8/18/2019 Adverse Possession - Summary

1/3

Introduction

• In Rains v Buxton, Fry J derived the word ‘ouster’ from the old law ofadverse possession which means the removal of the true owner frompossession

• Then a question arise, what are the justi cations for squatters to becomeowners?

• 10 ears a!o, the "# courts upheld an adverse possession to a $% ha piece of land

• &t prima facie, it appears to be unfair to the title owner of the land• 'owever, this is all what adverse possession is all about• & squatter can become the title holder of the land if the can successfull

ful l an active possession for a certain period of time• In RB Policies v Butler stated, adverse possession is a polic which favours

the squatters and denies le!al assistance for those who sleep on their ri!hts• LRA 2002 now !overns policies of adverse possession, thus it ma(in! it

di)cult ta(e possession of a re!istered title• This is also applicable for unre!istered land• To a certain e*tent, the ECHR has shown a de!ree of !reat in+uence over

adverse possession

ara 1

• There are $ requirements !overnin! adverse possession-i. /act of possession (Bucking a!s ire CC v "oran#

ii. Intention to possess (Po$ell v "cFarlane#• %la&e LJ provided de nition for the $ elements

i. /actual possession squatter must show he e*clusive has over the

propert 2as thou!h the propert belon!s to him3ii. Intention to possess squatters mind set should re+ect that thepropert is in his name and it e*cludes the owner with the properttitle

• In Pye v 'ra a!, Lor& Bro$ne ilkinson cited Po$ell and upheld theclaim which successfull satis ed both the requirements

• In Bucking a!s ire CC v "oran, the squatter 24oran3 had fenced andinstalled a !ate on the land, thus it showed an absolute intention to possessthe land even thou!h he (new that the council had future plans for that land

• ) e La$ Co!!ission Consultant Pa*er +o 2 -, .Lan& Registration/or t e 2 st Century1 stated that re!istration title wor(s, when a is

re!istered then it is followed b possession• 'owever, in unre!istered land as per % o/ t e Li!itation Act 30stated that squatters must have 1$ ears of possession of the land before thepaper title owner ri!hts are e*tin!uished

• &s seen in )ic 4ourne v eir, % 5 Li!itation Act 30 states that thereis no ri!ht of action b the paper title owner

• The squatters should establish certain elements to have their claimssuccessful

8/18/2019 Adverse Possession - Summary

2/3

ara $

• The birth of LRA 2002 was as a result of stron! political and economicalconsiderations however still maintained the law concernin! adversepossession

• The new law under % 6 LRA 2002 has provided safe!uards a!ainst the titleowner thus Li!itation Act 30 is no lon!er applicable

• % 5 LRA 2002 refers to %c e&ule 6 concernin! adverse possession• The squatter ma appl for re!istration after 10 ears, paper owner will be

noti ed and !iven 56 da s for objection which is a simple veto and 7ero justi cation 2paper owner can sa no without providin! an justi cation3

• There are $ possible outcomes -i. 8o objection b the paper title owner thus squatter will be re!istered

as title ownerii. 9here paper title owner e*ercises veto. Thus, he is !iven $ ears to

evict the squatter, failin! to do so will results to the squatter bein!re!istered as title owner

• %c e&ule 6 Para LRA 2002 sets out % e*ceptions where despite objectionsquatter will still be entitled to re!ister -

i. 9here it will be unfair for the paper title owner to evict the squatter2equit b estoppel3

ii. 9here the squatter for some other reason is entitled to the landiii. 9here the land in application is adjacent to the land that belon!s to

the applicant 2 & is the paper title owner of :lac(acre and : is thepaper title owner of 9hiteacre but : has been sleepin! on his ri!hts,now & wants to brin! 9hiteacre for re!istration. ;an he?

8/18/2019 Adverse Possession - Summary

3/3

Hig Court• &ccordin! to +e$4erger J in 'i!h ;ourt, allow 'ra a!s to adversel enjo

the land, he said that the result did not !o in line with justice and cannot be justi ed practicall . 'e also states that the awareness on Hu!an Rig ts in

the area of adverse possession was illo!ical and inconsistent because the'uman @i!hts &cts see(s to protect the paper title owner and adversepossession protects squatters

Court o/ A**eal• "u!!ery J in ;A& reversed the decision of 'i!h ;ourt, statin! that Braham

did not satisf the requirement of intention because he was willin! to pa ande*tend his license. This shows that he was aware of his occupation onanother’s land

House o/ Lor&s• 'owever, 'AC a!ain reversed the decision in ;A& and allowed Braham to

possess the land adversel• Lor& Bing a! a!reed with Lor& Bro$ne ilkinson in Po$ell and said

that willin!ness to pa did not indicate an absence of intention to possess

ECHR e brou!ht the matter to ECHR simpl because he felt that there was an

interference with his propert ri!hts (Pye 9 anot er v :nite& ;ing&o!# The Brand ;hamber held that there was a violation of Article o/ t e First

Protocol and awarded compensation to e rior to Pye , another ECHR case Beulane Pro*erties v Pal!er held no

lon!er a !ood law