ABSTRACT

The law of adverse possession is one of the more remarkable features of English law. It is, in effect, a set of rules that offers an opportunity 1 to a mere trespasser actually to acquire a better title to land than the person who ‘legally’ owns it and to whom it was once formally conveyed with all of the solemnity of a deed or registered disposition. In fact, adverse possession is rooted in the feudal origins of English land law and it is the most obvious modern example of the ‘relativity of title’ that once lay at the heart of how we conceived of land ownership. Given that in English law no person may own land itself – only an ‘estate’ in it – it is in theory perfectly possible for someone other than the ‘paper’ or ‘real’ owner to gain a better title without any formal transfer of ‘ownership’. A person’s title to land, including the paper owner’s, is, as a matter of theory, only as good as the absence of a person with a better title. Title is thus relative – it is either relatively better or relatively worse than that of another person. However, as we shall see, this explanation of adverse possession is fast becoming out of date. Although it remains the case under the LRA 2002 that a person is still registered with an estate – not with the land itself 2 – registration as proprietor under the 2002 Act is a much more robust guarantee of ownership than anything that has gone before. As we have seen in Chapter 2, there is still room for alteration of the register, and adverse possession of a registered title is not impossible, but registration of a person as proprietor under the LRA 2002 is the closest thing in over 900 years to absolute ownership of land. 3 This has led to a radical overhaul of the law of adverse possession as it applies to registered land and this must be remembered in the ensuing discussion. Similarly, the introduction of a general criminal offence in relation to squatting in a residential building may have an impact on the ‘squatter’s’ ability to claim title as it may result in fewer ‘squatters’ 4 possessing the land for the requisite period of time. 5 Both of these matters are considered more fully below.