A Critical Analysis of the Current Status of the Doctrine of Adverse Possession in light of the UK Housing Crisis
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I’m Rian Dhillon, a 23-year-old aspiring commercial lawyer. I graduated from Durham with a First-Class Honours in my LLB, ranking 4th out of my cohort with first-class marks across the board in my final year. I was born and raised in London, and I am currently studying the Legal Practice Course at BPP Law School before commencing my training contract at an international law firm in London later this year.
I decided to write my dissertation on recent developments in the law of adverse possession as the doctrine stood out to me when studying land law in my second year; in particular, the draconian effect that, when certain statutory requirements are met, an owner may lose his land to an invader. Having written my dissertation in the midst of the coronavirus pandemic, the topic of housing was naturally at the forefront of my mind with media headlines highlighting the crisis in UK housing, in terms of both affordability and availability. Exploring the intersection between the topics of adverse possession and housing issues thus made for an interesting discussion on the ways in which land law enables the housing crisis and how the doctrine of adverse possession can be shaped to combat this.
- Rian Dhillon, Author
Introduction
“Housing has become the defining economic issue of our times”.[1] This is hardly a controversial assertion: with 665,000 properties lying empty[2] and house prices seeing their highest annual growth in over six-years despite the chaos of the COVID-19 pandemic,[3] it seems difficult to dispute the existence of the housing ills pervading the nation. Against this backdrop there has been an erosion of adverse possession: the doctrine which enables a transfer of title to property from the true owner to the squatter upon fulfilment of certain common law and statutory conditions. This dissertation will examine the intersection between these two affairs.
Scholars in England and Wales tend to be reluctant to recognise the utility of adverse possession, describing its existence as “increasingly strange”[4] in the context of registered land. Such a view has been pioneered by the Land Registration Act 2002 (“LRA”) thereunder no amount of adverse possession automatically strips an owner of his title, and bolstered by section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) which criminalises trespassing in residential buildings. Yet, according with academic analyses in the US which champion the doctrine’s use to counter vacant properties and community blight,[5] this dissertation seeks to argue that adverse possession can be expanded to serve as one potential method to soften the occurrence of under-utilised properties and absentee ownership.
Accordingly, Chapter I of this dissertation will contextualise the housing crisis and introduce the foundation for reform. Firstly, it will set out land’s unique characteristics which make it inherently precious and coveted. Secondly, it will frame the housing crisis within affordability and supply issues to demonstrate that the crisis is rooted in the under-utilisation of the existing housing stock. It will then draw upon the model of stewardship to postulate that owners have an ethical responsibility not to neglect their property and that adverse possession, as a doctrine animated by land’s disuse, is one potential vehicle for legally promoting this responsibility.
Chapter II will set out adverse possession’s framework. It first demonstrates how the traditional regime under the Limitation Act 1980 (“LA”) offers a potent mechanism for encouraging land stewardship. It then analyses the reforms to adverse possession within the LRA 2002 alongside its interaction with the criminal law under section 144 LASPO. This analysis will demonstrate that both legislations endorse absentee ownership and inhibit land stewardship. Finally, it will suggest that both legislations contain a moral agenda which it will subsequently displace in order to reject the current laws and cultivate a case for reform.
Building on the analyses of the previous chapters, Chapter III will propose a more permissive scheme to better promote effective stewardship. Whilst it is beyond this dissertation’s scope to draft exact changes to the law, it will propose shortening the statutory period of adverse possession, implementing an option to purchase and softening the associated criminal law. This dissertation does not purport that squatting or adverse possession is the silver bullet to the housing crisis. Rather, through the lens of the housing crisis, it endeavours to advocate a relaxed approach to adverse possession as an alternative method for promoting the use of property to serve societal housing needs.
Due to brevity, this dissertation will not examine adverse possession relating to leases, trusts or easements. It will focus upon adverse possession (squatting-for-title) against registered freeholders of residential premises. Regarding terminology, “adverse possessor” and “squatter” will be used synonymously. Furthermore, “landowner”, “homeowner”, “registered proprietor” and “paper-owner” equivalently refer to those holding title to land.
[1] Danny Dorling, Peak Inequality: Britain’s Ticking Time Bomb (Policy Press 2018) 91
[2] Ministry of Housing, Table 615: vacant dwellings by local authority distract: England, from 2004 (March 2021) <https://www.gov.uk/government/statistical-data-sets/live-tables-on-dwelling-stock-including-vacants#history> accessed 21 April 2021
[3] ONS, ‘UK House Price Index: December 2020’ (17 February 2021)
[4] Kevin Gray and Susan Gray, Elements of Land Law (5th edn, OUP 2007) 127
[5] Alaina De Biasi, ‘Squatting and adverse possession’ (2019) 23(1) City 66; Sally Richardson, ‘Abandonment and Adverse Possession’ (2015) 52 Houston Law Review 1385; Scott Shepard, ‘Adverse Possession, Private-Zoning Waiver & Desuetude: Abandonment & Recapture of Property and Liberty Interests’ (2011) 44 UMich Journal of Law Reform 557
