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Adverse possession enables a person who does not have legal title to a property to acquire a legal title to that property without the consent of the legal owner in certain circumstances. Discuss whether the doctrine of adverse possession should be part of Australian law.

The Doctrine of Adverse Possession

Adverse possession is the mode of acquiring title to land where a person who was like a squatter takes the legal ownership from the person who was the legal owner. Adverse possession has been seen as controversial practice where legal systems provide an avenue for the extinguishment of property rights from the right owner which may also affect other rights. This paper examines adverse possession in Australia and the requirements for adverse possession. While undertaking this examination, this paper will discuss issues related to adverse possession in Australia. It will also provide a general definition of adverse possession and examine the justifications whether the doctrine of adverse possession should be part of Australian law. Finally, the paper will draw a conclusion adverse possession give several important remarks regarding.

Adverse possession is a combination of civil and common law that was incorporated in the Australian land law system. This doctrine was inherited from the English law system, and it allows an occupant of a land or a possessor who is not the legal owner to acquire legal ownership and title to that land. In this legal application, the occupant who is not the owner does not pay or compensate the legal owner for the dispossession unless the court provides such direction. However, both the common law and civil which is adopted in the Australian legal system requires the applicant to provide a number of requirements. These requirements provide the evidential proof of possession. The possession has to be in real sense that the legal owner can be liable of trespass in case he enters the land. Secondly, the occupant has to demonstrate to the court that he/she had been in possession of the land and he/she has continuously used, and developed it without the interruption of the legal owner. The requirement proves to the court that the occupier had enough reasons to believe that he owns the land. In this regard, some interception from the owner with activities such as payments of rents, development, and other occasions would refute the claim. Thirdly, the occupier must demonstrate that there was hostile occupation in the legal owner’s interests. Therefore, permission to stay the legal owner would not be considered as hostile. Fourthly, the person bringing a claim of adverse possession must provide the proof of exclusive possession. The claim would fail if he shared the property with the legal owner. Fifth, the possession and occupation must have been open and notorious. The purpose of this requirements is to guarantee that the occupier was not occupying the land undetected or secretively. Lastly, there must be a time limitation as stipulated in the statutes of limitation. 

Adverse Possession Requirements

To understand the various justification of adverse possession, this paper would provide a deeper approach of examining basic concepts such as ownership and possession. While adverse possession has no effect on the national market, it does affect the right owner. In a different view, adverse possession is like transforming the wrongdoing of trespassing into another person’s land into ownership or transforming a trespasser into an owner. Adverse possession is a doctrine that that comes out of a combination of both the civil and common law. Despite being grounded in both law systems, its justification mostly comes from common law, and the debate on its justification has been on for centuries.

One of the famous people who have provided a justification of adverse possession were Judge Holmes who compared a possessor to a tree that has grown in a cleft of a rock, with the penetration of the roots shaping that rock. The judge said that displacing the tree means cutting its roots which is ending its life. Similarly, displacing a man who has shaped the surroundings would be ending his life.   On the other hand, William has seen adverse possession as disproportionate punishment. Kartz thinks that possessors who obtain title to land through adverse possession are thieves. Burn on his part suggests that adverse possession as a doctrine should be removed from Australian law as he argues the various justification provided are immaterial. On his part, Teo states thinks that adverse possession should not even be part of Australian law as it operates in bad faith and it facilitates illegal possession.  

There are mainly three classes for the justifications of adverse possession.  The first class deals with original owner’s slothfulness and limitation of actions. That is, the law shows that the original owner was a less useful gatekeeper when compared to his counterpart adverse possessor. The second class shows a necessity to reward adverse possessor for being a diligent possessor who for a long time has been building connection with the property, and taking it from him would cause a painful break. The last class deals with broad scope of effects such as loss of records, proof of evidence, correction of errors of incomplete records, and alignment of government’s land records for the purpose of conveyancing. Within these classes it’s where other the following justifications sprout out.

The fundamental reasoning in this justification is that the true owner has been silent for a long time, and the possessor has been holding it for a very long time to the extent that the true owner has ceased to be acknowledged as the owner through limitations of actions. This rationale is derived from the ruling of Lord Plumer in the case of Cholmondeley (Marquis) v Lord Clinton. The judge stated that it would be unfair to take the land away from the person who has been for a long time been allowed to think that he owned that land. On the other hand, a few others have criticized this justification claiming that it favors even those squatters who are in bad faith particularly those who knows the land owner, and all that they need is to defeat the true owner’s evidence in a court of law. In the same reasoning, Teo states that adverse possession was reasonable only in earlier days when squatters would stay in a land for years without seeing the title holder. However, Teo states that the new centralized land registration systems allows squatters to go and check the title holder and ask for legal transfer. 

Reexamination of Adverse Possession

The second justification of adverse possession is that it makes conveyancing easy. One compelling support for this justification is that it offers the best solution even to the title holders whose previous registrations were incomplete, erroneous, or hand been holding unregistered land.An illustration of this is a situation where a seller (A) sold the land to purchaser (B). However, other than completing the entire transfer, B only moved to the land part the paper work was not completed. In this situation, adverse possession will allow B to possess the land after living on for the stipulated duration in the limitation of actions act. The fact that legal security requires evidential prove in judicial process makes it hard to get such security when evidence is lost. Therefore, as more time passes, the destruction or loss of evidence becomes immense. Adverse possession becomes the best process in proving ownership in a court of law. For instance, finding proof of ownership in unregistered land requires going through sets of documentary evidence. To find proof in this situations, adverse possession is said to facilitate investigation of titles thus becoming the most valid justification. In registered, adverse possession can only be used in the settlement of boundary disputes. William further argues that adverse possession should be considered a process that benefits the society. He argues that adverse possession ascertains that there is security to those who have been developing land whose owners have left it unproductive.

This justification originates from moral principles which were explained by Judge Holmes as discussed above. Though the reliance justification has been criticized for failure serve both parties and concentrating on one side, the justification reasons in the personhood theory of property through prevention of possible eruption of a violence when the possessor who has developed the property for years loses all the costs to the title owner who has been sleeping. In the same reasoning, Stake states that reliance justification prevents the apparent psychological effects where the losing a tangible and physical asset could be more painful to the possessor than loosing financial asset on the part of the owner who has been sleeping on his rights. Burn explains this concept by quoting the theory of person hood which suggest the maintenance of the status quo. The possessor receives his self-development which is a reward of to his useful labor.

There are different economical justifications. Among them, adverse possession is said to reduce costs involved in searching for the decayed evidence. Therefore, other than the court or parties searching or struggling to maintain records, bringing an evidence of adverse possession in a suit can resolve a litigation whether the evidence was brought by the possessor or a true owner in the case where a landgrabber is asserting that he owns the land. Secondly, it is one method of law for punishing those people who sit on their rights and rewarding the possessor who has been promoting development through ensuring productivity of the idle land. Therefore, owners can ensure economic productiveness of their property by maximizing the property value. Thirdly, adverse possession minimizes costs associated with transfer of titles.  As transfer of titles involve investigating previous records of how the land has been changing between owners, adverse possession saves potential purchasers these costs as they would not have to dig further how the current possessor acquired the title.

Justifications for Adverse Possession

There are still critics of this justification with one being that not the possessors had been using the land does not guarantee that it was the best way to increase productive. Therefore, it sometimes becomes evident that the land was better when unused than when it was used by the possessor. Another argument given by Burn is that there should be other ways a government can ensure that the idle land is made productive instead of passing it to someone else. 

Adverse possession is also justified through moral reasoning. The application of this justification is based on the concept of connection. The advocates of this rationale look at the relation created by the owner with the possessor which brings the issue of estoppel. The scholars in this camp argue that the conducts of the owner(silence) communicates to the possessor that both parties own the land together. The owner’s behavior causes the possessor to think that he has property rights which can be justified by the duration the owner has away or inactive. There is a need to note that it is not the silence or inactivity for the set duration that distinguishes the ownership of the legal owner, but negligence to undertake the moral duty of protecting the property from invasion by the intruders. Therefore, while still relying on this justification, there is a need for the possessor to at least show the court that there was a positive duty that was neglected by the owner when he stayed in silence or inactiveness which created an estoppel.

Moral justification is also found in the theory of utilitarianism. This theory links ownership with security from the society, and happiness of general community. Taking the land away from people who has claimed it for years and then giving it to someone who had left it for great number of years could cause some violence. Another point within moral justification is the fact that a holder serves better for economic efficiency as he takes the abandoned property, restores its value, and becomes a better contributor to economic growth than the owner who left it bare. The critics of this moral justification find no ethics and compare squatters with landgrabbers and thieves. However, in a situation of bad faith, adverse possession could be unfair to innocent land owners.

This justification mainly deals with someone’s connection to the property, and this connection is through long use and control of that land. This rationale was supported by two theories. One of these theories is the experimental theory which developed by Judge Holmes as explained by Bevan. Holmes reasoned that the psychological attachment created by long use and control of property is stronger than any connection that had been recorded before. The connection comes as a nature of human’s mind that when someone uses a property and enjoys for a long period, that property becomes deep rooted in his being and should not be torn.

A further explanation is linked to the theory of   loss-aversion. The fundamental position of this theory is that the negative effects of surrendering something is higher than that of obtaining it. This justification is explained though "endowment effects" by Holmes. These findings are further elaborated that psychological attachment is stronger in a person who has been using and developing the property than in a person who has been away or silent. The psychological justification places its interest in saving the person who will suffer big loss when the connection which has been extremely entrenched in the land than the person who has not been more involved in the use.


This paper concludes that although adverse possession has its critics, it serves best to protect the interests of possessors whose loss of that property can have negative effects to the person, the society, and the nation in general. The various critics to justifications of adverse possession should be considered immaterial as they only serve to protect the interest of the owner who does not also benefit from the economic use of that land. Therefore, it would be better when the land is put in to the hands of a possessor who can develop it thus contributing to national economy. In addition, the law serves to protect the interests of the majority while the minority are advised to obey it as it is the right thing to do.

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