The new legislation affecting adverse possession is the Land Registration Act 2002, which revised the scope of adverse possession by holding that it was registration of land that gave legal ownership of it, rather than ‘mere’ possession. The LRA 2002 changed the law in regards to registered land, through paragraph 1(1) of Schedule 6 of the Act which states that
“A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application.”.
The significance of this is that an application for possessory title must be made, of which the registered owner is informed. Thus, the new system means that fewer claims (presumably) will succeed, as unlike under the old system, the title holder of the land will have 65 days to object to the transfer of title. Pending an objection, there is then a further period of two years during which the title holder can evict the squatter. Thus, the new legislation has made it more difficult for a squatter to acquire title, as they must now operate within a scheme of registration. This has given more protection to registered title holders, whilst reducing the rights of the squatter.
Under a Utilitarian theory, land should be put to use, and thus any restriction of utility of land is a negative thing. Bentham views that “If you have allowed so long a time to elapse without claiming your right, it is a proof that you have not known of it’s existence, or that you did not intend to make use of it”. This could be seen to be supportive of the principles behind adverse possession, as it would allow for the transfer of title to the squatter, even none withstanding Bentham’s stated view that “[actual possession] will be always good against every man who has no other title to oppose it”. It seems to be that in advocating some kind of time restriction on recognizing and utilizing a property right, Bentham is suggesting that the right of “a title to property” may be extinguished. 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”. This labeling of the result, under the old legislation, as ‘unjust’ offers some recognition that expectations are being disappointed, of which Bentham would not have approved. Further, though the Grahams had possession of the land for twelve years, during which they utilized it fully, the land was in fact earmarked for development by Pye. Thus, it is not true that the owner did not “intend to make use of [the property]”, which is one of Bentham’s justifications for Ancient bona fide possession.
When the case was heard in the European Court of Human Rights, one of the issues at hand was whether the decision in the domestic courts (that transferred the title to the Grahams through adverse possession) was compatible with A1-P1. A1-P1 guarantees “every...person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest”. This provision of the ECHR is in itself compatible with Bentham's views of property, as Bentham was only opposed to the 'arbitrary' taking away of possessions. Viewing as he did that the “principle object of the Laws” was “the care of security”, then above all else we can see that Bentham was against the disappointment of expectations, which produce “evil”. Thus, if we view A1-P1 as also being fundamentally opposed to this very same injustice, the arbitrary disappointment of expectation, we can conclude that applying A1-P1 to the issue of adverse possession insures against the main objection that Bentham could have had with the doctrine of adverse possession. Hence, since the ECHR found that A1-P1 was both in place with regards to the law of adverse possession, and further that “no violation of Article 1 of Protocol 1 to the convention” had occurred, it seems that the loss of expectation was warranted according to the criteria set by Bentham and already discussed.
The question now is whether the reduced scope of the new legislation infringes on what I have argued was a principle of law that would have been supported by Bentham. As far as the new legislation is concerned, it only effects registered land; the previous criteria still applies to unregistered land. Regarding unregistered land, the legislation in place is adequate and sufficient, providing the 'squatter' with rights to transfer of title in a fairly uncomplicated way. This would ensure that Bentham's ideal of all resources being used to maximum utility is sustained. As for registered land, as seen in the Pye cases, the scope of the old legislation was very wide, and did not provide adequate remedies (in the eyes of the ordinary citizen) for addressing a claim of adverse possession. Though the ECHR ruled in favor of the UK, finding that the legislation as it then stood was in accordance with A1-P1, it is clear from reading judgments from the domestic courts that the decision in favor of the Grahams was viewed with some dissatisfaction. 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.
Supported in “Elements of Land Law” by Gray and Gray
“Elements of Land Law” by Gray and Gray
s.15 of Limitation Act 1980
Jeremy Bentham “Principles of the Civil Code”, Part 2, Chapter 1: Ancient bona fide Possession
JA Pye (Oxford) Ltd and another v. Graham and another [2000] 3 All ER 865 at 867
Jeremy Bentham “Principles of the Civil Code”, Part 2, Chapter 1:Actual Possession
Jeremy Bentham “Principles of the Civil Code” Part 1 – Objects of the Civil Law, Chapter 7: Of Security.
Pye v UK [2007] ECHR 44302/02