Taxonomies of Squatting: Unlawful Occupation in a New Legal Order
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00721.x |
| Date | 01 November 2008 |
| Author | Neil Cobb,Lorna Fox O'Mahony |
| Published date | 01 November 2008 |
Taxonomies of Squatting: Unlawful Occupation in
aNewLegalOrder
Lorna Fox O’Mahony and Neil Cobb
n
Legal responses to the activity of ‘squatting’ include criminal justice, civil actions, property law
and housing policy.Some legal analyses of unauthorised occupation focus on the act of squatting,
others on the squatter’s claim totitle through adverse possession.This paper explores recent devel-
opments in the law of adverse possession which have been shaped by particular discursive con-
structions of both squatters and dispossessed landowners.It develops a‘taxonomyof squatting’by
mapping the positions adopted by the Law Commission, the legislature and various domestic
and European courts, in respect of moralissues thrown up by the doctrine of adverse possession,
including the distinction between good faith and bad faith squatting, the landowner’s duty of
stewardship,and the question of compensation. By unpacking the circumstances in which squat-
ting occurs, the paperdevelops a series of matrices to classify legal responses to unlawful occupa-
tion and to facilitate a more systematic and coherent understanding of law’s responses to
squatting.
INTRODUCTION
The erosion of traditional principles of adverse possession in the Land Registra-
tion Act2002, together withthe decision of the Grand Chamberof the European
Court of Human Rights in Pye vThe United Kingdom
1
^ articulating important
claims about the legitimacyof title acquisition by adverse possession in the con-
text of Article 1 of the First Protocol to the European Convention on Human
Rights ^ have embedded a new legal order for the regulation of title by adverse
possession, underpinned by a set of taken-for-granted moral perspectives which
re£ect a wholly negative view of the activity of squatting.
2
These changes have
taken place against a backdrop of rising moral outrage towards squatters who
secure title to land in this way.
3
Furthermore, while academic analyses in the US
continue to consider the justi¢cations for adverse possession,
4
and the traditional
doctrine of adverse possessioncontinues to subsist across a range of ECHR juris-
n
Durham University.Th is paper was ¢rst presented at the Modern Law Review seminar, Comparative,
Transnational and EmergingIssues in PropertyLaw, jointly hosted by Durham University and the Centre
on Property, Citizenship and Social Entreprenuerism, Syracuse University, 18^19 July 2007. We are
grateful to the seminar participantsa ndto the anonymous referees for their helpfulcomments.
1 Application no 44302/02; available online at http://cmiskp.echr.coe.int/tkp197/view.asp?
action= html&documentId=822955&portal=hbkm&source =externalbydocnumber&table=
F69A27FD8FB86142BF01C1166DEA398649(last vi sited12 June 2008).
2 SeeN. Cobb and L. Fox,‘Living Outside the System:The (Im)morality of Urban Squattingafter
the Land RegistrationAct 2002’ (2007) 27 Leg Studs 236.
3 SeeCobb and Fox, ibid, footnote 4.
4 See, for example, L. A. Fennell,‘E⁄cient Trespass: The Case for Bad Faith Adverse Possession’
(2006) 100 Northwestern University Law Review 1037;E.M.Pen
alver and S. K. Katyal, ‘Property
Outlaws’(2006) 155 Universityof Pennsylvania Law Review 10 95.
r2008 The Authors.Journal Compilation r20 08The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(6) 878^911
dictions, as well as in manyTorrens-style land registration systems,
5
property law
scholarsi n England andWales have indicatedthat, in the contextof the prevailing
approach to title registration: ‘. . . it has come to seem increasingly strange that
adverse possession should have any relevance in a regime where the formal regis-
tration of title i s supposed to provide a de¢nitive record of estate ownership.’
6
The courts, in a similar vein, have described the (pre-2002) operation of
adverse possession as ‘apparently unjust’,
7
with Neuberger J recently observing
that it was:‘. . . hard to see whatprinciple of justice entitles the trespasserto acquire
the land for nothing from the owner simply because he has been permitted to
remain there for 12 years’; a conclusion which ‘.. . does not accord with justice,
and cannot be justi¢ed by practical considerations, [is] draconian to the owner
and a windfall for the squatter’.
8
Furthermore, the Law Commission’s re-designa-
tion of adverse possession as‘theft of land’,
9
as part of its work on land registration,
has copper-fastened the portrayal of the squatter’s actions as wrong (tantamount
to criminal activity), with the dispossessed landowner as the ‘victim’ of the piece.
This article re-considers the way in which the moral responsibility of both
squatter and landowner has been cast in this new legal order. The prevailing
approach to adverse possession in England and Wales presents a simpli¢ed,
‘black-and-white’ picture of unlawful occupation, treating as essential the land-
owner as ‘in the right’ and the squatter as acting wrongfully. In this article, we
argue instead that the activity of unlawful occupation raises a series of complex
questions relating to both the use of land and the regulation of title, which can
usefully be considered by unpacking the variety of socio-legal constructions of
squatter and landowner, and by considering the activity of unlawful occupation
in relation to use of land as well as (registered) title. In doing so, we have found it
helpful to consider the legal construction of the squatter and the landowner
through a range of legal lenses: crime; housing; limitation; property; and human
rights; as there is some di¡erence ofapproach across these contexts, forexample, as
to whether the primary concern of the legal response is with the act (or conse-
quences) of squatting itself, the acquisition of title through adverse possession,
or a combination.The purpose of this analysis is to develop a‘taxonomy of squat-
ting’with which one might better evaluate the law in this area.
The idea of pursuing legal scholarship through the development of taxo-
nomies is not without its critics,both within and beyond the UK legal academy.
10
In the context of English property law, the activity of classi¢cation has become
5SeeAdversePossession, a Report by the British Institution of International and Comparative Law
for Her Majesty’s Court Service (September 2006), which outlines the key principles across
a range of ECHR and common lawjuri sdictions.
6 K.Gray and S.F. Gray, Elementsof Land Law (Oxford: Oxford University Press,4th ed, 20 04) para
6.50.
7J.A. Pye (Oxford) Ltd vGraham [2002]UKHL 3 0 at[2] per Lord Bingham.
8J.A. Pye (Oxford) Ltd vGraham [2000] Ch 676, 709^710.
9 Law Commission, Land Registration for the 21st Century: A Conveyancing Revolution(Law Com No
271) (London: HMSO,2001) para10.5.
10 See, for example,D. Campbell,‘Classi¢cation and the Crisis of the Common Law’ (1999) 26 JLS
369; P. Ja¡ey, ‘Classi¢cation and Unjust Enrichment’ (2004) 67 MLR 1012; G. Samuel,‘English
PrivateLaw: Old and NewThinking in the Taxonomical Debate’(2004) 24 OJLS 335.
Lorna Fox O’Mahony and Neil Cobb
879
r2008 The Authors.Journal Compilation r20 08The Modern Law Review Limited.
(2008) 71(6) 878^911
strongly associated with the Birksian taxonomy of private law,
11
which, brie£y sta-
ted, sought to identify a series of discrete categories into which legal rights, obliga-
tions, claims and outcomes would be ‘mapped’, to evaluate the ‘rightness’ of a
decision by its ability to ¢t into the appropriate category, and to use the resulting
taxonomyto direct the future developmentof the law along certain rational, clearly
identi¢ed channels.Thi s article does not purportto contribute to this project: as the
‘keepers of the squatting taxonomy’
12
it is not our goal to set out a ‘rational taxon-
omy’ of legal responses to squatting, or of adverse possession, but rather to set out a
‘formal taxonomy’through which we can bet ter understand the complex and s ig-
ni¢cant twists and turns which the law has taken in this ¢eld in recent years.
The purposes of such a ‘formal taxonomy’ were usefully explored in a recent
paper, in which Emily Sherwin analysed the role and function of legal taxo-
nomies.
13
Sherwin considered two competing models of legal taxonomy: (1) the
‘reason based taxonomy’applied by Professor Birks, wherebylegal rules and deci-
sions are classi¢ed according to‘legal principles’, and the resulting taxonomy is
employed to determine future decision making, and (2) the‘formal taxonomy’,
a process by which e¡orts are made to classify legal materials according to rules
of orderand clarity. Sherwin noted that while a reason-based taxonomy seeks to
identify ‘high-level decisional rules’, formal taxonomy ‘serves less ambitious
objectives, suchas facilitating legalanalysis and communication’.
14
For formal tax-
onomy, the key objective of mapping legal provisions, principles or decisionswas
articulated by Sherwin asbased in a recognitionthat:‘[c]lassi¢cationplays a neces-
sary role in legal analysis: to think and argue clearlyabout law, we need to orga-
nize the rawmaterial of legal rules and decisionsinto more general categories.Yet,
surely these general categories should correspond to the reasons that under lie the
law. Only then will they be of practical use as guides tolegal decision-making.’
15
This paper begins the construction ofa formal taxonomy of legal responses to
unauthorised occupation in England and Wales.We believe it is a timely exercise
given recent developments in both legislative and judicial policies in the UK
which have dramatically altered legal responses to squatting and, particularly, to
adversepossession. On theone hand, the Land Registration Act 2002 (LRA2002)
set out a new legal framework for the regulation of title in registered land which
has e¡ectively curtailedthe operation of adverse possession in favourof squatters,
16
described by one commentator as ‘the emasculation of adverse possession in
11 See, for example, P. Birks, English Private Law (Oxford: Oxford University Press, 2000) vol 1,
xxxv-xliii; P. Birks,‘De¢nition and Division, A Meditation on Institutes 3.13’ in P.Birks (ed) The
Classi¢cation of Obligations (Oxford: OxfordUniversity Press,1998); P Birks,‘Equityin the Modern
Law’ (1996) 26 WesternAustralian Law Review 1.
12 Birks refers to ‘the keeper of the trusts taxonomy’, for example, in section IV.D of his lecture
‘Equity, Conscience, and Unjust Enrichment’ published at (1999) 23 Melbourne University Law
Review 1.
13 E. Sherwin, LegalTaxonomy (Cornell Law School Legal Studies Research Paper Series, Paper 47,
2006) at http://ssrn.com/abstract=925129 (last visited 12 June 2008).
14 ibid Abstract.
15 ibid 4, emphasis added.
16 See, for example,M. Dixon,‘The Reformof Property Law and the Land RegistrationAct 2002: A
Risk Assessment’ [2003] Conv 136; M. Dixon, ‘Adverse Possession and Human Rights’ [2005]
Conv 345,351; M. Dixon,‘Adverse Possession inThree Jurisdictions’ [2006] Conv179.
Taxonomies of Squatting
880 r2008 The Authors.Journal Compilation r2008 The Modern Law Review Limited.
(2008) 71(6) 878^911
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