Adverse Possession – Does the owner get his just deserts?

1. Adverse Possession – Does the owner get his just deserts? Una Woods, University of Limerick

2. Context • The law in Ireland • Impact of recent English reforms (Land Registration Act 2002) • This paper • examines how sympathy or antipathy for the owner emerges as a theme in the academic literature and • discusses whether such sympathy has in the past, or could in the future, influence whether the courts apply the rule in Leigh v Jack (1879) 5 Ex D 264

3. The blameworthiness of the owner as portrayed by the literature • Caricatures – ‘innocent victim’ versus ‘villain’ • Blameworthy owner – ‘sleeping theory’ • ‘You snooze, you lose’ (Stake) • Spectrum of sleeping plaintiffs (abandoned land; failure to monitor) • ‘Earner theory’ • Punishes owner you fails to use/develop land • Rewards squatter for doing so (and returning it to the market) • Moral and economic dimensions to justifications

4. American critiques of the sleeping and earner theories • Stake, The Uneasy Case for Adverse Possession’ 89 (2000-1) Geo. L.J. 2419; Merrill, ‘Property Rules, Liability Rules and Adverse Possession’ 79 (1984-85) Nw UL Rev 1122; Fennell, ‘Efficient Trespass: The Case for “Bad Faith” Adverse Possession’ 100(2006) Nw UL Rev 1037. • ‘Dubious’; ‘Straw man argument worthy of ridicule’ • Owner’s prerogative to do what he wants (provided it doesn’t interfere with others) • Passive use may be the best use – environmental concerns • Even speculation may be the best use • Rationales overstate what is required – all he has to do is monitor the land • Monitoring may ‘flush out offers to purchase’ – facilitates land transactions • Are buyers likely to camp out in hopes of meeting a monitoring owner? • Monitoring viewed as a cost rather than a benefit

5. English (and international) literature on sleeping/redistribution theories • Dockray, ‘Why do we need adverse possession?’ [1985] Conv 272 • Knowledge (actual or constructive) of accrual of cause of action is not a pre-condition • Bogusz, ‘Bringing Land Registration into the Twenty-First Century – The Land Registration Act 2002’ 65 (2002) Mod L Rev 556 • May have had a redistributive role in feudal times • Gardiner, ‘Squatters’ rights and adverse possession: A search for equitable application of property laws’ (1997-1998) 8 Ind Int’l & Comp L Rev 119 • Vital role in less developed countries (inadequate land titling systems, vast areas of under-utilised land, housing shortages • Fox and Cobb, ‘Living outside the system? The (im)morality of urban squatting after the Land Registration Act 2002’ 27(2)(2007) Leg Studs 236 Fox-O’Mahony and Cobb, ‘Taxonomies of Squatting: Unlawful Occupation in a New Legal Order’ 71(6)(2008) Mod L Rev 878 • Critical of large landowners (local authorities) who fail to monitor their properties

6. ‘Living outside the system’ • Law Commission accused of ‘moral essentialism’ • ‘For the Law Commission, the problem of forgotten properties was one for which landowners were regarded as blameless… The clear (and contentious) moral implication here – that landowners cannot rather than simply do not supervise their properties effectively – reinforces the view that they should not be punished for inadequate supervision by losing title to their land. The LRA 2002 was specifically designed to protect registered proprietors from the possibility of such oversight or inadvertence.’ • ‘...it is arguable that many large landowners are in a better position financially to manage their property effectively and should therefore be expected to take much greater responsibility for surveillance.’ They also note, ‘…the challenges of effective supervision seem less acute for landowners of smaller tracts of land.’ • Owners who to monitor are in breach of their duty of stewardship (and have a morally weaker claim than the urban squatter)

7. ‘Taxonomies of Squatting’ • Critique of the Grand Chamber decision in Pye v UK(2008) 46 EHRR 45 • The interference with the right to property can be justified by the public interest it serves in promoting good land stewardship • Stewardship v liberal models of ownership • Works well to restrict owner’s right of use and exclusion to comply with community orientated responsibilities (eg environment, heritage, public rights of access to the countryside) • Does it work well to justify adverse possession? • Remember monitoring doesn’t include caring for the land • Irish Derelict Sites Act 1990

8. How morally essentialist was the Law Commission? • Literature • Overly-influenced by problems faced by certain owners • No consideration of moral position of the urban squatter • Fox-O’Mahony and Cobb re-balance the case for reform • But are they also guilty of a degree of moral essentialism? • Difficult/impossible to avoid subjective biases in examining the fairness of a law as it applies in specific situations • Most owners lose title to neighbours and family members – failure to formalise arrangement/commence litigation is designed to avoid conflict (is this bad land stewardship?) • The failure to act becomes even more understandable if the owner has no current use for the property (but has future plans) – see facts of Pye

9. Leigh v Jack – Has it been applied out of sympathy for the owner? • Time cannot run in favour of a squatter unless he is engaged in acts of user which are inconsistent with the future plans of the owner • Number of reasons for the decision • Its application/rejection has generally been a matter of black letter law (no express reference to blameworthiness of owner or human rights issues involved) • Beaulane Properties Ltd v Palmer [2006] Ch 79 (Nicholas Strauss QC) • The application of the rule in Ireland

10. Was Pye Ltd blameworthy? • ECHR references to culpability • Strategic reasons for not entering into another grazing agreement • Company representative had visited the land • It is arguable that the owner had monitored and was content that it was been exploited and maintained while planning was being sought • Guilty of not acting in antagonistic or litigious fashion to a neighbouring farmer – a bad land steward??

11. A potential role for Leigh v Jack to protect the owner • Buckley’s argument in the aftermath of the Chamber decision in Pye • ‘Adverse Possession at the Crossroads’ (2006) 11 (3) CPLJ 59 • Katz ‘The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law’ (2010) 55 McGill LJ 47 • US – transformation of thief into owner – a moral paradox • England –procedural model (focusing on extinction of owner’s rights and relying on relativity of title) avoids this moral paradox • Relies on an unsatisfactorily weak conception of ownership

12. ‘Inconsistent use’ model • recognises the transformation without collapsing into a moral paradox • Recognises the owner’s authority to set an agenda and remain owner without maintaining possession • Fills a vacancy in ownership where the owner is no longer exercising his authority and the land has become agenda-less • Analogy with the position of a government which has taken over as a result of a bloodless coup d’etat • The model ‘solves the moral problems of agenda-less objects just as the recognition of the existing government (whatever its origins) solves the moral problem of stateless people.’

13. Problems with this model • Difficulties in establishing subjective intention • How specific must the owner’s plans be? • Inconsistent user test may not be straightforward to apply • Doesn’t protect the owner with no plans • Katz pre-supposes ambivalence on the part of English jurists in relation to the morality of the law • Fails to consider the merits of the veto system as a method of protecting the owner’s authority