the proprietor and parties with interests in the land 84
whom may consent, object85 or counter-notice86 within 65-days.87 Following objection, applications
are generally rejected, although if the objection is groundless, the claimant is registered as the
new owner.88 Where counter-notice is served, the application will fail unless satisfying an
exception in paragraph 5 of Schedule 6: estoppel, reasonable mistaken boundary, or “some other
right” to the land. Following a failed application, the proprietor has two-years to recover
possession. If the proprietor fails to do so, the adverse possessor can reapply and is entitled to
be registered as the new proprietor if he continued adversely possessing during those two-years.89
Upon successful application, there is a statutory transfer of the registered proprietor’s estate to
the adverse possessor subject to all interests affecting the land. 90 Thus, the fact of the claimant’s
registration rather than de facto possession is the basis of his title.
The Consequences of the LRA 2002
Although the overall thrust of the LRA 2002 is welcomed in the new age of title-by-registration,
the practical consequence is a “ much watered-down” 91 framework of adverse possession.
83
Purbrick (n60)
84
LRA 2002, Sch 6 para 2(1)
85
Ibid ss73(1)
86
Ibid Sch 6 para 5
87
Land Registration Rules 2003, r.189
88
LRA 2002, ss73(5)
89
Ibid Sch 6 para 6-7
90
Ibid Sch 6 para 9
91
Roger Smith, ‘The Role of Registration in Modern Land Law’ in Louis Tee (ed), Land Law: Issues,
Debates, Policy (Willan 2002) 55
It is argued that, in their reforms, the Law Commission (“the Commission”) sought to prevent
squatters acquiring title even where landowners failed to engage in adequate supervision. 92 There
is strength in this argument given the reforms divest landowners’ surveillance responsibilities,
replacing them with a paternalistic notice mechanism. This has resulted from section 96 of the
LRA 2002 which disapplies section 15 and 17 of the LA 1980 meaning that no fixed period of
adverse possession extinguishes the registered proprietor’s title. Rather, after 10-years adverse
possession, the onus now lies on the claimant to submit an application to obtain title.
Contrastingly, the landowner can “ sit back and wait” 93 for the registrar’s notice. The landowner
then has 65-days to “ veto” 94 the application by serving a counter-notice and is given an additional
two-year grace period to repossess his land, following which he can “ sink back into slumber ”.95
Only in unusual cases when the paper-owner fails to take action during the two-year grace period
can the squatter re-apply. Accordingly, squatters’ claims are generally thwarted by the notice
mechanism before even posing a tangible threat to the landowner’s title.96 Whilst the Commission
sought a “ fairer balance between landowners and squatters where title is registered”, 97 the impact
of this notice mechanism has heavily weighted the regime in the registered proprietor’s favour,
creating a “virtually squatter-proof ” 98 framework.
Indicative evidence of this disbalance is reflected in adverse possession applications having

“slowed to a thin trickle”.99 There has been a steady fall in applications following implementation
of the LRA 2002, decreasing from 1,111 in 2008/09 to 868 in 2010/11 100 and from 749 in 2014/15
to 598 in 2015/16.101 This suggests that the new regime has discouraged adverse possessors from
bringing their claims forward. Indeed, a questionnaire sent to conveyancing solicitors found 67%
92
93
Martin Dixon, Modern Land Law (10 edn, Routledge 2018) 481
th
94
95
Dixon, Modern Land Law (n 93) 481
96
97
Law Commission, Land Registration for the Twenty-First Century: A Consultative Document (Law
Com No 254 1998) para 10.19
98
Elizabeth Cooke, The New Law of Land Registration (1 edn, Hart 2003) 7
st
99
100
HC Deb, 12 September 2011, col 1032W
101
Law Commission, Updating the Land Registration Act 2002 (Law Com No 227 2016) para 17.7
had advised clients in adverse possession against applying for registration owing to the risks
concomitant with alerting the registered proprietor. 102 Thus, as scholars observe, it has become
more attractive for adverse possessors to “stay quiet” 103 in “undiscovered occupation” 104 outside of
the registered framework. Given the rigidity of property law, such disengagement with the LRA
2002 possesses a “communicative power” 105 that its current workings have fallen out of line with
the community it serves. Indeed, these off-register dealings undermine the legal framework which
the LRA 2002 has provided for squatters to acquire title, thus calling its effectiveness into
question.
However, it is worth acknowledging that the landowner’s veto can be evaded in three
circumstances in which the Commission emphasises that the Registry “ must approve the
squatter’s application”.106 Firstly, when it would be “unconscionable” 107 because of an equity of
estoppel not to register the applicant; this has provided an equitable defence in recent cases but
does not necessarily mean the claimant will be awarded title to the land. 108 Secondly, if he is “for
some other reason” 109 entitled to the land; this applies in narrow cases of wills and intestacy which
the Land Registry affirm is “rarely successfully used”. 110 Finally, in the case of boundary mistakes,
if he has adversely possessed the disputed land for 10-years.
Although the Commission describes the final boundary exception as “the only significant one”, 111
in practice, it can be difficult to fulfil. Indeed, paragraph 5(4) of Schedule 6 imposes additional
burdens for the squatter to prove. Firstly, the disputed land must be adjacent to the land
belonging to the applicant. Secondly, the boundary must not have been determined under the
rules within section 60. Thirdly, the disputed land must have been registered for more than one-
102
Mark Pawlowski and James Brown, ‘Adverse Possession and the Transmissibility of Possessory Rights
– The Dark Side of Land Registration?’ (2017) 81 Conv 116, 127
103
Ibid
104
105
Eduardo Penalver and Sonia Katyal, ‘Property Outlaws’ (2007) 155 UPenn Law Review 1095, 1137
106
Law Com No 271 (n 67) para 14.36
107
LRA 2002, Sch 6 para 5(2)(a)
108
Davies v Davies [2016] EWCA Civ 463
109
110
Law Com No 227 (n 101) para 17.30
111
year prior to the application. Finally, the squatter must have reasonably believed the land
belonged to him for at least 10-years of the period of adverse possession. This final requirement
has recently been made more stringent. Previously, in Crosdil v Hodder , the tribunal had held
that any 10-year period of reasonable belief would be adequate. 112 However, the Government
have since accepted the Commission’s proposal that an applicant must apply within 12-months
of when the reasonable belief that the land belonged to him came to an end. 113 This shoring up
of landowners’ protections from the paragraph 5 exceptions has been bolstered by the recent
barring of adverse possessors making further applications when their application under
paragraph 5 of Schedule 6 has been rejected. 114
Thus, it is difficult to argue that the paragraph 5 exceptions provide an adequate balance to the
landowner’s veto when they are largely confined to narrow circumstances. The Commission and
the courts affirm that they are “exceptional grounds” 115 which are “very limited in extent”. 116
Accordingly, Dixon’s contention that the LRA 2002 has granted landowners the “closest thing in
over 900 years to absolute ownership” 117 has some force. While the reforms are consistent with
the policy of title-by-registration, the notice mechanism goes above and beyond this policy
objective and inhibits landowners’ notional duty of stewardship and endorses absentee
ownership. Indeed, as Dixon suggests, the reforms represent an additional policy perspective of
adverse possession as “land-theft” 118 which is illustrated by a moral agenda emphasising the
blamelessness of the absent landowner.
112
[2011] EWLandRA 2009_1177
113
Department for Business, Energy & Industrial Strategy, Law Commission Review of the Land
Registration Act 2002: Government Full Response (March 2021) para 40
<https://www.gov.uk/government/publications/land-registration-act-2002-government-response-to-the-
law-commission-review/law-commission-review-of-the-land-registration-act-2002-government-full-
response> accessed 13 April 2021
114
Ibid para 39
115
116
Baxter v Mannion [2010] EWHC 573 (Ch) [7] (Henderson J)
117
118
Martin Dixon, ‘The reform of property law and the Land Registration Act 2002: A risk assessment’
(2003) Conv 136, 151-2
The Moral Agenda within the LRA 2002
The Law Commission’s consultation documents are noted as having a “powerful impact” 119 on
the aforementioned reforms, and the LRA 2002 has enacted many of the proposals contained
within them. Accordingly, these documents will provide the forum for the present discussion.
It must first be acknowledged that the LRA 2002 revolutionised land law, borne out of the
recognition that the preceding LRA 1925 manifested numerous “deficiencies and limitations” 120
rendering it unsuitable for the socio-economic circumstances of the twenty-first century. Notably,
the old title deeds conveyancing system relied upon the “wearisome and intricate task” 121 of
searching through bundles of deeds to validate the identity of the paper-owner. The 2002 Act
has modernised conveyancing by creating a state-backed transparent register of interests which
enhances the accuracy of the state of land titles and eliminates the expensive inquiries of title
deeds conveyancing.
The reforms to adverse possession under the LRA 2002 have generally been accepted as
“adjusting property law concepts to fit title-by-registration” 122 as acquisition of title by adverse
possession was viewed as undermining the register. However, as was demonstrated, the new
regime has seemingly procured the opposite effect by discouraging adverse possessors from
engaging with the new title-by-registration framework. Moreover, it is suggested that the old
regime was regarded as a “ stable” and “ justifiable” 123 feature of property law which struck a “fair
balance” 124 between squatters and landowners rights. It is further argued that the reforms seemed
an unnecessary “bolt-on to the reform of registered land”. 125 The Commission had also previously
acknowledged that “any substantive reform [to adverse possession] should be undertaken
119
Fox O’Mahony and Cobb (n 59) 892
120
Barbara Bogusz, ‘Bringing Land Registration into the Twenty-First Century – The Land Registration
Act 2002’ (2008) 65 MLR 556, 556
121
Williams & Glyn’s Bank v Boland [1981] AC 487 [511] (Lord Scarman)
122
Burns (n 74) 807
123
124
Brice Dickson, ‘Safe in their hands? Britain’s Law Lords and Human Rights’ (2006) 26(3) LS 329,
340
125
Martin Dixon, ‘Adverse Possession and Human Rights’ (2005) Conv 345, 351
separately and ought not to be conditioned purely by registered conveyancing considerations”. 126
Thus, alongside the Commission’s uncontroversial aim of entrenching title-by-registration, it is
suggested that the reforms were driven by a “contentious moral agenda”. 127
In the consultation documents, the Commission frame advertent squatters and absent
landowners as binary opposites. The former is described as an invader “with an eye to the main
chance who encroaches on his or her neighbour’s land”. 128 Conversely, the latter is deemed
“ blameless”,129 morally irreproachable and needing the Land Registry’s protection from the
hardships of an “extremely harsh” 130 law. The Commission absolves the imprudent landowner of
blame, contending that he succumbs to an adverse possession claim “because the adverse
possession is either clandestine or not readily apparent” or as an inevitable consequence of
having more land than he can “realistically police”. 131
The Commission further disregards the notion that squatters and landowners are a diverse
population and cannot be pigeonholed into archetypal models. For example, what might be
perceived as a “distasteful” 132 appropriation of land may result from the landowner not wanting
to keep the land as he may no longer have use for it. As a consequence, the Commission
forecloses the socio-economic arguments in defence of squatting, such as countering the
abundance of empty properties and lack of affordable housing. Scholars have described the
Commission’s view as “simplistic” and exhibiting “moral essentialism”; 133 indeed, as will be seen,
this simplistic view of squatters and landowners does not stand up to closer scrutiny. However,
before conducting a closer analysis, an examination of the criminal law’s interaction with adverse
possession is essential.
Adverse Possession’s Clash with the Criminal Law
126
Law Commission, Third Report on Land Registration (Law Com No 158 1987) para 2.36
127
128
129
130
131
Ibid
132
133
Following the erosion of squatting laws under the LRA 2002, the scene was set for changes to the
criminal law to be made. Prior to section 144 LASPO, the most important criminal offences
which an adverse possessor could commit were those under section 7 of the Criminal Law Act
1977 (“CLA”). Section 7(1) makes it a criminal offence for a person who is on any premises as
a trespasser to refuse to leave when asked by a displaced residential occupier (“DRO”) or
protected intending occupier (“PIO”). Section 144(1) LASPO buttresses this by criminalising the
unlawful occupation of residential buildings, creating an offence where someone living or
intending to live in the building entered as a trespasser and should have known they were
trespassing. Crucially, it extends the criminal law to all residential properties , including empty
properties, and not just those currently or soon to be occupied. The repercussions are also
severe; a conviction can lead to up to 51-weeks imprisonment and a £5000 fine. 134
The advent of section 144 engendered great speculation regarding the interaction of adverse
possession with the criminal law as never before had they been so “ explicitly linked”.135 Section
144 paradoxically criminalises trespassing residential buildings despite adverse possession
requiring an initial trespass to fulfil the crucial “adverse” element, 136 thereby clashing with the
maxim ex turpi causa, that a claim cannot succeed if arising from an illegal act. The Court
attempted to clarify the relationship between section 144 and adverse possession in Best v Chief
Land Registrar 137 in which the squatter applied to be the registered proprietor of a property upon
fulfilment of the statutory period. The initial decision by the registrar was that, since September
2012, the squatter’s occupation of the property had amounted to a criminal offence, and that this
period could not be used to establish an application under the LRA 2002, thereby preventing
acquisition of title by adverse possession. However, the Court overturned this, finding that section
144 has no “collateral effect” 138 on the doctrine due to the absence of public policy concern which
could override the doctrine; thus, the squatter could apply to be registered.
134
LASPO 2012, ss144(5)
135
Emma Lees, The Principles of Land Law (OUP 2020) 184
136
Lambeth LBC v Blackburn [2001] EWCA Civ 912
137
[2015] EWCA Civ 17 (CA)
138
Ibid [75] (Sales LJ)
Yet, it is suggested that Best has not completely clarified the relationship between adverse
possession and section 144. 139 Scholars have observed that the decision leaves open the possibility
of “disqualification for illegality” being read into Schedule 6 of the LRA 2002 if, unlike in Best,
the adverse possessor had been convicted of the criminal offence. 140 Goymour explains that even
if an adverse possessor’s conduct does not bar his civil law claim and his application under
Schedule 6 succeeds, he may nevertheless have to “give up the profits of his crime” under the
Proceeds of Crime Act 2002. 141 Therefore, section 144 may produce different results depending
on the facts of each case. Accordingly, although Parliament merely intended section 144 to offer
homeowners more powerful means of evicting trespassers, the “complications” 142 which have
arisen mean that the legislation has an ongoing interaction with the doctrine. Thus, it is not
possible to comprehensively analyse the doctrine divorced from the wider implications of
squatting and the criminal law given adverse possession of residential properties is most likely to
occur in cases involving squatters. 143
The Consequences of Section 144 LASPO 2012
Under section 7 of the CLA 1977, although adverse possessors would commit an offence in their
trespass of residential premises, this would normally constitute a civil wrong, although if the
proprietor was a DRO or PIO the adverse possessor would commit “aggravated trespass” and
trigger the criminal law.144 Thus, generally the proprietor would have to enforce his civil rights
with a possession order granted by the courts as squatting was a private dispute between the
proprietor and squatter.145 However, section 144 reallocates such duties to the state, merely
requiring the dispossessed proprietor to alert the police to the squatter’s presence upon which
the police can enter and arrest the squatter. Accordingly, as scholars observe, section 144 has
139
Martin Dixon, ‘Criminal Squatting and Adverse Possession: The Best Solution?’ (2014) Journal of
Housing Law 94; Amy Goymour, ‘Squatters and the criminal law: can two wrongs make a right?’ (2014)
73 CLJ 484
140
Ben McFarlane et al, Land Law (2 edn, OUP 2020) 134
nd
141
Goymour (n 139) 486
142
Ibid 487
143
Lees (n 135) 187
144
Lorna Fox O’Mahony and Marc Roark, ‘Workshop on Vulnerability Theory and the Human
Condition: Celebrating a Decade of Innovation Pt.2’ (University of Leeds, 2018) 5
145
Civil Procedure Rules 1998, part 55.8
“ diluted the link” 146 to, still less “ swept aside”,147 the notion of land stewardship by enhancing the
resilience of dilatory owners. Such a view is furthered by criminalisation recasting the
dispossessed proprietor as a victim needing state protection from hardship rather than culpable
for losing possession of his property.
Furthermore, it is suggested that the “national resource protected by section 144 is the capital
investment in property not the use of that property”.148 There is strength in this argument given
section 144 extends the criminal law to empty properties and those not classifying as DROs or
PIOs under section 7 of the CLA 1977. This has important implications as the majority of non-
DROs and non-PIOs are those who own multiple properties but do not use them as their primary
residences.149 Thus, as Nowicki notes, section 144 opens up “a swathe of empty properties to
more market-oriented uses”.150 Indeed, second homeowners, landlords and investors can feel
more secure in leaving their surplus properties empty as section 144 apportions owners with
“state-sponsored resilience” 151 against squatters. With an understanding of the implications of
section 144, discussion will turn to its legislative process.
The Moral Agenda within Section 144 LASPO 2012
As scholars observe, there was “ no cause célèbre” 152 for the changes to squatting laws under
section 144. The Ministry of Justice masqueraded section 144 as essential for proprietors “to
146
O’Mahony and Roark (n 144) 36
147
David O’Mahony and Lorna Fox O’Mahony, ‘Crime as property: a restorative perspective on the
criminalisation of squatting and the ‘ownership’ of unlawful occupation’ in Lorna Fox O’Mahony et al
(eds), Moral Rhetoric and the Criminalisation of Squatting: Vulnerable Demons? (Routledge 2014) 16
148
Ibid 19
149
Ministry of Justice, Options for dealing with squatting (CP12/2011) 1
<https://consult.justice.gov.uk/digital-communications/dealing-with-squatters/results/options-dealing-
squatting-response.pdf> accessed 9 March 2021
150
Melanie Nowicki, ‘Bringing Home the Housing Crisis: Domicide and Precarity in Inner London’
(PhD, Royal Holloway 2017)
151
Fox O’Mahony and Roark (n 144) 35
152
Heather Conway and John Stannard, ‘The Emotional Paradoxes of Adverse Possession’ (2013) 64(1)
NILQ 75, 87
regain possession of their property more quickly and easily”. 153 However, the Law Society, the
Criminal Bar Association and the Metropolitan Police unanimously opined that the Government
should focus on enforcing the existing criminal law under section 7 of the CLA 1977 rather than
creating a new offence.154 In addition, a sweeping 96% of respondents to consultation opposed
any changes to existing squatting laws; 155 thus, the general consensus suggested that section 7
provided sufficient protections. Accordingly, Weatherley’s argument that section 144 addresses
“one of the most pernicious loopholes in British law” 156 is unconvincing.
In addition, section 144’s consultation papers construct binary identities of advertent squatters
and dispossessed landowners, presenting the former as causing “the greatest distress” by invading
the “ home” of the latter who is labelled as a “ victim”,157 thereby shaping the direction of the
legislative process from the outset. This dichotomy was entrenched by media spin and political
rhetoric framing squatters as “guileful, hedonistic property thieves” 158 and exaggerating the scale
of squatting-related issues. The framing of squatters as home invaders thus diverted public
attention away from the prevailing social issues such as empty properties and diminishing
affordable housing, instead focussing upon squatters as criminals whom they needed protecting
from through “public punishment, retribution and censure”. 159 Significantly, the exaggerations
were ultimately discredited by leading legal academics and practitioners raising concerns of
“repeated inaccurate reporting” and “widespread distortions of the current law” 160 by MPs and
Ministers to arouse fear amongst homeowners and sustain the campaign against squatters.
153
Wilson (n 70) 12
154
Ministry of Justice (n 149) 10
155
Ibid 7
156
Mike Weatherley, ‘Make squatters criminals and let an Englishman’s home become his castle again’
Daily Mail (7 September 2011) <https://www.dailymail.co.uk/debate/article-2034530/Make-squatters-
criminals-let-Englishmans-home-castle-again.html> accessed 24 March 2021
157
Ministry of Justice (n 149) 36, 2, 7
158
Nowicki (n 150)
159
O’Mahony and Fox O’Mahony (n 147) 1
160
Unknown Author, ‘Media and politicians are misleading about law on squatters’ Guardian (25
September 2011) <https://www.theguardian.com/society/2011/sep/25/squatting-law-media-politicians>
accessed 26 March 2021
Nevertheless, the overwhelming opposition to changes in squatting laws was disregarded,

suggesting that the consultation was a box-ticking exercise rather than a forum for debate.
Following the consultation, section 144 was hastily tacked onto the LASPO bill three days before
the final Third Reading, a highly irregular procedure subverting the democratic process. Indeed,
radical in its content and far-reaching in its consequences, politicians note that section 144 was
subject to an “absurdly rushed” 161 parliamentary process. It was not passed through a Committee
Stage and was given “very little opportunity for scrutiny”, 162 particularly as all debates were held
late at night, resulting in low attendance in both chambers. Thus, it is suggested that the
“haphazard way in which the offence came to be created” 163 perpetuates the state’s agenda to
extend criminal law “to deal with individuals who are viewed as problematic” 164 and fast-tracking
its agenda against squatters by labelling their activities as criminal. With an understanding of the
underlying moral agendas driving section 144 LASPO and the LRA 2002, a closer scrutiny of
these perspectives will be taken.
Displacing the Moral Agendas
The moral perspectives pervading the reforms are ultimately the product of a society historically
and culturally preoccupied with ownership and the old adage an Englishman’s home is his
castle.165 This section seeks to displace the moral perspectives deployed by lawmakers and thus
provide fertile ground for proposing reforms in the forthcoming chapter.
Firstly, the overwhelming discourse that adverse possession is “tantamount to sanctioning a theft
of land” 166 has tainted a doctrine which has stood the test of time with the most deplorable and
morally inexcusable violation of property rights. This is a powerful argument according with
rumblings of resentment from judicial voices, whom have described the doctrine as “unjust” 167
161
HC Deb, 1 November 2011, vol 534, col 779
162
HL Deb, 15 February 2012, vol 540, col 909
163
Dixon, ‘Criminal Squatting’ (n 139) 94
164
O’Mahony and Fox O’Mahony (n 147) 3
165
Floyd Rudmin, ‘Cross-Cultural Correlates of the Ownership of Private Property’ (1992) 21 Soc Sci
Res 57
166
167
Pye v Graham [2002] UKHL 30 [2] (Lord Bingham)
towards the absent landowner and a “windfall” 168 for the advertent squatter. It is often argued that,
as the former has likely sacrificed a great amount to obtain his land, it is a stiff penalty to forfeit
his title due to mere oversight and without due compensation. 169 This shortcoming becomes more
apparent when considering acquisition schemes by government authorities, such as Compulsory
Purchase Orders, which usually provide the dispossessed owner with compensation in addition
to the payment for selling the property. 170
The land-theft argument is certainly the most formidable criticism of the doctrine, however, to
argue that adverse possession is theft is to contend that property rights are absolute. Yet, this
dissertation postulates that property rights are qualified by a competence to provide stewardship.
Therefore, an alternative interpretation of an absent landowner who fails to perform “the most
cursory” 171 monitoring to fend off an adverse possession claim suggests that he is at fault for
breaching his “ duty to prevent waste” 172 of the valuable resource. While some may argue that the
doctrine sanctions a moral theft, the combined stewardship and spoilage proviso of holdings
being limited to “no more of the available resources than needed” 173 would support quite the
opposite given the owner’s neglect of the wider interest in effective land use.
Moreover, the land-theft argument becomes less persuasive when evaluating the modus operandi
of a thief. Indeed, an adverse possessor openly asserts his own claim to ownership of the property
through submission of an application to the Registry. Contrastingly, a thief dishonestly
appropriates property belonging to another, conceals his wrongdoing and attempts to “dupe
society into thinking he is the owner”. 174 As scholars observe, the latter clearly knows he is
committing a wrong whereas the former is “taking advantage of what the law allows them to do”; 175
thus, it is inconsistent to view someone as a thief when he is doing “nothing more than knowingly
168
Ibid [2000] Ch 676 [710] (Neuberger J)
169
Stake (n 44) 2421
170
Land Compensation Act 1973, part IV
171
Shepard (n 5) 589
172
Karp (n 53) 749
173
Fritsch (n 48) 248
174
Larissa Katz, ‘The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property
Law’ (2010) 55 McGill LJ 47, 73
175
Conway and Stannard (n 152) 86
employing the law’s own process” 176 to acquire title. Furthermore, the adverse possessor must
overcome numerous “heavy burdens” and “rigorous requirements” 177 including a lengthy
continuous period of adverse possession; as Meredith notes, “adverse possession does not
transfer title overnight”.178 Green agrees, asserting that if a squatter is essentialised as stealing, “in
practice he can do so only if the neighbour is a bad owner, a waster of the nation’s natural
resources”.179 Accordingly, it is submitted that, rather than “land-theft”, adverse possession should
be seen as “encouraging productive land use”.180
Secondly, the Ministry of Justice asserted that section 144 serves to strengthen the process of
evicting squatters due to an influx of concerns about the “appalling impact” they have on people’s
“ homes” .181 Whilst section 144 has reduced the costs and time taken to evict trespassers, the
emphasis on squatters invading homes is less convincing. Indeed, the Government acknowledged
its lack of data regarding the nature of squatting.182 It is suggested that instances of squatters
usurping owner-occupied properties “are miniscule”. 183 Even the pioneer of section 144, Mike
Weatherley, acknowledges that the media disseminates many “ highly exaggerated home
invasions”.184 It is suggested that squatters are arguably most aware of the harsh troubles of
homelessness and are unlikely seeking to inflict the devastation upon others. Kearns’ research
affirms this, finding that many squatters have a “strong moral and psychological hesitation about
invasion of private property”.185 Rather, squatters are known to target properties inexplicably left
176
Fennell (n 64) 1044
177
Penalver and Katyal (n 105) 1146
178
Christopher Meredith, ‘Imputed Abandonment: A Fresh Perspective on Adverse Possession and a
Defense of the Objective Standard’ (2010) 29 Mississippi College Law Review 257, 268
179
Kate Green, ‘Citizens and Squatters: Under the Surfaces of Land Law’ in Susan Bright and John
Deward (eds), Land Law: Themes and Perspectives (OUP 1998) 241
180
Dixon, ‘The reform of property law’ (n 118) 152
181
182
Ibid 20
183
HL Deb (n 162) col 908
184
Mike Weatherley, ‘Despite Recent Attack by Violent Squatters Mike delivers Speech to Sussex
Students’ (7 December 2012) <https://www.mikeweatherley.com/2012/12/07/despite-recent-attack-by-
violent-squatters-mike-delivers-speech-to-sussex-students/> accessed 24 March 2021
185
Kevin Kearns, ‘Urban Squatter Strategies: Social Adaptation to Housing Stress in London’ (1981) 10
Journal of Contemporary Ethnography 123, 139
“unoccupied for months or years”, 186 carefully researching into the ownership of the property
before occupying it.187
Moreover, the Ministry of Justice raised concerns about the “appalling impact” 188 squatters have
on local communities. However, during consultation only 25 members of the public expressed
their concerns about this; 189 thus, the Government’s own consultation reflects a lack of concern
towards this issue. The argument becomes even less persuasive when considering the utility
facilitated by squatters in regenerating communities. Empty properties are wasted financial
resources. Research has shown that they detriment community well-being, “attract illegality
activity” and “affect the viability of local businesses and schools”. 190 It is submitted that squatters
restoring use to empty properties engender a myriad of economic efficiency: they can revitalise
local business through stimulating demand in the area and reverse the negativities inflicted by
empty properties.191 Furthermore, if the squatter’s long-term possession ripens into an adverse
possession claim, they can bring dormant properties back into commerce. Such utility is
portrayed in the US where some communities actively recruit squatters to revitalise
neighbourhoods and mitigate empty property issues. 192
In addition, squatters frequently renovate properties which become “visual symbols that once
abandoned places are no longer free to be misused”. 193 Constructing improvements upon land is
encouraged in the factual possession element of adverse possession which requires a squatter to
deal with the property as an occupying owner might deal with it.194 This element can be satisfied
by activities such as general repairs, cutting hedges and constructing fencing. 195 Moreover, in Best,
186
HL Deb (n 162) col 908
187
Kevin Kearns, ‘Inner-urban squatters in western industrialized society: a London case study’ (1979)
46 Ekistics 76, 78
188
189
Ibid 7
190
Eugenia Garvin et al, ‘More Than Just an Eyesore: Local Insights and Solutions on Vacant Land and
Urban Health (2012) 90 Journal of Urban Health 412, 412, 418
191
Kearns, ‘Inner-urban squatters’ (n 187)
192
E.g. Detroit Michigan. De Biasi (n 5) 67
193
Ibid 74
194
Powell (n 78)
195
Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94
the squatter restored habitability to a vandalised property by repairing the roof, replacing heating
and electric fitments, and clearing the garden. 196 Similarly, in Lambeth LBC v Archangel , the
squatter expended immense effort to renovate a forgotten council property into a rehabilitation
charity.197 Accordingly, squatters can provide a social surplus by ensuring empty properties cease
to appeal as havens of criminal activity 198 which can potentially reduce strain on local authorities
which lack the funding and staff to regularly monitor and ensure empty properties have not fallen
into illegal use.
Finally, the Government openly acknowledge the adverse impacts of empty properties, asserting
that they are a problematic “blight” on neighbourhoods. 199 Yet, although the Ministry of Justice
deployed the rhetoric of protecting occupied homes, section 144 is “clearly targeted at
criminalising squatting in vacant residential property ”.200 It extends criminal protections to empty
properties and affords greater protection to owners of multiple properties who, as discussed in
Chapter I, often leave their properties dormant, thus conflicting with the Government’s own
recognition of the detriments of empty properties.
In light of the foregoing, it is submitted that the Law Commission and the Ministry of Justice’s
moral agenda against adverse possession and squatters is ill-founded and overly simplistic. The
current framework of adverse possession is therefore ripe for reform.
Conclusion
This chapter has scrutinised the LRA 2002 and section 144 LASPO and demonstrated their
shortcomings. It has argued that their combined impact inhibits landowners’ stewardship
responsibilities and endorses absentee ownership. It has further suggested that both were driven
by essentialist moral perspectives which have subsequently been proven ill-founded. Accordingly,
196
Best (n 138)
197
[2000] EWCA Civ 303
198
De Biasi (n 5) 73
199
200
Lorna Fox O’Mahony and David O’Mahony, ‘Criminalising Squatting: Setting an Agenda’ in Lorna
Fox O’Mahony et al (eds), Moral Rhetoric and the Criminalisation of Squatting: Vulnerable Demons?
(Routledge 2014) 5
a case for reform has been made and discussion will turn to how the law may be modified to
remedy the issue of under-utilised properties.
CHAPTER 3
Unveiling the Proposed Reforms

Direction of Reform
There is evidence that jurisdictional approaches to adverse possession evolve to meet changing
circumstances. For example, New Zealand and some Australian territories previously
administered a prohibition system of adverse possession but re-introduced the doctrine over
registered land to combat high-incidences of vacant properties and marketability difficulties. 201
201
Malcolm Park, ‘The Effect of Adverse Possession on Part of a Registered Title Land Parcel (PhD,
University of Melbourne 2003) Ch.6
The foregoing chapter demonstrated that adverse possession in England and Wales does not
easily operate to remedy the issues of under-utilised properties and absent ownership which fuel
the housing crisis. Thus, it is submitted that the laws can be made more permissive so that the
doctrine can reach its fuller potential to assist in remedying these issues. This chapter will
consider shortening the statutory period of possession, implementing an option to purchase, and
softening the associated criminal law.
This dissertation acknowledges that the current framework of adverse possession operates
effectively in reflecting title-by-registration and concedes that any reforms cannot be isolated from
the registration system; thus, reverting to the LA 1980 regime is unfeasible. Nevertheless, Chapter
II demonstrated that the notice mechanism goes above and beyond the policy objective of
entrenching title-by-registration and inhibits the notion of stewardship. Therefore, this chapter
endeavours to demonstrate that a more permissive framework can promote the notion that
ownership is qualified by land stewardship whilst not undermining title-by-registration.
Liberalised Period of Adverse Possession
The current period of adverse possession for registered land is 10-years.202 Scholars have
observed that varying this period offers the “best proxy for the stringency of adverse
possession”.203 Indeed, in the US, to counter the changing availability of housing, some states have
liberalised their adverse possession laws by adopting shorter periods. 204 Several require just five-
years,205 and many reduce the period if the claimant takes actions such as paying taxes. 206 This
approach is shown to stimulate paper-owners into making greater use of their property due to
202
203
Netter et al (n 73) 221
204
Shannon McCarthy, ‘Squatting: Lifting the Heavy Burden to Evict Unwanted Company’ (2014) 9
UMass Law Review 156, 175
205
California Code of Civil Procedure 2019, §320; Montana Code Annotated 2019, §70-19-401
206
Colorado reduces the period from 18-years to seven years upon payment of taxes. Colorado Revised
Statutes 2017, §38-41-108
the increased risk of losing title. 207 Accordingly, as a nation facing similar housing difficulties, it
follows that England and Wales could benefit from mirroring this approach.
It should be acknowledged that lengthy periods of possession served a practical function of

providing certainty over title and expediting property claims in times of “decentralized records
and crude surveying techniques”. 208 However, such protracted periods are “simply
anachronistic” 209 in light of changes in land registration and technology. As discussed, following
the LRA 2002’s enactment, title is now primarily based on a register which provides formality
and transparency through recording and guaranteeing interests in land. Furthermore, substantial
developments in surveillance technology and aerial photography mean that monitoring land has
become “easier and cheaper”. 210 Common law has also developed such that adverse possession
must be continuously “ open and apparent to anyone who had eyes to see” 211 and acquisition of
title is prevented where deception is found. 212 Accordingly, paper-owners need not expend as
much effort in expelling hostile claims which has resulted in adverse possession having become
“radically underinclusive”, 213 particularly in the context of immobile urban properties as opposed
to forested rural land. Thus, 10-years is a generous period for a reasonably prudent proprietor
to discover a squatter in an era characterised by modernisations.
It might be contended that shortening the period of adverse possession would overburden
landowners with substantial monitoring costs. Shepard provides a compelling response, asserting
that an owner lacking the resources to monitor his property will also lack the ability to use it
efficiently, suggesting that landowners’ holdings should be capped at the margin that they can
monitor effectively.214 Shepard’s argument has some force as he proposes limiting holdings to the
207
Itzchak Raz, ‘Use It or Lose It: Adverse Possession and Economic Development’ Working Paper
2018, 24 <https://scholar.harvard.edu/iraz/publications/use-it-or-lose-it-adverse-possession-and-
economic-development> accessed 6 April 2021
208
John Sprankling, ‘Environmental Critique of Adverse Possession’ (1994) 79 Cornell Law Review 816,
822
209
Gardiner (n 32) 156
210
Shepard (n 5) 586
211
Topplan Estates Ltd v Townley [2004] EWCA Civ 1369 [86] (Parker LJ)
212
Beaulane Properties Ltd v Palmer [2005] EWHC 817 (Ch)
213
Penalver and Katyal (n 105) 1171
214
Shepard (n 5) 571
point when landowners are unable to effectively steward property, thereby discouraging
properties from lying dormant. Moreover, Stake asserts that increased monitoring costs could
result in some absentee owners, whose holdings are so large that they are unable to sustain the
monitoring costs, to sell their property. 215 Accordingly, more properties could be released onto
the market and potentially bought by those seeking a primary residence.
It is submitted that the period of adverse possession should be shortened on condition that the
adverse possessor pays any property taxes due at the end of this period, thereby providing him
with sufficient time to settle the payments. Whilst this proposal should be considered a “minor
statutory amendment” 216 and relates to but one component of an adverse possession claim,
reformists should nevertheless remain conscious of over-liberalisation to avoid elevating
monitoring costs to unsustainably high levels and undermining security of tenure. However, when
a careful balance is struck, and an optimal time-period is found, this reform could better ensure
existing properties are not left dormant as paper-owners should become more vigilant of the
consequences of a shortened period of adverse possession. Yet, even with a reduced statutory
period, adverse possessors may still succumb to an owner’s veto. Thus, discussion will turn to
the notice mechanism.
Option to Purchase with Discretionary Approach
Similar to a lease whereby tenants may be granted an option to purchase the freehold at the end
of tenancy, one possible suggestion by Pullar is to grant the adverse possessor a statutory right to
purchase the property after fulfilling the statutory period of adverse possession, without the
paper-owner’s consent.217 Cherek similarly suggests that adverse possessors should pay fair value
for the property after the statutory period. 218 This compensatory reform should settle any lingering
doubts regarding adverse possession sanctioning a theft.
215
Stake (n 44) 2437
216
Burns (n 74) 811
217
Zachariah Pullar, ‘An Inquiry Into Whether Parliament’s “Virtual Abolition” of the Doctrine of
Adverse Possession in the Land Registration Act 2002 is a Defensible Reform’ (2020) 45 Exeter Law
Review 6, 40
218
Cherek (n 75) 320
Moreover, as the foregoing chapter mentioned, it is suggested that the notice mechanism has
discouraged adverse possessors from submitting an application and therefore created a “dark
market in possessory titles” 219 outside of the registered framework. Accordingly, without the
“cloak of title”, they are unable to acquire title to the property thus rendering it in “undiscovered
limbo” 220 outside of the market. Granting an option to purchase could soften this issue by
compelling the paper-owner into an exchange rather than allowing him to veto the application,
thereby enticing more squatters to assert their title which could subsequently bring more
properties into commerce. This reform would also align adverse possession with the
Government’s desire to create greater paths to homeownership as squatting in itself is unstable.
It might be contended that many of those utilising adverse possession do so because conventional
housing tenures are financially unattainable to them, and that they are therefore unlikely to be
able to pay market price for the property. Cherek suggests one possible answer drawing upon
US state laws in which courts have discretion to determine the payment required from an adverse
possessor on a case-by-case basis.221 Within its consultation documents, the Law Commission
also allude to court-based discretionary powers for determining the remedy of an adverse
possession claim.222 Consistent with the factors suggested by the Commission, 223 one possible
caveat could be for the courts to consider, inter alia, the profiles of the adverse possessor and
paper-owner and the financial expenses and personal attachment of each party towards the
property. Following a holistic assessment, the court could determine the compensation required.
An argument could be raised that implementing subjective criteria undermines the certainty for
owners which the LRA 2002 exists to instil and that assessing each party’s personal attachment
to the property would prove contentious. Whilst these arguments have merit, it should be noted
that the LRA 2002 already implements an element of subjectivity in cases of boundary disputes
which require the applicant to have “ reasonably believed” 224 that the disputed land belonged to
him. It is submitted that this reform further empowers the doctrine to be adapted to case-specific
219
Pawlowski and Brown (n 102) 117
220
Cobb and Fox (n 46) 257-258
221
Cherek (n 75) 321
222
223
Ibid para 10.56
224
LRA 2002, Sch 6 para 5(4)(c)
circumstances and offers an effective compromise between the LA 1980’s highly permissive
regime and the LRA 2002’s “much watered down” 225 regime.
Reinstating Section 7 CLA 1977
The foregoing chapter suggested that the interaction between adverse possession and section 144
is unsettled. Indeed, although Sales LJ held that section 144 should not undermine the
doctrine,226 its wide ambit can make it more onerous to successfully claim adverse possession over
residential premises.227 Notably, the term “residential building” encompasses a wide-range of
structures,228 thereby exacerbating the risk of unlawful occupation. Furthermore, by criminalising
a necessary element of an adverse possession claim, section 144 acts as a “deterrent to would be
possessors”.229 Thus, as Hickey observes, section 144’s existence is “strange”: although it
recognises the potential for adverse possessors to become registered proprietors, its wide ambit
is “likely to catch anyone adversely possessing residential premises”. 230
Chapter II demonstrated that section 144’s necessity has been questioned and that the
protections under section 7 of the CLA 1977 were “broadly in the right place”. 231 Section 144’s
consultation also provided an option for continuing with the section 7 laws. 232 Accordingly, to
allay the aforementioned issues with section 144, one possible reform might be to reinstate
section 7 as the primary criminal law associated with adverse possession. This would revert
trespassing in residential buildings to a civil offence underpinned by criminal sanctions and, as
articulated in Labeling Theory, could soften the “criminal labelling”, stigmas and controversies
of an adverse possession claim being founded upon an illegal act.233 Thus, greater attention could
225
Smith (n 91) 55
226
Sales LJ (n 138)
227
Barbara Bogusz and Roger Sexton, Complete Land Law: Text, Cases, and Materials (6 edn, OUP
th
2019) 503
228
LASPO 2012, ss144(3)
229
Robin Hickey, ‘The Best Outcome: The Application of Schedule 6 and the Reinforcement of
Adverse Possession Policy under the Land Registration Act 2002’ (2017) Conv 53, 60
230
Ibid
231
232
Ibid 6
233
Jon Bernburg, ‘Labeling Theory’ (2009) Handbook on Crime and Deviance 187
be drawn to the doctrine’s potential to unlock under-utilised housing. However, section 7 is not
without its problems: its enforcement has been limited by the police’s lack of practical knowledge
on squatting.234 Nevertheless, as the Metropolitan Police suggested, if adequate training is
provided, section 7 could offer effective protections. 235
This reform could discourage absent ownership as section 7’s criminal protections only extend
to DROs or PIOs (generally owners using property as primary residences), thereby ensuring
homeowners using their properties as primary residences are “backed up” 236 with
“ comprehensive and effective” 237 criminal law protections. Concurrently, it discourages market-
oriented property use by stripping the criminal law protections from those not using their
properties as primary residences whilst still offering them protection through the civil law toolkit.
It thus provides a suitable balance between protecting owners and safeguarding the collective
interest in the meaningful use of housing.
Conclusion
This chapter has attempted to propose workable reforms to adverse possession and demonstrate
their potential merits and limitations. These cautious proposals attempt to afford sufficient
protections to registered proprietors whilst also suppressing the occurrence of under -utilised
properties. By implementing them, owners could become more attentive to their property and a
greater amount of the existing housing stock could be used to serve societal housing needs rather
than lying dormant.
234
Wilson (n 70) 14
235
236
Fox O’Mahony and O’Mahony (n 200) 2
237
HL Deb, 20 March 2012, col 895
CONCLUSION
This dissertation has attempted to advocate the relaxation of the laws on adverse possession in
light of the UK housing crisis. It is submitted that adverse possession’s existence is not
“increasingly strange”, 238 rather, with conservative changes, it can be shaped to promote the use
of property to serve societal housing needs and curb landowner absenteeism whilst not
undermining the functionality of the land registration system.
Chapter I argued that the housing crisis stems from absentee owners and the under-utilisation of
existing housing and that these issues might be softened by enhancing landowners’
238
Gray (n 4) 127
responsibilities towards their property. It is submitted that the model of stewardship provides the
necessary foundation to propose that landownership encompasses these responsibilities and that
adverse possession can make an essential contribution to promoting them. However, in Chapter
II, it was observed that the LRA 2002 and section 144 inhibit the potential to do so through
procuring a concept of ownership that disregards such responsibilities. By diffusing the moral
agendas behind these legislations, this dissertation rejects the current formulation of adverse
possession and its associated criminal law and proposes a balanced alternative.
Yet, whilst reforming adverse possession has been the focus of this dissertation, it should not be
viewed as the panacea to the need for more affordable and available housing. Indeed, the
characteristics and frequency of the doctrine’s application prevent it from operating as a primary
solution. The Government faces a difficult task of integrating methods to encourage efficient use
of the existing housing stock; a relaxed approach to adverse possession is but one potential
vehicle. Thus, while the reforms proposed in Chapter III could help to promote existing housing
to serve societal housing needs, they must be bolstered by wider government initiatives targeting
underlying systematic problems and accomplishing broader structural change to remediate the
complex social issue that is the housing crisis. Nevertheless, when the global pandemic has
exposed the challenges of housing affordability, and empty properties are in abundance, any
potential method of softening these issues is worth thorough consideration.
BIBLIOGRAPHY
Table of Cases (England and Wales):

• Baxter v Mannion [2010] EWHC 573 (Ch)
• Beaulane Properties Ltd v Palmer [2005] EWHC 817 (Ch)
• Best v Chief Land Registrar [2015] EWCA Civ 17
• Buckingham County Council v Moran [1990] Ch 623 (CA)
• Crosdil v Hodder [2011] EWLandRA 2009_1177
• Davies v Davies [2016] EWCA Civ 463
• J A Pye (Oxford) Ltd v Graham [2000] Ch 676
• J A Pye (Oxford) Ltd v Graham [2002] UKHL 30
• J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 (HL)

• Lambeth LBC v Archangel [2000] EWCA Civ 303
• Lambeth LBC v Blackburn [2001] EWCA Civ 912
• Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85
• Mancetter Developments v Garmanson and Givertz [1985] EWCA Civ 2
• Powell v McFarlane [1977] 38 P&CR 452 (Ch)
• Purbrick v Hackney LBC [2003] EWHC 1871
• R.B. Policies at Lloyd’s v Butler [1950] 1 KB 76
• Re Nisbet and Potts Contract [1906] 1 Ch 386
• Topplan Estates Ltd v Townley [2004] EWCA Civ 1369
• Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94
• Williams & Glyn’s Bank v Boland [1981] AC 487
Table of Cases (European Union):

• J A Pye (Oxford) Ltd v United Kingdom [2006] 43 EHRR 3
Table of Legislation (England and Wales):

• Civil Procedure Rules 1998
• Criminal Law Act 1977
• Land Compensation Act 1973
• Land Registration Act 1925
• Land Registration Act 2002
• Land Registration Rules 2003
• Legal Aid, Sentencing and Punishment of Offenders Act 2012
• Limitation Act 1980
• Proceeds of Crime Act 2002
Table of Legislation (United States):

• California Code of Civil Procedure 2019
• Colorado Revised Statutes 2017
• Montana Code Annotated 2019
Books:
• Bogusz B and Sexton R, Complete Land Law: Text, Cases, and Materials (6th edn, OUP
2019)
• Bowie D, Radical Solutions to the Housing Supply Crisis (1st edn, Policy Press 2017)
• Cooke E, The New Law of Land Registration (1st edn, Hart 2003)
• Davys M, Land Law (11th edn, Red Globe Press 2019)
• Dixon M, Modern Land Law (10th edn, Routledge 2018)
• Dorling D, All that is Solid: The Great Housing Disaster (Allen Lane 2014)
• — — Peak Inequality: Britain’s Ticking Time Bomb (Policy Press 2018)
• Fritsch A, Environmental Ethics: Choices for Concerned Citizens (Doubleday 1980)
• Gray K and Gray S, Elements of Land Law (5th edn, OUP 2007)
• Lees E, The Principles of Land Law (OUP 2020)
• Locke J, Second Treatise of Government (1690)
• McFarlane B, Hopkins N and Nield S, Land Law (2nd edn, OUP 2020)
• Valentine D, Solving the UK Housing Crisis: An analysis of the investment demand behind
the UK’s housing affordability crisis (Bow Group 2015)
Contributions to Edited Books :

• Fox O’Mahony L and O’Mahony D ‘Criminalising Squatting: Setting an Agenda’ in Lorna
Fox O’Mahony et al (eds), Moral Rhetoric and the Criminalisation of Squatting: Vulnerable
Demons? (Routledge 2014)
• Green K, ‘Citizens and Squatters: under the surface of land law’ in Susan Bright and John
Deward (eds), Land Law Themes and Perspectives (OUP 1998)
• O’Mahony D and Fox O’Mahony L, ‘Crime as property: a restorative perspective on the
criminalisation of squatting and the ‘ownership’ of unlawful occupation’ in Lorna Fox
O’Mahony et al (eds), Moral Rhetoric and the Criminalisation of Squatting: Vulnerable
Demons? (Routledge 2014)
• Smith R, ‘The Role of Registration in Modern Land Law’ in Louis Tee (ed), Land Law:
Issues, Debates, Policy (Willan 2002)
Journal Articles:
• Atkinson R, ‘Necrotecture: Lifeless Dwellings and London’s Super-Rich’ (2018) 43(1)
International Journal of Urban and Regional Research 2
• Bernburg J, ‘Labeling Theory’ (2009) Handbook on Crime and Deviance 187
• Bogusz B, ‘Bringing Land Registration into the Twenty-First Century – The Land
Registration Act 2002’ (2008) 65 MLR 556
• Bramley G, ‘An Affordability Crisis in British Housing: Dimensions, Causes and Policy
Impact’ (1994) 9 Housing Studies 103
• Burns F, ‘Adverse Possession and Title-by-registration Systems in Australia and England’
(2011) 35 Melbourne University Law Review 773
• Cherek K, ‘From Trespasser to Homeowner: The Case Against Adverse Possession in the
Post-Crash World’ (2012) 20(2) Virginia Journal Soc Pol & Law 271
• Claeys E, ‘Locke Unlocked: Productive Use in Encroachment, Adverse Possession and
Labor Theory’ (2013) 12-21 George Mason University Law and Economics
• Cobb N and Fox L, ‘Living Outside the System? The (Im)morality of Urban Squatting
After the Land Registration Act 2002’ (2007) 27 LS 236
• Conway H and Stannard J, ‘The Emotional Paradoxes of Adverse Possession’ (2013) 64(1)
NILQ 75
• De Biasi A, ‘Squatting and adverse possession’ (2019) 23(1) City 66
• Dickson B, ‘Safe in their hands? Britain’s Law Lords and human rights’ (2006) 26(3) LS
329
• Dixon M, ‘Adverse Possession and Human Rights’ (2005) Conv 345
• — — ‘Criminal Squatting and Adverse Possession: The Best Solution?’ (2014) Journal of
Housing Law 94
• — — ‘The reform of property law and the Land Registration Act 2002: A risk assessment’
(2003) Conv 136
• Fennell L, ‘Efficient Trespass: The Case for ‘Bad Faith’ Adverse Possession’ (2006) 100
Northwestern University Law Review 1037
• Fox O’Mahony L and Cobb N, ‘Taxonomies of Squatting: Unlawful Occupation in a New
Legal Order’ (2008) 71(6) MLR 878
• Gallent N, Durrant D and May N, ‘Housing supply, investment demand and money
creation: A comment on the drivers of London’s housing crisis’ (2017) 54 Urban Studies
2204
• Gardiner B, ‘Squatters’ Rights and Adverse Possession: A Search for Equitable Application
of Property Laws’ (1997) 8(1) Indiana International & Comparative Law Review 119
• Garvin E, Branas C, Keddem S, Sellman J and Cannuscio C, ‘More Than Just an Eyesore:
Local Insights and Solutions on Vacant Land and Urban Health (2012) 90 Journal of
Urban Health 412
• Goymour A, ‘Squatters and the criminal law: can two wrongs make a right?’ (2014) 73 CLJ
484
• Hickey R, ‘The Best Outcome: The Application of Schedule 6 and the Reinforcement of
Adverse Possession Policy under the Land Registration Act 2002’ (2017) Conv 53
• Holmes O, ‘The Path of the Law’ (1897) 10 HLR 457
• Karp J, ‘A Private Property Duty of Stewardship: Changing our Land Ethic’ (1993) 23
Environmental Law 735
• Katz L, ‘The Moral Paradox of Adverse Possession: Sovereignty and Revolution in
Property Law’ (2010) 55 McGill LJ 47
• Kearns K, ‘Inner-urban squatters in western industrialized society: a London case study’
(1979) 46 Ekistics 76
• — — ‘Urban Squatter Strategies: Social Adaptation to Housing Stress in London’ (1981) 10
Journal of Contemporary Ethnography 123
• Li T, ‘What is land? Assembling a resource for global investment’ (2014) 39 Transactions
of the Institute of British Geographers 589
• Lucy W and Mitchell C, ‘Replacing Private Property: The Case for Stewardship’ (1996) 55
CLJ 566
• Malpass P, ‘The Wobbly Pillar? Housing and the British Post-war Welfare State’ (2003)
32(4) Journal Soc Pol 589
• McCarthy S, ‘Squatting: Lifting the Heavy Burden to Evict Unwanted Company’ (2014) 9
UMass Law Review 156
• Meredith C, ‘Imputed Abandonment: A Fresh Perspective on Adverse Possession and a
Defense of the Objective Standard’ (2010) 29 Mississippi College Law Review 257
• Netter J, Hersch P and Manson W, ‘An Economic Analysis of Adverse Possession
Statutes’ (1986) 6 International Review of Law and Economics 217
• Pawlowski M and Brown J, ‘Adverse Possession and the Transmissibility of Possessory
Rights – The Dark Side of Land Registration?’ (2017) 81 Conv 116
• Penalver E and Katyal S, ‘Property Outlaws’ (2007) 155 UPenn Law Review 1095
• Preece J, Hickman P and Pattison B, ‘The affordability of “affordable” housing in England:

conditionality and exclusion in a context of welfare reform’ (2019) 35(7) Housing Studies
1214
• Pullar Z, ‘An Inquiry Into Whether Parliament’s “Virtual Abolition” of the Doctrine of
Adverse Possession in the Land Registration Act 2002 is a Defensible Reform’ (2020) 45
Exeter Law Review 6
• Richardson S, ‘Abandonment and Adverse Possession’ (2015) 52 Houston Law Review
1385
• Rudmin F, ‘Cross-Cultural Correlates of the Ownership of Private Property’ (1992) 21 Soc
Sci Res 57
• Shepard S, ‘Adverse Possession, Private-Zoning Waiver & Desuetude: Abandonment &
Recapture of Property and Liberty Interests’ (2011) 44 UMich Journal of Law Reform 557
• Sprankling J, ‘Environmental Critique of Adverse Possession’ (1994) 79 Cornell Law
Review 816
• Stake J, ‘The Uneasy Case for Adverse Possession’ (2001) 89 Georgetown LJ 2419
• Swanson S, ‘Sitting on your Rights: Why the Statute of Limitations for Adverse Possession
Should Not Protect Couch Potato Future Interest Holders’ (2011) 12(2) Florida Coastal
Law Review 305
Government Documents:
• Department for Business, Energy & Industrial Strategy, Law Commission Review of the
Land Registration Act 2002: Government Full Response (March 2021)
<https://www.gov.uk/government/publications/land-registration-act-2002-government-
response-to-the-law-commission-review/law-commission-review-of-the-land-registration-act-
2002-government-full-response> accessed 13 April 2021
• Ministry of Housing, Local authority housing statistics data returns for 2019 to 2020
(December 2020) <https://www.gov.uk/government/statistical-data-sets/local-authority-
housing-statistics-data-returns-for-2019-to-2020> accessed 19 March 2021
• Ministry of Housing, Table 615: vacant dwellings by local authority distract: England, from
2004 (March 2021) <https://www.gov.uk/government/statistical-data-sets/live-tables-on-
dwelling-stock-including-vacants#history> accessed 21 April 2021
• Ministry of Justice, Options for dealing with squatting (CP12/2011)

<https://consult.justice.gov.uk/digital-communications/dealing-with-squatters/results/options-
dealing-squatting-response.pdf> accessed 9 March 2021
• ONS, ‘House Price to Residence-based Earnings Ratio’ (25 March 2021)
• ONS, ‘Overview of the UK population: January 2021’ (14 January 2021)
• ONS, ‘Private rental market summary statistics in England: October 2019 to September
2020’ (11 December 2020)
• ONS, ‘The UK national balance sheet estimates: 2018’ (29 August 2018)
• ONS, ‘UK House Price Index: December 2020’ (17 February 2021)
Hansard Reports:
• HC Deb, 12 September 2011, col 1032W
• HC Deb, 1 November 2011, vol 534, col 779
• HC Deb, 29 November 2011, cols 911-916
• HL Deb, 15 February 2012, vol 540, cols 908-909
• HL Deb, 20 March 2012, col 895
Law Commission Reports:

• Law Commission, Land Registration for the Twenty-First Century: A Consultative
Document (Law Com No 254 1998)
• Law Commission, Land Registration for The Twenty-First Century: A Conveyancing
Revolution (Law Com No 271 2001)
• Law Commission, Third Report on Land Registration (Law Com No 158 1987)
• Law Commission, Updating the Land Registration Act 2002 (Law Com No 227 2016)
Parliamentary Briefing Papers:

• Barton C, Cromarty H and Wilson W, ‘Empty housing’ (Briefing Paper, October 2020)
<https://commonslibrary.parliament.uk/research-
briefings/sn03012/#:~:text=Statistics%20published%20by%20the%20Ministry,on%20the%2
0previous%20year's%20total> accessed 6 January 2021
• Wilson W and Barton C, ‘Tackling the under-supply of housing in England (Briefing
Paper, January 2021) <https://commonslibrary.parliament.uk/research-briefings/cbp-
7671/#:~:text=Estimates%20have%20put%20the%20number,increased%20by%20around%
20244%2C000%20homes> accessed 31 March 2021
• Wilson W, ‘Briefing on: Evicting Squatters’ (Briefing Paper, June 2017)

<https://commonslibrary.parliament.uk/research-briefings/sn00355/> accessed 11 April
2021
Conference Papers:
• Woods U, ‘Adverse Possession – Does the owner get his just deserts?’ (Centre for Housing
Law, Rights and Policy International Conference, Galway, April 2012)
<https://ulir.ul.ie/bitstream/handle/10344/4305/Woods_2012_Owner.pdf?sequence=2>
accessed 20 March 2021
Newspaper Articles:
• Unknown Author, ‘Media and politicians are misleading about law on squatters’ Guardian
(25 September 2011) <https://www.theguardian.com/society/2011/sep/25/squatting-law-
media-politicians> accessed 26 March 2021
• Weatherley M, ‘Make squatters criminals and let an Englishman’s home become his castle
again’ Daily Mail (7 September 2011) <https://www.dailymail.co.uk/debate/article-
2034530/Make-squatters-criminals-let-Englishmans-home-castle-again.html> accessed 24
March 2021
Theses:
• Nowicki M, ‘Bringing Home the Housing Crisis: Domicide and Precarity in Inner London’
(PhD, Royal Holloway 2017)
• Park M, ‘The Effect of Adverse Possession on Part of a Registered Title Land Parcel (PhD,
University of Melbourne 2003)
Websites and Blogs:

• May N, ‘Building more houses cannot solve the housing crisis’ ( UCL Re-thinking Housing ,
2016) <https://www.ucl.ac.uk/grand-challenges/sustainable-cities/our-work/re-thinking-
housing/building-more-houses-cannot-solve-housing-crisis> accessed 31 March 2021
• Robson B, ‘Using the Social Housing Green Paper to Boost the Supply of Low-cost Rented
Homes’ (Joseph Rowntree Foundation, 2018) <https://www.jrf.org.uk/report/using-social-
housing-green-paper-boost-supply-low-cost-rented-homes> accessed 14 February 2021
• Weatherley M, ‘Despite Recent Attack by Violent Squatters Mike delivers Speech to
Sussex Students’ (7 December 2012)
<https://www.mikeweatherley.com/2012/12/07/despite-recent-attack-by-violent-squatters-
mike-delivers-speech-to-sussex-students/> accessed 24 March 2021
Other:
• Bangham G, ‘Game of Homes: The rise of multiple property in Great Britain’ ( Resolution
Foundation, 2019) <https://www.resolutionfoundation.org/app/uploads/2019/06/Game-of-
Homes.pdf> accessed 17 March 2021
• Barker K, ‘Review of Housing Supply, Delivering Stability: Securing our Future Housing
Needs’ (2004)
• Bourne J, ‘Empty Homes: mapping the extent and value of low-use domestic property in
England and Wales’ (2019) 5 Palgrave Communications <https://doi.org/10.1057/s41599-
019-0216-y> accessed 1 April 2021
• Fox O’Mahony L and Roark M, ‘Workshop on Vulnerability Theory and the Human
Condition: Celebrating a Decade of Innovation Pt.2’ (University of Leeds, 2018)
• Houston D, Reuschke D, Sabater A, Maynard K and Stewart N, ‘Gaps in the Housing
Safety Net’ (University of St Andrews, 2014)
<https://assets.ctfassets.net/6sxvmndnpn0s/42ry4TxBaxZO5myvVnD0Yh/8b589e81c1d9b
5993f449db8ba041796/Final_report.pdf> accessed 20 March 2021
• NHF, ‘Home Truths 2014/2015’ (2015) <https://s3-eu-west-
1.amazonaws.com/pub.housing.org.uk/Home_Truths_2014_-
_Broken_Market_Broken_Dreams.pdf> accessed 14 February 2021
• Raz I, ‘Use It or Lose It: Adverse Possession and Economic Development’ Working Paper
2018 <https://scholar.harvard.edu/iraz/publications/use-it-or-lose-it-adverse-possession-and-
economic-development> accessed 6 April 2021

Adverse Possession and The Housing Crisis

Uploaded by

Copyright:

Available Formats

You might also like

Adverse Possession and The Housing Crisis

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Adverse Possession and The Housing Crisis

Uploaded by

Copyright:

Available Formats

Durham Law Review

A Critical Analysis of the Current Status of the Doctrine

The Housing Crisis and Foundation for Reform

needed”.62 Accordingly, with an introduction to adverse possession as a mechanism for

Public Policy of Adverse Possession

An emerging literature has considered adverse possession in the context of modern-day

Analysing Adverse Possession

The Past and Present Land Law

In order to appreciate why adverse possession is well-suited to promoting stewardship, an

The Consequences of the LRA 2002

Indicative evidence of this disbalance is reflected in adverse possession applications having

The Moral Agenda within the LRA 2002

Adverse Possession’s Clash with the Criminal Law

The Consequences of Section 144 LASPO 2012

The Moral Agenda within Section 144 LASPO 2012

Nevertheless, the overwhelming opposition to changes in squatting laws was disregarded,

Displacing the Moral Agendas

Unveiling the Proposed Reforms

Liberalised Period of Adverse Possession

It should be acknowledged that lengthy periods of possession served a practical function of

Option to Purchase with Discretionary Approach

Reinstating Section 7 CLA 1977

Table of Cases (England and Wales):

• J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 (HL)

Table of Cases (European Union):

Table of Legislation (England and Wales):

Table of Legislation (United States):

Contributions to Edited Books :

• Preece J, Hickman P and Pattison B, ‘The affordability of “affordable” housing in England:

• Ministry of Justice, Options for dealing with squatting (CP12/2011)

Law Commission Reports:

Parliamentary Briefing Papers:

• Wilson W, ‘Briefing on: Evicting Squatters’ (Briefing Paper, June 2017)

Websites and Blogs:

You might also like