Slade J in Powell v McFarlane explained that the alleged possessor must deal with the land in question as an occupying owner might deal with it in order to show factual possession. For example, the land is a house, the adverse possessor may live in The law felt the need to create distinct forms of property to settle arguments between parties and to determine who owns what. This situation arose with the beginning of conveyance of land where property could go from one hand to another and thus "competing" interests developed between the seller and the buyer or the landlord and the tenant blogger.comted Reading Time: 9 mins Jun 11, · The Idea of the land legislation is to define the power of the owner of the land and prove ownership, in a much cheaper and easier way. The way land was held, and the way property ownership was proven and different types of interest that could be protected in relation to land was complicated
(DOC) Land Law Essay on Proprietary Estoppel | Joel Chua - blogger.com
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Translate PDF, land law essay. Bodden, the Red Light Princess. The question requires a discussion on the impact of the LRA on the doctrine of adverse possession and whether it can be considered an improvement of the previous system governing this area of law. Although not a criminal law doctrine, adverse possession ultimately converts someone who would otherwise qualify as a criminal trespasser into an owner. Some considered this doctrine to be effectively legalising theft land law essay resulted to pressure to change the law of adverse possession. Before jumping into conclusion on whether the LRA improved the previous system governing adverse possession on registered titles, it is first required to understand the working of this doctrine on registered and unregistered land.
Rationale Adverse Possession is defined by N. This doctrine is controversial as it permits squatters to lawfully steal a piece of land for the legal owner. This maxim is seen as encouraging paper owners to utilise their land to the best of their abilities as land is seen as a vital natural resource, if they fail or neglect to do this the a squatter who is prepared to make us of the land has a legal right to take possession from the legal owner. It should be noted that there are different rules for adverse possession depending on whether the land is registered or unregistered.
This was established in the case of Buckinghamshire CC v Moran and was affirmed in the case of Pye v Graham. In relation to possession, land law essay squatter must take possession of the land either by dispossessing the owner or by entering at some time after the owner has discontinued his own possession. Slade J in Powell v McFarlane explained that the alleged possessor must deal with the land in question as an occupying owner might deal with it in order to show factual possession, land law essay. For example, the land is a house, the adverse possessor may live in it; if it is a garden, he may cultivate it, land law essay. In Red House Farms Thornden Ltd v Catchpole, shooting land law essay was held to be sufficient act of possession because that was the only purpose the land could be used.
Besides physically possessing the land, the land law essay must show intent to possess, land law essay. Ltd v Waterloo Real Estate Inc, the adverse possessor must be shown to have the subjective intention to possess the land, and also show by outward conduct that that was his intention. In Hughes v Cook, it was stated that title by adverse possession can be acquired where the possessor occupies the land under a mistaken belief that he is already the owner of the land. Furthermore in Powell v Macfarlane, it was established there is no requirement for the owner to know about the adverse possession, but the possession must be open so that the owner has the opportunity to find out. Besides, the squatter is under no obligation to draw the owners attention to what is happening as in Topplan Estates Ltd v Townley.
Lastly, the possession by the squatter must be adverse which simply means that land law essay squatter must be in factual possession as a trespasser as can be seen in Coclchester v Smith where it was established that a tenant was not an adverse possessor. Where the land is unregistered, the squatter is regarded as land law essay an estate in fee simple from the moment he first takes possession as decided in Leach v Jay. However, until the limitation period of 12 years has been completed, the legal owner can dispossess the squatter through eviction or taking back land law essay. Dispossession can simply be done by the legal owner by moving a boundary fence as seen Zarb v Parry.
Under s. It land law essay held in Tichbourne v Weir, that after completing the limitation period, the squatter holds his own estate in the land under a new title under fee simple. The law on adverse possession has undergone significant reform in light of the LRA Before considering whether the LRA is an improvement, it is first required to look at the LRA Under the LRAtime ran against the registered proprietor in exactly the same way as it did against the owner of the unregistered land, and his right of action against the dispossessor was barred under s. The LRA introduced a completely new system to deal with adverse possession which applies to all claims on adverse possession of registered land. The effect of the LRA is that the old rule cease to apply and time does not run against the registered proprietor, the provision of imposing a statutory trust is also abolished.
Land law essay the Limitation Act no longer applies, no number of years of adverse possession will give the squatter a title to the land. Today under Schedule 6, land law essay, only after 10 years of adverse possession can the squatter apply to be registered with tittle. However, when such an application is made, the registered owner will be notified and has 3 months to object which is most likely the outcome. Under Schedule 6 para 4, if such notice is given to the registered owner and is not objected by the legal owner or other interest holder, the squatter will have to remain in possession for another two years before his title can be registered.
If the application for registration is opposed and consequently rejected, the registered proprietor can recover the property from the squatter. Arguments for and against Many argue that the law on adverse possession before the LRA was unfair to registered proprietors, now after the LRA came into force, some say it is almost impossible for a squatter to successfully claim adverse possession. To really decide land law essay the LRA made any improvement, the effect of the Act has to be evaluated. It is opined that one of the most significant changes brought about is that registered owners will be notified when an application is made by a squatter for title registration.
This indeed seems to be advantageous for registered proprietors compared to before, but, it can be said to be at the expense of the squatter. However, it is arguable the registered owners should be given more protection as they were the ones who acquired the land legally. Notwithstanding, squatters are still able to get their title registered despites opposition to application under 3 specific circumstances set out in Schedule 6 para 5. A squatter will be entitled to be registered if it is unconscionable because of equity by estoppel for the registered proprietor to dispossess land law essay applicant; if the applicant is for some other reason entitled to be registered as the proprietor of the estate; and if the applicant is reasonably mistaken as to the boundaries and for the past 10 years believed that the land belonged to him.
This shows that the LRA does not completely benefit registered owner only, the Act only made it harder for squatters to have a registered title. After all, if a claim of adverse possession is successful, squatters obtains title free of charge while registered owners will not be compensated. Having discussed the operation of this doctrine, it is required to decide if this doctrine if justifiable. Question then arises as to why long use is accepted as sufficient to confer legal right in land, land law essay. This case had used and worn out all domestic remedies which led to it being referred land law essay the ECtHR, it gave English courts the opportunity to examine whether the law on adverse possession was contrary to article 1.
Furthermore, the case of In Beaulane Properties Ltd v Palmer, Deputy Judge Strauss QC held that the effect of s. However he went on to say that the new law of adverse possession founded in the Land Registration Act did not produce a disproportionate result and therefore was not contrary to the principles of the Convention. Hence, it is safe to conclude that the LRA is indeed an improvement as there is no issue of conflict with the ECHR. To sum up, the LRA has brought about some changes to the doctrine of adverse possession which can be considered an improvement. Furthermore, land law essay, since the changes made by the lra to a certain extent gave paper owner more protection compared to before ,it is safe to say that there is better balance of land law essay of squatter and paper owner.
Although some countries like Malaysia has abolished this doctrine while adopting the Torrens system, it is submitted that this doctrine should be preserved. From an economic standpoint, this doctrine is beneficial as it allows land in a country to be fully utilised. From a moral point of view, this doctrine in a way rewards squatters who have contributed to a piece of land instead of letting land go to waste, land law essay. The Future of Adverse Possession in Registered Land in England and Wales By Ifeoma Ekeoma. Whither Adverse Possession in Hong Kong?
A Comparative and Statistical Study By Lei Chen. EJ Marais Acquisitive prescription in view of the property clause unpublished doctoral thesis, Stellenbosch University By Ernst J Marais. Abandonment and Adverse Possession : Assessing the Role of Land Acts By Peter Mnyeshi, land law essay. Download File. About Press Blog People Papers Job Board We're Hiring! Help Center Find new research papers in: Physics Chemistry Biology Health Sciences Ecology Earth Sciences Cognitive Science Mathematics Computer Science Terms Privacy Copyright Academia ©
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Slade J in Powell v McFarlane explained that the alleged possessor must deal with the land in question as an occupying owner might deal with it in order to show factual possession. For example, the land is a house, the adverse possessor may live in Jul 17, · Example essay. Last modified: 3rd Jul The principle of indefeasibility of title has been said that is the foundation of the Torrens system of title. It is not a system of registration of title but a system of title by registration; this prevents acts of fraudulence done Jun 11, · The Idea of the land legislation is to define the power of the owner of the land and prove ownership, in a much cheaper and easier way. The way land was held, and the way property ownership was proven and different types of interest that could be protected in relation to land was complicated
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