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Property Rules In UK Add in library

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Question:

1. Research, analyse and discuss in an informed manner selective aspects of Land Law.

 

 

Answer:

Adverse Possession

The doctrine of adverse possession states that when someone occupies the land that belongs to someone else without taking his permission and such person continues to live for at least 10 to 12 years then under such conditions the land becomes theirs. This doctrine is governed by rules of property laws in the country. This doctrine allows another person to possess the real property of another without the payment of any compensation. This is because the property is held in a manner that conflicts with the right of the owners for a specified time span. For instance the rights of squatters fall under the type of adverse possession.

In the case of JA Pye (Oxford) Ltd v Graham, the House of Lords defined ‘adverse possession’ under the Land Registration Act 1925. Lord Browne-Wilkinson in this case stated that firstly factual possession means that there should be physical possession of the property. Additionally it was also held that even though the word ‘adverse’ reflects force, the squatters should never use aggressive methods towards the paper owner of the property.

The Rationale behind Adverse Possession

This doctrine was developed hundreds of years ago when most of the land was unregistered and the only method to establish legal ownership was to inspect the deed and transfer the property to the current owner. This rationale was dismissed when the comprehensive land registration rules were established that contained all the details of the ownership and boundaries. These details were kept with the Land Registry and the register was open for the inspection of the public.

Issue

The primary issue in this case was whether the squatter who intends to purchase the house from the fee simple owner at a reduced price is entitled to purchase that property and what are the rights of the students as a squatter in that property.

Facts of the case

In the given case, four university students had rented a house in 2012 to study in UK. As a result of some complaints from residents, the University of East Westland disallowed their students from living there. With no options left the started living as squatters in the large Edwardian house. Moreover, the squatters living there were also committing nuisance which was a matter of concern for the neighbors. Later a squatter without informing the students offered to purchase the house from the fee simple owner at a reduced price.

 

Property rules in UK and the application of the law in the given case

Adverse possession has been a significant part of the property law in England and Wales. Throughout years it has undergone a number of changes with regard to legislations as well as case laws.

In the case of Powell v McFarlane, Justice Slade had stated a similar fact as Lord Browne-Wilkinson in the Pye case, that factual possession means physical possession. This possession is single and exclusive though it can be on behalf of several people jointly. It was held in the case that there must be evidence of the intention to possess and the squatter who claims must exclude all the others present in the land along with the owner.

Again in the case of Mount Caramel Investments Ltd v. Peter Thurlow Ltd., it was held that when the adverse possession has been for different people, the consecutive periods need to be added together. In the case of Bucks County Council v. Moran the court again stressed on the intention to possess and held that the squatters have to prove that they had physical control over the property. Chief Justice Cockburn in the case of Seddon v. Smith had stated that essential evidence in adverse possession was enclosure. In the case of BP Properties v. Buckler the court held that in cases of adverse possession the time will stop running for the squatters once they get lawful possession of the property.

With regard to human rights issue the rights of squatters were raised in number of cases. In the case of Ofulue v. Bossert the court relied on the decision of the European Court of Human Rights in the case of Pye v United Kingdom and held that the law of adverse possession does not breach Article 1, Protocol 1 of Human Rights. Further in the case of Lodge v. Wakefield City Council  the court held that even when there is a mistaken belief of ownership of legal estate then adverse possession may be established.

Before the Land Registration Act 2002 came into force the land owner could simply lose title without being aware of it.

According to the Land Registration Act of 2002 as given under the Schedule 6, paragraphs 1 to 5, when the adverse possessor has lived for ten years he would be entitled to apply to the land registrar in order to become the new registered owner of the property. Under such circumstances the registrar would contact the registered title holder and send notification of the application. When it is seen that no proceedings were launched for two years to eject this adverse possessor then the registrar would transfer the title. These rules apply for registered land.

However, there are a number of restrictions before an application is made based on adverse possession. Firstly the registered proprietor must not be an enemy or from enemy state or should not suffer any mental disability, or is a defendant in any proceedings regarding a right to the possession of land or the estate was held on trust.

Applying these above rules and case laws, the given case may be analyzed. Firstly, the squatters were in possession of the Edwardian house for a period of seven years. According to the English law given in the legislations and case laws in order to claim for the ownership rights it is essential that the squatter has held factual possession of the property for a period of ten years. Since these squatters have been in possession for seven years they cannot claim adverse possession on the property. Hence even the four students cannot claim adverse possession since they were squatters for a very less time period. Further as already stated in the cases when different people have occupied the property all the consecutive period would be considered while calculating the total time period of possession. Here the total time period is seven years but not ten years.

Secondly since according to the case laws the law of adverse possession does not breach the human rights law and hence the owner who is suffering from illness cannot claim for such rights under the law.

Also a new law was introduced in 2012. According to section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, any individual who enters any residential building as squatters may be punished with six months imprisonment and £5,000 fine or both.

Conclusion

Relying on the above facts and regulations in the country and the given circumstances in the case, it can be construed that the four students are in the wrong side of the law. Since they have been living as squatters since 2013 for barely a year, the laws relating to adverse possession would not be of much helpful to them and in accordance to the new criminal law on squatting they would also have the fear to be jailed for squatting.

 

References

Bouckaert B, Property Law And Economics (Edward Elgar 2010)

Bray J, Unlocking Land Law

Epstein R, Economics Of Property Law (Edward Elgar 2007)

Katz L, 'The Moral Paradox Of Adverse Possession: Sovereignty And Revolution In Property Law' (2010) 55 McGill Law Journal

McFarlane B, Hopkins N and Nield S, Land Law (Oxford University Press 2009)

Sexton R and Bogusz B, Complete Land Law (Oxford Univ Press 2009)

Smith R, Introduction To Land Law (Pearson Longman 2010)

Swerling L, 'The Land Registration Act 2002 And Adverse Possession' (2003) 9 Trusts & Trustees

BP Properties v Buckler (1987) 55 P & CR

Bucks County Council v Moran (1990) 86 LGR

JA Pye (Oxford) Ltd v Graham [2003] AC

Lodge v Wakefield City Council (1995) 38 EG

Mount Caramel Investments Ltd v Peter Thurlow Ltd [1988] P & CR

Ofulue v Bossert (2008) EWCA Civ

Powell v McFarlane (1977) 38 P & CR

Pye v United Kingdom (2008) 46 EHRR

Seddon v Smith (1877) 36 LT

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