1

This article recounts the following facts:

  • The past owner occupied the property from the late 1980s
  • The past owner moved out in or about 1996
  • The new owner moved in in 1997
  • The new owner made renovations to the property from then until 2012
  • The new owner unsuccessfully lodged a claim with the Chief Land Registrar
  • The Registrar's decision was overturned by the High Court and the new owner was granted ownership of the property

Under what legal scenarios has this been done & how would one avoid it?

2

As the article suggests, this is called adverse possession. This seems to have occurred because the original owner did not make use of the property, nor monitored for adverse possession.

The reason this method of acquiring title exists is for a number of reasons, including the prudent use of land, as well as being analogous to a limitation on the time period during which a claim can be brought.

It would be reasonably easily avoided if the original owner had made use of the property, or monitored it and took action to eject the adverse possessor prior to their fulfilment of the necessary conditions.

1

A large chunk of the law is related to property rights: the thing is, most people think that the law allows you to keep your property in perpetuity and this is just not so. The common (and civil) law has as a basic tenet inherited from the Romans that property needs to be used in order for the owner to remain the owner. From a social point of view this is fair enough: it is wasteful to have empty houses when people are homeless or fallow fields when people are hungry.

This requirement to use your property applies to personal, intellectual and real property in similar but different ways. For personal property like a car, umbrella or pair of shoes if you abandon (not lose or misplace) them then you cease to have ownership of them and anyone who takes possession of abandoned personal property becomes the owner. For intellectual property like patents or trade names, you have to use them or you lose the rights to them - you cannot sit on a patent for example if you don't commercialize it (copyright is the odd one out here - you don't have to use it to stop others from doing so).

For real property, in a world without strong centralized governments with their ability to keep records, it makes perfect sense that the person who is occupying and working the land is the owner. After all, Britain's history up to 1066 was a succession of waves of different people dispossessing the current occupiers at the point of a sword: quite often by putting that point through the current occupiers. In Europe, this continued into the 19th century.

With the growth of nation states and the concept of the "rule of law" it ceased to be acceptable business practice to kill your neighbors to take their stuff. At that time you needed to be able to prove ownership of the land back to a certain point in time and since it was obviously impossible to prove ownership back to when God created the land (the concept that He didn't being a thing that would get you burned at the stake) there had to be a cutoff date. This cutoff date was set by law: in England this was initially back to the reign of Henry I, latter moved to Henry II and then Richard III. During the reign of Henry VIII it was realized that tying the date to a fixed point in time was a pain so it became a fixed number of years.

The current law in England and Wales is that squatting is a criminal matter and cannot lead to ownership.

However, the previous law applying at the time the squatting stared was the Land Registration Act 2002 which sets down a period of 12 years. However, for registered land, the occupier must apply to be registered as the owner after a minimum of 10 years, the current owner will then be informed and has 2 years to secure an eviction to prevent the transfer of title. This has made it much harder for squatters to acquire land through adverse possession.

Other jurisdictions have other rules of course.

However, this is not why the gentleman in the article failed to retain control of the property in question. He failed because he never was the owner in the first place: the property belonged to his mother who died intestate at which point the legal owner was the administrator of mother's estate, he was merely the beneficial owner. The gentleman concerned did not apply and therefore was not the administrator and as such, did not have standing to bring an action against the squatter.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.