Understanding Adverse Possession in English Law

Adverse Possession has long been a quirk of English law whereby the doctrine is based on the principle that, regardless of formal or documentary records of ownership, uncontested long use of land must ultimately confer good title upon the adverse possessor. The doctrine has been firmly entrenched in common law, and only recently have there been questions as to its correctness.

Justifications for Adverse Possession: Despite many arguments against the doctrine, adverse possession can be justified. In legal terms, adverse possession is an expression of a policy that denies legal assistance to those who sleep on their rights. It also ensures that there is an end to disputes concerning land. Additionally, since land is a finite resource, adverse possession can help to ensure the full utilization of land in the country. As such, we see that the doctrine is not entirely without merit. However, for many, the disadvantages of the doctrine far outweigh the benefits, and this has resulted in numerous calls for reform throughout the years, culminating in the LRA 2002. Neuberger J in Pye v Graham gives his reasons why adverse possession is no longer acceptable in a modern legal system. He states that the doctrine is both illogical and disproportionate. It is illogical because the only reason the owner can be said to have sat on his rights is because of the existence of the 12-year limitation period in the first place; if it didn't exist, the owner could claim for his land at any time. It is disproportionate because it seems draconian to the owner and a windfall to the squatter that, just because the owner has taken no steps to evict the squatter for 12 years, the owner should lose the land with no compensation whatsoever. Also, it must be noted that the rules on adverse possession were developed at a time when there was no system of registration in place, and title was relative. It has no place in a system where title is absolute and dependent on registration. The procedural issues with the doctrine undermine the mirror principle, one of the underlying principles of the system of registration. Apart from the substantive arguments against the doctrine, there were procedural arguments as well. There were no notice requirements before adverse possession occurs. The adverse possessor may quietly obtain the land upon the passing of 12 years, and the actual owner has no remedy against the adverse possessor. Section 75 of the LRA 1925 imposes a constructive trust on the land with the adverse possessor as the beneficiary. This will not be reflected on the register, thus a third-party purchaser will have no way of knowing this. Furthermore, section 70(1)(f) of the LRA 1925 also provides...