ABSTRACT
Adverse possession – or squatting – is a doctrine that truly reflects the feudal origins of English land law and the common law systems based upon it. Behind the ability of a trespasser to actually acquire ‘ownership’ of land that on paper belongs to somebody else is the concept that, in fact, owners only own ‘estates’ or titles in the land, not the land itself. Thus, it is perfectly possible for some other person to gain a better title without any formal transfer of ‘ownership’. The very idea of adverse possession is based upon relativity of title, not absolute ownership of land. It is now trite law that in England there is no equivalent of the civil law concept of dominium and, in practice, this means that one person’s title to land is only as good as the absence of a person with a better title. This traditional justification for adverse possession is, however, rapidly becoming an anachronism. Not only were doubts raised on human rights grounds (Beaulane Properties v Palmer (2005)) – although in Ofulue v Bossert (2008) the Court of Appeal subsequently confirmed that principles of adverse possession were, as a matter of principle, compliant with human rights law – but also, most noticeably, with the coming into force of the Land Registration Act 2002 the philosophy of a guarantee of title has superseded the justifications behind the rules on limitations. Under this Act, registration as a proprietor is, even with the continued ability to seek rectification of the register, closer to an absolute guarantee of title than has formerly been known in the law of England and Wales. As a consequence, under the registered title scheme, while adverse possession is not impossible to establish, it is, nevertheless, often exceedingly difficult.
