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Adverse Possession

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Introduction

Property Do you think Bentham would approve of the reduced scope of adverse possession in the Land Registration Act 2002? In order to consider the question of what Bentham's views towards adverse possession would be, we must first discuss the issue of what, exactly, the term adverse possession covers in today's legal world. The English conception of property is based on the common law theory of 'relativity of title' - that is to say, the person who had the best possession of the land was the one who had the best claim of 'title'1. It is in light of this context that we can best understand adverse possession, which functions on the premise that, over time, titles and rights to property may be extinguished, and new rights transferred to someone with better claim to possession. According to Gray and Gray, adverse possession has the effect of bringing about "an uncompensated shift of economic value to the squatter or interloper"2. In simple terms, adverse possession is the transfer of rights from one title holder to another, after a specified time period has passed, and under certain conditions and requirements. The constituent elements of adverse possession are thus: a certain time period must have elapsed, during which the possession was public and not secret; factual possession of the property (so, the property is put to use); the dispossession of the paper owner. ...read more.

Middle

Bentham justifies this by claiming that the adverse possessor has shown an "attempt and...desire to preserve [possession]". Following this strand of Bentham's argument, there is strong case to be made that he would not be in favor of the reduced scope of the adverse possession legislation. However, there are other considerations. For instance, in order to maximize the utility of a society, security must be guaranteed. Further, expectations, once established, must be protected. As stated by Bentham, "Arbitrarily to take away from him who possesses, in order to give to him who possesses not, would be to create a loss upon one side and a gain upon the other....such [an] act...would spread alarm among all proprietors, by attacking their security". The implication of this is that adverse possession is not so uniformly supported by Bentham as could have been previously implied - the principle of maintaining expectations must still be held. In Pye v UK, though the decision was ultimately in favor of the UK, many of the judgments expressed surprise at the legislation as it then stood. Lord Bingham of Cornhill stated that it was "difficult to see any justification for a legal rule which compels such an apparently unjust result and even harder to see why the party gaining title should not be required to pay some compensation at least"6. ...read more.

Conclusion

So, it could be argued that the new legislation would have been approved by Bentham as it addressed the concerns of the people, who viewed the old legislation as infringing on their expectations. In conclusion, though the old legislation was perfectly in keeping with Bentham's principles of property and security, the reduced scope of the new legislation seems to maintain the most important aspect of adverse possession (that is to say, with regards to unregistered land), whilst resolving some of the issues of disappointment of expectations where the old legislation was lacking. 1Supported in "Elements of Land Law" by Gray and Gray 2"Elements of Land Law" by Gray and Gray 3s. 75 of the LRA 1925 4s.15 of Limitation Act 1980 5 Jeremy Bentham "Principles of the Civil Code", Part 2, Chapter 1: Ancient bona fide Possession 6 JA Pye (Oxford) Ltd and another v. Graham and another [2000] 3 All ER 865 at 867 7Jeremy Bentham "Principles of the Civil Code", Part 2, Chapter 1:Actual Possession 8Jeremy Bentham "Principles of the Civil Code" Part 1 - Objects of the Civil Law, Chapter 7: Of Security. 9Ibid. 10Pye v UK [2007] ECHR 44302/02 ?? ?? ?? ?? ...read more.

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