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Adverse possession is defined as a wonderful and strange system in which an individual is given the title of land as long as he or she remains with such property for a period of time. An individual can get a valid title to land owned by someone else. Such possession of land title is based on a meeting of certain common law requirements. Typically, an adverse possessor of the land usually controls the land for a particular period of time. Traditionally, the various the estates' owners were to be keen on their lands especially those which they did not use regularly. Such vigilance was primarily because if an individual failed to use his or her land, he or she would lose the title (Schneider 2015 p 399). However such vigilance has been reduced as a result of the introduction of the Land Registration Act 2002.
Intention to Possess
The intention to possess is usually attained when there is proof that the adverse possessor had occupied a piece of land without permission from the true owner.
The physical control of the land must entail three essential elements that is, be without consent, peaceful and open.
Effects of Adverse Possession
The various effects of possession are that the real owners of land will not be in a position to make any claim to recover his or her land. However, the possessor of the property can obtain the title of the land by application under the Transfer of Land Act.
The Human Right to Property
Adverse possession is typically associated with a variety of economic costs and this result in the diminishing utility of the property. Such a utility usually occurs due to less inclination of the true owners of land to use their property by the adverse possession (Lovett 2016 p 180). The above situation happens especially when the true owners fail to be bothered by the presence of trespass on his land. The true owners of land are primarily concerned about the removal of the trespassers from their land instead of risking losing their land to the adverse possessors. This leads to a net loss in the value of land is generated as a result of the fear created by the true owners of property, and this typically leads to a deficiency in the adverse possession.
A critical cost generates from that which is involved in the protection of land against the possibility of loss to the adverse possessors, and this is because true owners spend a lot of money to monitor their property (Lovett 2016 p 617). Typically, assets are used and devoted to a lot of travelling the bounds and metes to find the techniques to protect true owners' lands and this ensure that the trespassers do not extend their period of time on the property. It can, therefore, be concluded that a lot of resources are wasted through the monitoring of the lands instead of putting them into proper use other than that of protecting lands.
Lai (2014 p 559), argues that adverse possession has been considered as being unfair and most of the students in the law school have often opposed it in preference to the system which respects the right of property owners. People believe that the right not to use one's land. It is on the high basis that adverse possession has been considered to be unfair. A variety of poor, innocent and unsuspecting landowners under the adverse possession often lose their land without any wrongdoing. Further, under circumstances in which true owners of land are less vigilant on their property, adverse possession will still be unfair.
Title by Adverse Possession and Basement by Prescription
Adverse possession is a technique in which an individual acquires ownership of the land of another without permission. It is commonly referred to as squatters’ rights. Additionally, it tends to ignore the fact that the adverse possessor does not pay for the land whereas the true owner typically pays for such land and hence an individual who is an adverse possessor is rewarded for taking forcefully another person's property. Adverse possession is also not easy in the sense that an individual who is the true owner of a particular land would be required by a court of law to monitor his land and this is with the intention of retaining such a land (Esmaeili and Grigg 2016 p 100). Adverse possession has been considered as difficult and this especially to the true owner of the property who has to disprove the ownership by the adverse possessor.
On the other hand, the adverse possessor is also faced with a difficult task of having to prove the various elements of adverse possession in a court of law. The adverse possessor cannot provide the legal documents of ownership of the land and in the long run, ends up losing the land which has been of benefit to him or her (Yuille 2014 p 489). Based on the above facts presented it can be concluded that adverse possession is not as easy as most people think. Adverse possession is not also easy since there are various requirements which an individual has to take into account before the owner of a particular land and this makes it a hostile and challenging element.
The hostility nature of the adverse possession is based on three aspects, that is adverse possession is considered as adverse primarily when it cannot be obtained from the right owner’s title. Also, under the circumstance that some right of occupation has been transferred to an adverse possessor by the right owner, such a right owner will have no course of action on the adverse possessor (Cryan 2015 p 145). Further, there are certainly more requirements on adverse possession which are far much beyond the basic requirements which allow an individual to have the legal rights of ownership of property. Such a varying feature has however not been identified by most of the courts as two different and independent. They relate to the mental status, that is awareness and intent of the adverse possessor.
Environmental Critique of Adverse Possession
According to Hafeez-Baig and English (2017 p 300), the other key cost of adverse possession is on the environmental cost. The adverse possessor often destroys the natural lands for their use, and this has negatively impacted the surroundings due to the human encroachment into the forests. Some of the efforts aimed at preserving the environment generally create a conflict of interest especially with those of the traditional owner autonomy whose aim is to possess a variety of land illegally.
In summary, it is concluded that adverse possession is difficult and costly. It is expensive to the right owner of the land regarding protecting his or her land against trespass. On the other hand, it is difficult since both the adverse possessor and true owner have to prove their ownership of a property.
Cryan, M., 2015. ‘Empty Land’? The Politics of Land in Timor?Leste. A new era, pp.141-151.
Esmaeili, H. and Grigg, B., 2016. The Boundaries of Australian Property Law. Cambridge University Press.
Hafeez-Baig, M.J. and English, J., 2017. An inconsistency in the Canadian law of adverse possession? Nelson (City) v Mowatt 2017 SCC 8. Oxford University Commonwealth Law Journal, 17(2), pp.290-300.
Lai, L.W., 2014. Private property rights not to use, earn from or trade land in urban planning and development: A meeting between Coase and Buchanan. Habitat International, 44, pp.555-560.
Lovett, J.A., 2016. Precarious Possession. La. L. Rev., 77, p.617.
Moellendorf, D., 2015. Climate change justice. Philosophy Compass, 10(3), pp.173-186.
Schneider, V., 2015. Property Rebels: Reclaiming Abandoned, Bank-Owned Homes for Community Uses. Am. UL Rev., 65, p.399.
Yuille, L.K., 2014. Toward a Heterodox Property Law and Economics. Tex. A&M L. Rev., 2, p.489.