Adverse Possession

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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'. 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”. 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. Until the Land Registration Act of 2002, adverse possession was governed by section 15 of the Limitation Act 1980 and the Land Registration Act 1925. The LRA 1925 held that after 12 years of adverse possession the land in question would be deemed to have been held “in trust for the squatter”. That is to say, the 'squatter' is held to have been the beneficial owner. The LRA 1925 worked in conjunction with the Limitation Act 1980 which held that an action could not be brought forward after a certain amount of time. That is to say, in relation to adverse possession, a person could not recover their land twelve years after continuous adverse possession.

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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 ...

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