442 Property Law

So, neither the necessary evil argument nor the incompatibility argument take us far in a consideration of why long use should not give rise to entitlement in the case of adverse possession of registered land.

Notes and Questions 11.4

Read J. A. Pye (Oxford) Ltd v. Graham [2002] UKHL 30, either in full or as extracted at www.cambridge.org/propertylaw/, and consider the following:

1.It is argued above that the good faith/bad faith distinction drawn in the Land Registration Act 2002 does not draw a satisfactory line between the morally reprehensible taker, the morally neutral taker, and the morally praiseworthy taker. Do you agree? Where on these two spectrums would you put the adverse possessors in J. A. Pye (Oxford) Ltd v. Graham?

2.If we were to introduce a more general good faith/bad faith distinction into our law, how would we deal with successive squatters? Would we consider only whether the original taker was in good faith, or would we want to look also (or instead) at the ‘innocence’ or ‘guilt’ of successor squatters?

3.As Radin pointed out, enquiries into states of mind are costly, and particularly unsatisfactory when they concern someone’s state of mind more than twelve years ago. If we are to penalise those who know they are taking what does not belong to them, where should the burden of proof lie? Should we concern ourselves only with what they actually knew (actual notice) or should we also consider what they ought to have known (constructive notice)? If we were to adopt either Epstein’s or Merrill’s suggestions for dealing with bad faith takers, which would be the more costly?

4.If allocating blame by taking into account the good faith or bad faith of the taker, should we not also take into account the degrees of sympathy we feel for

proprietor to ‘a person . . . [who] has been in adverse possession . . . for a period of ten years . . . ’, and para. 11(1) then provides that a person is in adverse possession for these purposes if, but for s. 96 of the 2002 Act (which excludes the operation of s. 15 of the LA 1980), ‘a period of limitation . . .

[under s. 15 of the 1980 Act] would run in his favour in relation to the estate’. Section 15 of the 1980 Act is neutral as to the person in whose favour a limitation period runs, but its effect is to make the limitation period run from the date of first dispossession (even if that dispossessor was dispossessed by the current squatter). The limitation period therefore ‘runs in favour’ of the current squatter under s. 15 of the 1980 Act during the period when the prior squatter was in adverse possession, as well as when she herself is. It could therefore be said that the current squatter is ‘in adverse possession’ within the meaning of para. 11 even before she got there – i.e. also during the period of adverse possession of the prior squatter she dispossessed. The express provision in para. 11(2) of two other situations where the claimant is ‘to be regarded’ as having been in adverse possession during periods when someone other than she herself is, is an indication that the prior possession of the dispossessed predecessor is not intended to count, but then para. 11(3) reintroduces the notion that, except where expressly provided to the contrary by the 2002 Act, it is the 1980 Act provisions which are to be used to determine when a person is or is not to be treated as being in adverse possession.