ADVERSE POSSESSION OF LAND—MORALITY AND MOTIVE 1
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01272.x |
| Date | 01 May 1970 |
| Published date | 01 May 1970 |
| Author | Michael J. Goodman |
ADVERSE POSSESSIOlN
OF
LAND-
MORALITY AND MOTIVE
’
THE
doctrine permitting acquisition
of
title to land by adverse
possession has been said to be
“
an ailing concept.” Recent cases
have tended to confine its operation.* Now is probably the time to
ask starkly two questions:
(1)
Has
“
squatter’s title
”
to land,
with its undertones of
“
land-stealing,” any place in a civilised
society, particularly a society committed ultimately to universal
state registration of title to land?
(2)
If,
as will be submitted,
“
squatter’s title
”
can still perform a useful, indeed a necessary,
function, ought it to require that.the
“
squatter
”
should have a
particular intention
or
motive before allowing him to acquire title
?
This article attempts to answer these two questions.
1.
THE
MORALITY
OF
ADVERSE
POSSESSION
What, then, is the proper function of acquisition of title by adverse
possession
for
the statutory period?
Roman
law recognised the
concept
in
the forms
of
usucapio
and
longi
temporis praescriptio.
However, there were normally required bona fides and
justa
causa
in additi~n.~
In
English law, the concept was an integral part
of
the doctrine
of
ownership by seisin and, even today,
our
system of
land registration allows
for
the acquisition
of
squatter’s title to
registered land.g
An
authoritative view is that
of
Curtis and Ruoff
when they say
‘
:
1
Parts of this article are based
on
the author’s
Ph.D.
thesis
on
Adverse posses-
sion
of
land in the
law
of
Limitation
of
Actions
and are published
by
kind
permission of the Manchester University Librarian.
2
J.
C. W. Wylie, “Adverse Possession:
An
Ailing Concept?”
(1965) 16
N.I.L.Q.
467.
8
See,
e.g.,
Fairweather
v.
St.
Marylebone
Property
Co.
Ltd.
[1963]
A.C.
510
and
Tickner
v.
Buzzacott
[1965]
Ch.
426,
rendering precarious
a
leasehold
title acquired by adverse possession;
Geo.
Wimpey
d
Co.
Ltd.
v.
Sohn
[1967]
Ch.
487
and
Hughes
v.
Griffin
[1969] 1
W.L.R.
23,
refusing to recognise long
possession
88
adverse.
4
Usually
12
yeam-Limitation Act
1939,
8.
&though longer periods are re-
quired
to
acquire land belonging
to
the Crown, certain corporations sole,
owners of future interests, and
persons
under
s
disability:
1939
Act,
BB.
4,
6
and
26.
5
These requirements are discussed
injra
p.
283.
6
It is noteworthy that the original prohibition of acquisition of title to registered
land by adverse possession (Land Transfer Act
1875,
8.
21,
of.
Land Transfer
Act
1897,
8.
12)
has been superseded by allowing such acquisition snd
giving
the rights, inchoate or perfected, of a squatter
on
registered land the status
at
an
‘‘
overriding interest,”
80
that they prevail against a purchaser, even with
no
notice of them, an
is
indeed the case with unregistered Isnd-ee
now
Land
Registration Act
1925,
88.
70 (1)
(f)
and
75.
Curtis and Ruoff,
Registered Conoeyancing
(2nd
ed.,
1965),
p.
121.
281
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