This topic considers what happens when someone takes possession of land without the consent of the person who is entitled to possession by occupying it adversely or ‘squatting’ for a period of time. Whilst adverse possession has led to some controversial claims for the title/registered proprietorship of land, we will see that claims are more common in cases where a property includes some ‘extra’ land (e.g. an area of garden) not included in the title deeds/registered title. This is often only discovered when the property is being sold and the buyer is asked to compare the title plan with the actual physical property being purchased. Adverse possession has proved to be a controversial topic and we will explore the initial rationale behind allowing such claims, the evolution of the law culminating in the LRA 2002, and the ways in which adverse possession continues to shape land ownership and usage in England and Wales.
1.2 Policy introduction
Adverse possession in England and Wales has prompted considerable debate resulting in a significant change to the law under the LRA 2002 (see section 3). This area of law involves a number of difficult broader policy questions relating to land ownership rights and responsibilities. They include for example:
Whether there should be responsibilities as well as rights that flow from ownership of land?
Successful adverse possession claims require long uninterrupted periods of possession by the ‘squatter’.
This generally means that the adversely possessed property is not being put to any use by the paper owner/registered proprietor.
Should responsibility for land usage be a matter for individual judgement or the law?
To what extent should the societal demand/need for housing be balanced against landowners’ rights to leave land/properties unused/empty?
Where land is not being put to productive use, is adverse possession really the best/most appropriate mechanism to address this?
Should the criminal law be used to prevent squatting and protect registered proprietors?
More broadly, the topic involves interesting questions relating to what we understand ownership to be and what we think associated rights should do. For example:
Do/should they protect the haves from the have-nots, or vice versa?
Do/should they maintain existing class structures or serve to further equality?
Do/should they entail an entitlement to own a minimum of property essential for life, or does it merely protect existing entitlements against arbitrary interference?