ADVERSE POSSESSION ESSAY (PROPERTY FINAL)

Adverse Possession (AP) is essentially land theft; as a result, the law has come
under fire as stealing is forbidden. Yet, some theories have been put forth to
support the law, notably the theory of relativity of title since it was believed in
the Middle Ages that land could not be purchased but instead had to be possessed,
and the economic concept which holds that since land is a scarce resource, it will
be lost to the the local economy if it is not used. Consequently, it is believed
that the latter notion encourages people to make investments in other people's land
in the hopes that it will one day be theirs.

It is essential to observe that the idea of the basis of fact is identical in both
the old and new laws. regardless of whether the land is registered, the first
challenge is to establish the factual basis, which consists of an actual deed of
possession and the intent of owning it.

Even if the old law or the new legislation is applicable after the factual
foundation has been established becomes important. Any person attempting to
adversely possess unregistered land must first demonstrate 12 years of continuous
possession, regardless of whether they are attempting to accumulate a fee simple
title or a leasehold title. After this period has passed, anyone attempting to gain
a fee simple title will then be considered the title's owner. The original lessee
will continue to be the renter, while those attempting to get a leasehold title
will merely receive absolute possessory rights. The law is nonsensical for this
reason, which explains why adverse owners are constantly at a disadvantage because
the lease can be terminated by common consent between the owner and lessee,
eliminating the unfavourable occupant from the property.

The 1925 Land Registration Act was passed by Parliament. (LRA 1925). According to
the 1925 law, a trust for the ownership of land is created and the tenant is made
the equitable owner of the title if the hostile possessor establishes the factual
basis and maintains 12 years of uninterrupted possession before October 23, 2003.
Being that the state had the duty to maintain the legally binding title under the
registered land regime, it is significant that the state only granted an equitable
title. Therefore, the register's credibility might have been in question if they
had given the hostile possessor the legal title. While the adverse possessor has
the option to acquire the legal title by making an argument in court and succeeding
in getting a court order which legally designates them as the owner. By making the
statute so complex, the state was able to make sure that both the integrity of the
register and the rights of opposing possessors were protected.

In addition, the adverse possessor is required under the LRA 2002 to demonstrate 10
years of continuous possession if the possession term started after the specified
date and 12 years of continuing possession if the possession period started before
October 23, 2003. The historical arguments put forth in support of the law of AP
reflected the ideology of the time. Eventually, however, public perception evolved,
and today it is not justifiable to own someone else's property. The LRA 2002, which
oversees the law of the present, also reflects the principles of this ideology. The
idea behind the previous legal system was that upon the expiration of the time
limit, the adverse possessors would be entitled to obtain either the title or a
propriety right. They simply gain the ability to appeal to the registrar of the HM
Registry under the new law, with no other benefits.

Whenever the petition has been submitted, the registrar will personally review the
case's authenticity and has the power to reject it in case he is not convinced. The
sleeping owner of the title, on the other hand, will be awoken by the registrar
personally if he is contented. He will then write him a letter outlining his three
options: permission (making the adverse possessor the owner), objection (fighting
the case based on the facts), or serving a counter notice. The counter notice is
the highly preferable alternative as it not merely flips the burden of evidence on
the opposing possessor rather the adverse possessor can certainly never be
registered as the owner provided he falls within one of the three exclusions. The
three exclusions are (i) Propriety Estoppel (PE), which should be registered, (ii)
For any other purpose, the hostile possessor should also be registered, and (iii)
The border exemption.

The adverse possessor will need to demonstrate the PE aspects of certainty,

dependence, disadvantage, and bad conscience under the first exception, as well as
further supporting documentation to demonstrate his need for registration. The
adverse possessor would not assert a claim under AP law if he could demonstrate PE,
it ought to be taken into account. Even if a case is successful and PE is
established, the person making the claim still needs to present an additional
evidence supporting the idea that they should be registered. The adverse possessor
is therefore given a double weight by the exception's second limb. Due to the lack
of case law regarding the type of proof that must be presented to the court, it is
necessary to rely on the examples provided by the HM registry, which include the
following: (i) situations in which the owner constructed on the grounds that he
does not actually own the land and the proprietor has willingly allowed them to
continue with their mistake; or (ii) situations in which neighbours have come to
agree into an unofficial sales agreement after which the purchaser settled on the
price and taken control but no further action has been executed.

Additionally, the second instance, which implies that the adverse possessor must be
listed for any other reason, is also ambiguous, and because there is no precedent,
the judicial system have also been unable to explain what kinds of reasons are
acceptable. thereby, dependence will once more be placed on the HM Registry's
examples, which indicate that the adverse possessor will be recorded if (i) he
holds title to the land within the terms of the departed proprietor's will or
inevitability or (ii) where the occupier entered into a contract to purchase the
land and made the purchase price however the legal estate had never been handed
over to them. It is crucial to remember that the tenant would still have a remedy
available to them under the laws of inheritance and contract, accordingly, despite
the fact that the law of AP did not apply.

In addition, the boundary exception, the third exception, is only permitted to be

applied in cases of encroachment of territory and requires the fulfilment of 4
conditions in order to qualify for its protection. (i) They own land that is
adjacent to the property wherein the proposal is made, though the precise location
of the boundary within the two land has not yet been established; (ii) The estate
in question to which the application pertains was created over a year prior to the
application was filed; (iii) The applicant has held the AP for at least 10 years,
terminating at the date of the application; and (iv) During that time, the
applicant had a reasonable belief of the fact that the property was theirs. The
identical argument continues to be accurate in this instance, though, within that
the claimant would file a claim according to the law governing encroachment rather
than the law of AP when a scenario like this were to occur and could be proven.

The LRA 2002 was thoughtfully designed to render the law of AP essentially
outdated, as evidenced by the exceptions and illustrations contained within them.
The new legislation prohibits exceptions for those who might be viewed as the
traditional type of adverse possessors who committed the act knowingly.
Furthermore, because they already have a solution available to them in a separate
body of law, those whose rights the law has paved the way for would never file an
action within the law of AP. Thus, it is possible to contend with proof that the
2002 legislation reflects the viewpoint of the present subsequent generations, and
that considers that trespassing on the property of another is not something that
should be tolerated.
Additionally, if the adverse possessor is unable to qualify for any of the three
exclusions, the legitimate owner of the title will have two years to remove the
occupier and take possession of the property (this ought to be performed without
exposing the owner to unlawful liability). However, if the proprietor of the title
is unable to do so, then the adverse possessor will be forced to sue ability to
evict the person living there, the occupier can reapply and sign up as the
property's owner.

The question of whether a squatter violates the human property rights of the
landowner who has been evicted from their property emerged in the recent case of JA
Pye v. Graham, in which the Court of Appeal (CA) was debating the issue. The CA
acknowledged that it was interfering with the paper owner's right to receive an
order from the court under Article 6 of the ECHR despite ruling contrary to the
stated idea, but it thought the disruption was justified given the time limitations
involved. In its decision in JA Pye v. UK, the ECtHR additionally endorsed the CA's
position. (2008). Additionally, a contemporary theory that supported the opposing
possessors was put forth, according to which the occupiers ought to be qualified to
the protections provided by Article 8 of the ECHR. (right to private life). It was
claimed that the majority of the time, after an adverse possessor has lived on a
piece of property for 10 or 12 years, they have built a home and a family close by.
Furthermore, if they are later taken down after all those years, could that be seen
as a violation of Article 8 of the ECHR, that protects the right to a private life.
until the court provided an adverse ruling in the Malick Case, the issue was
subject to speculation. This strengthens the idea that there is no place for
occupiers in modern society as a whole and it also demonstrates the impossibility
of an idea that benefits a case in their favour because they are not also covered
by the International Treaty.

But when Section 144 of the LASPO was passed and squatting was declared illegal in
relation to residential properties, In the beginning, this led to uncertainty
concerning whether or not the squatter could seek to be recorded as a proprietor or
might go to court to secure a court order, based on the offense at hand. In the
instance of Best v. Chief Land Registrar, it was decided that although the adverse
possessor might have applied, if he did so, he would ultimately legally be
admitting to a crime and could therefore be imprisoned in violation of Section 144
LASPO.

In conclusion, it has been proven that the law of AP is now essentially null and
void because the LRA 2002 was purposefully written in a manner that excludes the
opposing possessors from legal consideration. Additionally, they are not covered by
the ECHR, and in the UK, trespassing is now a crime that involves an imprisonment
under Section 144 of the Land and Property Act.