
- •Contents
- •Preface
- •Acknowledgments
- •Table of cases
- •Table of statutes
- •Table of statutory instruments
- •Table of treaties
- •Table of EC legislation
- •1 Property law: the issues
- •1.1. Basic definition
- •1.2. Illustrative example
- •1.2.1. John
- •1.2.1.1. The unexcised body cell and the question of ownership
- •1.2.1.2. John’s interest in the excised body cell
- •1.2.1.3. Continuity of interests and John’s interest in the cell line
- •1.2.1.4. Enforceability of John’s interest in the cell line
- •1.2.2. Dr A and Dr B and the acquisition and transmission of property interests
- •1.2.3. The drugs company: constraints on the exercise of property rights
- •Notes and Questions 1.1
- •2 What we mean by ‘property’
- •2.1. Introduction
- •2.1.1. Property as a relationship and as a thing
- •2.1.2. Conceptualising ‘things’
- •2.1.3. Distinguishing property rights from other rights relating to things
- •2.1.4. Rights and other entitlements: Hohfeld’s rights analysis
- •2.1.4.1. Rights and duties, privileges and no-rights
- •2.1.4.2. Privileges and no-rights, and powers and liabilities
- •Abandonment
- •Effect of restrictions on alienation rights
- •2.1.4.3. Powers and liabilities, immunities and disabilities
- •2.1.5. Hohfeldian analysis of dynamic property relationships
- •2.1.5.1. Stage 1: Before the grant of the option
- •2.1.5.2. Stage 2: Grant of the option
- •2.1.5.3. Stage 3: Exercise of the option
- •2.1.6. Property rights, property interests and ownership
- •Notes and Questions 2.1
- •2.2. Private property, communal property, state property and no property
- •2.2.1. Introduction
- •2.2.2.1. No-property: ownerless things
- •2.2.2.2. Open access communal property
- •Distinction between open access and limited access communal property
- •Distinction between open access communal property and no property
- •Distinction between open access communal property and state property
- •Distinction between allocation and provision of resources
- •Regulation of communal property
- •2.2.2.3. Limited access communal property
- •Distinction between communal property and co-ownership
- •Particular use rights rather than general use rights
- •2.2.2.4. State property
- •2.2.2.5. Anticommons property
- •2.3. Economic analysis of property rights
- •2.3.1. What economic analysis seeks to achieve
- •Notes and Questions 2.2
- •2.3.2. Key concepts in the economic analysis of property rights
- •2.3.2.1. Externalities
- •2.3.2.2. Transaction costs
- •Imperfect information
- •Costs of collective action
- •Free-riders and holdouts
- •2.3.2.3. Efficiency
- •Value
- •Pareto efficiency
- •Kaldor-Hicks efficiency
- •2.4. Things as thing and things as wealth
- •2.4.1. Functions of things
- •2.4.2. The idea of a fund
- •2.4.3. Thing versus wealth
- •2.4.4. Related conceptions
- •2.4.4.1. Fungibles and non-fungibles
- •2.4.4.2. ‘Use value’ and ‘exchange value’
- •2.4.4.3. Property and personhood
- •Use value/exchange value
- •A functional distinction
- •Notes and Questions 2.3
- •3 Justifications for property rights
- •3.1. Introduction: general and specific justifications
- •3.2. Economic justification of property rights
- •3.2.1. Property and scarcity
- •Notes and Questions 3.1
- •3.2.2. Viability of single property systems
- •3.2.3. Criteria for measuring the success of a particular form of ownership
- •3.3. John Locke’s justification for private property
- •3.3.1. What Locke was attempting to establish
- •3.3.2. The political context
- •3.3.3. The problem of consent
- •3.3.4. Locke’s justification for original acquisition
- •3.3.5. The nature of Locke’s commons
- •3.3.6. Why mixing labour with a thing should give rise to entitlement
- •3.3.7. The sufficiency proviso
- •3.3.8. The spoilation proviso
- •3.3.9. The theological dimension to Locke’s theory
- •3.3.10. Present relevance of Locke’s theory
- •Notes and Questions 3.2
- •4 Allocating property rights
- •4.1. Introduction
- •4.2. The first occupancy rule
- •4.2.1. Intuitive ordering
- •4.2.2. Preservation of public order
- •4.2.3. Simplicity
- •4.2.4. Signalling
- •4.2.5. The bond between person and possessions
- •4.2.6. The libertarian justification
- •4.2.7. The communitarian objection
- •4.2.8. Economic efficiency
- •Notes and Questions 4.1
- •4.3. New things
- •Notes and Questions 4.2
- •4.4. Capture
- •Notes and Questions 4.3
- •5.2. Iron-holds-the-whale
- •5.3. Split ownership
- •4.5. Colonisation and property rights
- •4.5.1. Introduction
- •4.5.2. The Milirrpum decision and the doctrine of terra nullius
- •4.5.3. Mabo (No. 2)
- •4.5.3.1. Terra nullius
- •4.5.3.2. Property, sovereignty and the doctrine of radical title
- •4.5.3.3. Extinguishment
- •Express extinguishment
- •Implied extinguishment by inconsistent grant
- •Abandonment
- •Surrender but not alienation
- •Notes and Questions 4.4
- •4.5.4. Developments since Mabo (No. 2)
- •5 Personal and proprietary interests
- •5.1. Characteristics of proprietary interests
- •5.1.1. General enforceability
- •5.1.2. Identifiability of subject-matter
- •5.1.2.1. The basic principle
- •5.1.2.2. Fluctuating assets
- •5.1.3. Significance of alienability
- •5.1.3.1. Inalienability of communal property
- •5.1.3.2. Status rights
- •5.1.3.3. Appurtenant rights
- •5.1.4. Requirement for certainty
- •5.1.5. The numerus clausus of property interests
- •5.1.6. Vindication of property rights
- •5.1.7. Termination
- •5.1.7.1. Abandonment
- •5.1.7.2. Disclaimer
- •5.1.7.3. Forfeiture
- •5.1.8. Property rights and insolvency
- •5.2. Special features of communal property rights
- •5.2.1. Present scope of communal property
- •5.2.1.1. Rights of common
- •5.2.1.2. Customary rights
- •Notes and Questions 5.1
- •5.3. Aboriginal land rights
- •5.3.1. Nature of native title
- •5.3.2. Alienability
- •5.3.3. Abandonment
- •5.3.4. Variation
- •5.3.5. Extent of native title
- •5.3.6. Is native title proprietary?
- •5.3.6.1. Blackburn J’s view in Milirrpum
- •5.3.6.2. The view of the High Court in Mabo (No. 2)
- •5.3.6.3. The Canadian view
- •Notes and Questions 5.2
- •6 Ownership
- •6.1. The nature of ownership
- •6.1.1. The basis of ownership
- •6.1.1.1. Ownership and people
- •6.1.1.2. Ownership and things
- •6.1.2. An outline of the difficulties encountered in any consideration of ownership
- •6.1.2.1. The different meanings of ownership
- •6.1.2.2. Disagreements about ownership
- •6.1.2.3. Contradictions within ownership
- •6.1.2.4. The division of ownership
- •Between different types of owner
- •Between owners and non-owners
- •Notes and Questions 6.1
- •Notes and Questions 6.2
- •6.2. The contents of ownership
- •Notes and Questions 6.3
- •Notes and Questions 6.4
- •6.3. The roles played by ownership
- •6.3.1. As a legal term of art
- •6.3.1.1. Ownership’s role in land
- •6.3.1.2. Ownership’s role in chattels
- •6.3.1.3. Ownership’s role in legislation
- •6.3.2. As an amorphous notion
- •6.3.2.1. Ownership as an organising idea
- •6.3.2.2. Ownership as a contested concept
- •6.4. The limitations of ownership
- •6.4.1. Nuisance
- •6.4.1.1. A brief introduction to nuisance
- •Public nuisance
- •Private nuisance
- •6.4.1.2. The requirements of private nuisance
- •6.4.1.3. Private nuisance and private property
- •What is protected?
- •6.4.1.4. The allocation of entitlements
- •The traditional criteria
- •The role of the market
- •The role of public policy
- •6.4.1.5. The protection of entitlements
- •Property rules
- •Liability rules
- •Rules of inalienability
- •Notes and Questions 6.5
- •Notes and Questions 6.6
- •Notes and Questions 6.7
- •Notes and Questions 6.8
- •Notes and Questions 6.9
- •A. Property and liability rules
- •B. Inalienable entitlements
- •Notes and Questions 6.10
- •6.5. Restrictive covenants
- •Notes and Questions 6.11
- •Notes and Questions 6.12
- •7 Possession
- •7.1. The nature of possession
- •7.1.1. Introduction
- •7.1.2. Possession, ownership and proprietary interests
- •7.1.3. What is possession?
- •7.1.3.1. Factual control
- •The relevance of title
- •The nature of the thing possessed
- •The purpose for which the thing is used
- •Control through agents and control of contents
- •7.1.3.2. Intention required
- •Intention to exclude
- •Effect of ignorance
- •Notes and Questions 7.1
- •7.2. Possession of land
- •7.2.1. Leases and licences
- •7.2.1.1. Why the distinction matters
- •7.2.1.2. Distinguishing leases from licences
- •Notes and Questions 7.2
- •7.2.2. Possession and particular use rights
- •7.2.2.1. General and particular use rights
- •7.2.2.2. Compatibility of particular and general use rights
- •7.3. Possession of goods: bailment
- •7.3.1. Nature of bailment
- •7.3.2. Rights, duties and obligations of bailor and bailee
- •7.4. Protection of possession
- •7.4.1. Protection of property rights by protection of possession
- •7.4.2. Tort and the protection of property rights
- •7.4.2.1. The role of tort in the protection of property rights
- •7.4.2.2. Scope of the property torts
- •Conversion
- •What amounts to a conversion of goods?
- •Remedies
- •Trespass
- •What amounts to trespass
- •Remedies
- •7.4.3. Self-help remedies
- •7.4.3.1. Survival of self-help remedies
- •7.4.3.2. Restrictions and deterrents
- •7.4.4. Unlawful eviction and harassment
- •7.4.5. Trespassing and the criminal law
- •Notes and Questions 7.3
- •8 Fragmentation of ownership
- •8.1. Introduction
- •8.2. Present and future interests
- •8.2.1. Interests in possession, in reversion and in remainder
- •8.2.2. Absolute entitlements, contingent entitlements and mere expectancies
- •8.2.2.1. Absolute entitlements
- •8.2.2.2. Contingent interests and expectancies
- •8.2.2.3. Alternative contingencies
- •8.2.3. When interests vest
- •8.2.4. Alienation, management and control
- •8.2.5. Interests of contingent duration
- •8.2.5.1. Determinable interests
- •8.2.5.2. Interests subject to a condition subsequent
- •8.2.5.3. Distinguishing determinable and forfeitable interests
- •8.2.6. Requirement of certainty
- •8.2.7. Successive interests in land and the doctrine of tenures and estates
- •8.2.7.1. Tenures and estates
- •8.2.7.2. Estates in particular use rights
- •8.2.7.3. Leases
- •8.2.8. Restrictions on the power to create future interests
- •8.3. Legal and equitable interests
- •8.3.1. Origin of the legal/equitable distinction
- •8.3.1.1. Failed formality interests
- •8.3.1.2. Novel interests
- •8.3.2. Legal and equitable interests now
- •8.3.2.1. Interests in land
- •8.3.2.2. Interests in goods
- •8.3.3. The significance of the legal/equitable distinction
- •8.3.4. Three common fallacies
- •8.3.4.1. Equitable interests and beneficial interests
- •8.3.4.2. Over-identification of equitable interests with trusts
- •8.3.4.3. Absolute ownership does not include equitable beneficial ownership
- •Notes and Questions 8.1
- •8.4. Fragmentation of management, control and benefit
- •8.4.1. Corporate property holding
- •8.4.2. Managerial property holding
- •8.4.2.1. Trust
- •The trustee
- •The settlor
- •The beneficiaries
- •8.4.2.2. Administration of property on death
- •8.4.2.3. Bankruptcy and liquidation
- •Notes and Questions 8.2
- •8.5. Group ownership
- •8.6. General and particular use rights
- •Notes and Questions 8.3
- •9 Recognition of new property interests
- •9.1. Why are certain interests regarded as property?
- •9.1.1. The function of property
- •9.1.1.1. As a means of allocating scarce resources
- •9.1.1.2. As an incentive to promote their management
- •9.1.1.3. As a moral, philosophical or political statement
- •9.1.2. The danger of property
- •9.1.3. The requirements of property
- •9.2. The dynamic nature of property
- •9.2.1. The recognition and limits of the covenant as a proprietary interest
- •Notes and Questions 9.1
- •9.2.2. The recognition of a proprietary right to occupy the matrimonial home
- •Notes and Questions 9.2
- •9.3. The general reluctance to recognise new property rights
- •9.3.1. The facts of Victoria Park Racing v. Taylor
- •9.3.2. The views of the majority
- •9.3.3. The views of the minority
- •9.3.4. The significance of the case
- •Notes and Questions 9.3
- •9.4. A comparative confirmation and an economic critique
- •Notes and Questions 9.4
- •9.5. The future of property
- •9.5.1. The new property thesis
- •Notes and Questions 9.5
- •Notes and Questions 9.6
- •10 Title
- •10.1. What we mean by ‘title’
- •10.2. Acquiring title: derivative and original acquisition of title
- •10.2.1. Derivative acquisition: disposition or grant
- •10.2.2. Original acquisition
- •10.3. Relativity of title
- •10.4. Proving title
- •10.4.1. Role of registration
- •10.4.2. Possession as a root of title
- •10.4.3. Provenance
- •10.4.4. Extinguishing title by limitation of action rules
- •10.4.5. Relativity of title and the ius tertii
- •10.5. The nemo dat rule
- •10.5.1. Scope of the nemo dat rule
- •10.5.2. General principles applicable to all property
- •10.5.2.1. Registration and the nemo dat rule
- •10.5.2.2. Dispositions to volunteers
- •10.5.2.3. Powers of sale
- •10.5.3. The application of the nemo dat rule to goods
- •10.5.4. The application of the nemo dat rule to money
- •10.5.5. The application of the nemo dat rule to land
- •10.5.5.1. The general principle
- •10.5.5.2. After-acquired property
- •10.5.5.3. Interests by estoppel
- •10.6. Legal and equitable title
- •11 Acquiring title by possession
- •11.1. Introduction
- •11.2. The operation of adverse possession rules
- •11.2.1. Unregistered land
- •11.2.2. Registered land
- •11.2.3. What counts as ‘adverse’ possession
- •11.2.4. Effect on third party interests
- •11.3. Why established possession should defeat the paper owner
- •11.4. Adverse possession and registration
- •11.5. Good faith and the adverse possessor
- •1. Tension between principle and proof
- •Notes and Questions 11.1
- •A. Lockean entitlement
- •B. Utilitarianism
- •C. Property and personhood
- •B. Property theory and adverse possession
- •Notes and Questions 11.2
- •Notes and Questions 11.3
- •Stale claims in registered land
- •Stale claims under the 2002 Act
- •Distinguishing the ‘good’ squatter from the ‘bad’ squatter
- •Problems of proof
- •Effect of the 2002 Act changes on the incidence of adverse possession
- •The incompatibility argument
- •Notes and Questions 11.4
- •11.6. Goods
- •11.6.1. Taking and theft
- •11.6.2. Protection of title by tort
- •11.6.3. The Limitation Act 1980 and title to goods
- •11.6.4. Finders
- •Notes and Questions 11.5
- •12 Transfer and grant
- •12.1. Derivative acquisition
- •12.2. Formalities
- •12.2.1. Nature and content of formalities rules
- •12.2.2. Registration and electronic transactions
- •12.2.3. Validity and enforceability against third parties
- •12.2.4. Effect of compliance on passing of title
- •12.2.5. Transactions excepted from formalities rules
- •12.2.5.1. Equitable modification of legal rules
- •12.2.5.2. Implied rights
- •12.2.5.3. Rights acquired by possession or prescription
- •12.2.6. Deeds and prescribed forms
- •12.2.7. Why have formalities rules
- •12.2.7.1. The evidentiary function
- •12.2.7.2. The cautionary function
- •12.2.7.3. The channelling function
- •12.2.7.4. Other functions
- •Clarifying terms
- •Publicity
- •State functions
- •12.2.8. Disadvantages
- •12.2.8.1. Hard cases
- •12.2.8.2. Costs
- •Notes and Questions 12.1
- •Notes and Questions 12.2
- •12.3. Contractual rights to property interests
- •12.3.1. Estate contracts and the rule in Walsh v. Lonsdale
- •12.3.2. Application to property other than land
- •12.3.3. The failed formalities rule
- •12.3.3.1. The general rule
- •12.3.3.2. The failed formalities rule as it applies to land
- •12.3.3.3. Failed formalities rule as it applies to other property
- •Notes and Questions 12.3
- •Notes and Questions 12.4
- •12.3.4. Options to purchase, rights of pre-emption and rights of first refusal
- •Notes and Questions 12.5
- •Notes and Questions 12.6
- •12.4. Unascertained property
- •12.4.1. The problem of identification
- •12.4.2. Unascertained goods
- •12.4.3. Other unascertained property
- •Notes and Questions 12.7
- •13 Acquiring interests by other methods
- •13.1. Introduction
- •13.2. The difference between adverse possession and prescription
- •13.3. Why long use should give rise to entitlement
- •13.4. Rationale
- •13.4.1. Ascendancy of the presumed grant rationale
- •13.4.2. Effect of the ‘revolting fiction’
- •13.5. When long use gives rise to a prescriptive right
- •13.5.1. The problem of negative uses
- •13.5.2. Rights that can be granted but not acquired by prescription
- •13.6. User as of right and the problem of acquiescence
- •13.7. The future of prescription
- •Recommendation in favour of abolition
- •Minority view in favour of retention
- •Notes and Questions 13.1
- •14 Enforceability and priority of interests
- •14.1. Rationale of enforceability and priority rules
- •14.2. Enforceability and priority rules
- •14.2.1. The basic rules
- •14.2.2. Impact of registration
- •Notes and Questions 14.1
- •14.3. The doctrine of notice
- •14.3.1. Notice
- •14.3.2. Good faith
- •14.3.3. Effectiveness of the doctrine of notice as an enforceability rule
- •Notes and Questions 14.2
- •14.4. Overreaching
- •14.4.1. Nature and scope of overreaching
- •14.4.2. Operation of overreaching
- •14.4.3. Overreaching the interests of occupying beneficiaries
- •14.4.4. Transactions capable of overreaching beneficiaries’ interests
- •14.4.5. The two-trustees rule
- •Introductory
- •Overreaching
- •Safeguard for beneficiaries
- •Change of circumstances
- •Protecting occupation of property
- •Principal recommendation
- •Notes and Questions 14.3
- •15 Registration
- •15.1. What are registration systems for?
- •15.2. Characteristics of the English land registration system
- •15.2.1. Privacy
- •15.2.2. Comprehensiveness
- •15.2.3. Boundaries
- •15.2.4. Restricted class of registrable interests
- •15.2.4.1. Distinguishing ‘substantive’ registration and ‘protection’ on the register
- •15.2.4.2. Registration
- •15.2.4.3. ‘Protection’ by notice or restriction
- •15.2.4.4. The overriding interest class
- •15.2.5. The mirror, curtain and guarantee principles
- •THE ‘MIRROR PRINCIPLE’
- •THE ‘CURTAIN PRINCIPLE’
- •15.2.6. Consequences of non-registration
- •Notes and Questions 15.1
- •Compulsory use of electronic conveyancing
- •Do-it-yourself conveyancing
- •The objective of the power
- •The application of the power
- •Notes and Questions 15.2
- •15.3. Enforceability and priority of interests under the Land Registration Act 2002
- •15.3.1. Registrable interests
- •15.3.2. All other interests
- •15.3.2.1. Enforceability
- •15.3.2.2. Priority
- •15.4. Overriding interests
- •15.4.1. Justifications for overriding interests
- •15.4.2. Principles to be applied
- •15.4.3. Overriding interests under the 2002 Act
- •15.4.4. Easements and profits
- •15.4.5. Interests of persons in actual occupation: the 1925 Act
- •15.4.5.1. What rights are covered?
- •5.4.5.2. Actual occupation
- •Physical presence
- •Personal occupation
- •Non-residential premises
- •15.4.6. Interests of persons in actual occupation: the 2002 Act
- •15.4.6.1. Causal link between interest and occupation
- •15.4.6.2. Meaning of ‘actual occupation’
- •15.4.6.3. The ‘notice’ element
- •15.4.6.4. Can minors be in actual occupation?
- •15.4.6.5. Occupation of part
- •15.4.7. Complexity
- •Notes and Questions 15.3
- •15.5. Indemnity
- •15.5.1. Function of indemnity
- •15.5.2. Shortfall in the provision of indemnity
- •15.5.3. Cost
- •17 Leases and bailment
- •17.1. Introduction
- •17.2. Leases and bailments compared
- •17.2.1. Consensuality
- •17.2.2. Contract
- •17.2.3. Enforcement
- •17.2.4. Duration and purpose
- •17.2.5. Beneficial use
- •17.2.6. Proprietary status
- •17.2.7. Inherent obligations of the possessor
- •17.3. Leases
- •17.3.1. Nature of the lease
- •17.3.1.1. Duration: the four basic categories
- •The legal position
- •Length of fixed-term leases in practice
- •Commonhold as an alternative to the long residential lease
- •Commercial premises
- •Assignment and premature termination of fixed-term lease
- •17.3.1.3. Periodic tenancies
- •Nature
- •Contractual fetters on notice to quit
- •17.3.1.4. Tenancy at will
- •Tenancy at sufferance
- •Notes and Questions 17.1
- •17.3.1.5. Certainty of duration
- •Notes and Questions 17.2
- •Passage 2
- •Passage 3
- •Passage 4
- •Notes and Questions 17.3
- •17.3.1.7. The tolerated trespasser status
- •Notes and Questions 17.4
- •Notes and Questions 17.5
- •17.3.2. Alienability
- •17.3.2.1. Inherent alienability
- •Alienability of tenant’s interest
- •Subleases and other derivative interests granted by the tenant
- •Effect of termination of lease on derivative interests
- •Alienability of landlord’s interest
- •Concurrent leases and other derivative interests granted by the landlord
- •17.3.2.2. Restrictions on alienability
- •17.3.2.3. Statutory control of contractual restrictions
- •Notes and Questions 17.6
- •17.3.3. Effect of alienation on enforceability
- •17.3.3.1. Introduction: the basic principle
- •Automatic transmission of benefit and burden of proprietary terms: the privity of estate principle
- •Post-assignment liability: the privity of contract principle
- •17.3.3.3. Derivative interest holders
- •17.4. Bailment
- •17.4.1. Essential features of bailment
- •17.4.2. Categories of bailment
- •17.4.3. Characteristics of bailment
- •17.4.4. Liabilities of the bailee
- •Notes and Questions 17.7
- •17.4.5. Is bailment proprietary?
- •17.4.5.1. Possession and exclusivity
- •17.4.5.2. Alienability
- •17.4.5.3. Enforceability against third parties
- •17.4.5.4. Other proprietary indicia
- •18 Security interests
- •18.1. The nature and function of security
- •18.1.1. Nature of security
- •18.1.1.1. Terminology problems
- •18.1.1.2. Legal and equitable rights to redeem
- •18.1.1.3. Creation, attachment and perfection of security
- •18.1.2. Function
- •18.1.2.1. Right of first recourse
- •18.1.2.2. Attachment to the asset
- •18.1.2.4. The hostage function
- •18.1.2.5. Signalling, monitoring and control
- •18.1.3. Efficiency
- •18.1.4. Use of security
- •18.2. Forms of security
- •18.2.1. Property transfer securities: the mortgage
- •18.2.2. Possessory securities: pledge or pawn
- •18.2.3. Hypothecations: the charge
- •18.2.4. Liens
- •18.2.5. Property retention securities
- •18.2.6. Charge by way of legal mortgage
- •Notes and Questions 18.1
- •18.3. Control over the terms of the relationship
- •18.3.1. Equitable supervisory jurisdiction
- •18.3.2. The Kreglinger principles
- •18.3.3. Statutory intervention
- •Notes and Questions 18.2
- •18.4. Enforcement of security
- •18.4.1. Remedies
- •18.4.2. Possession
- •18.4.3. Sale
- •18.4.3.1. When the power arises
- •18.4.3.2. When the power becomes exercisable
- •18.4.4. Duties on enforcement
- •General principles
- •The handling of arrears: initial action taken by lenders
- •Alleviating arrears problems
- •The levying of charges on accounts in arrear
- •Methods of obtaining possession
- •Proceeds of sale
- •Indemnity insurance
- •Loss recovery procedures
- •Notes and Questions 18.3
- •16 Co-ownership
- •16.1. Introduction
- •16.2.1. Basic concepts
- •OWNERSHIP IN COMMON
- •JOINT OWNERSHIP
- •CONCURRENT INTERESTS IN FINANCIAL ASSETS
- •CONCURRENT INTERESTS IN LAND
- •Notes and Questions 16.1
- •Unity of possession
- •Unity of interest
- •Unity of title
- •Unity of time
- •16.2.2. A comparison of joint tenancies and tenancies in common
- •16.2.2.1. Four unities versus one
- •Notes and Questions 16.2
- •16.2.2.2. The right of survivorship (and how to avoid it)
- •Severance at common law
- •16.2.2.3. Acting upon one’s share
- •16.2.2.4. Mutual agreement
- •16.2.2.5. Mutual conduct
- •16.2.2.6. Statutory severance
- •Notes and Questions 16.3
- •16.2.3. Use of co-owned property
- •16.2.3.1. Land
- •12 THE RIGHT TO OCCUPY
- •13 EXCLUSION AND RESTRICTION OF RIGHT TO OCCUPY
- •Notes and Questions 16.4
- •16.2.3.2. Chattels
- •Notes and Questions 16.5
- •16.2.4. Sale and other dispositions of co-owned property
- •16.2.4.1. Land
- •Notes and Questions 16.6
- •16.2.4.2. Chattels
- •16.3. Other forms of co-ownership
- •16.3.1. Commonhold
- •16.3.2. Unincorporated associations
- •Notes and Questions 16.7
- •16.3.3. Extending the limits of co-ownership: public trusts
- •Bibliography
- •Index

Acquiring title by possession 433
their rights. Again, the focus is entirely on the hazards of the title owner, rather than on any merits of the user of the land:
. . . the owner may not even realise that a person is encroaching on his or her land. He or she may think that someone is there with permission and it may take an expensive journey to the Court of Appeal to discover whether or not this is so. (For a striking recent illustration, see J. A. Pye (Oxford) Ltd v. Graham [2001] EWCA Civ 117; [2001] 2 WLR 1293, below, paragraph 14.1, where the issue was whether what had initially been possession under licence (in that case a grazing licence) had ceased to be so.) In none of these examples is a person in any true sense sleeping on his or her rights. Furthermore, even if a landowner does realise that someone – typically a neighbour – is encroaching on his or her land, he or she may be reluctant to take issue over the incursion, particularly if it is comparatively slight. He or she may not wish to sour relations with the neighbour and is, perhaps, afraid of the consequences of so doing. It may not only affect relations with the neighbour but may also bring opprobrium upon him or her in the neighbourhood. In any event, even if the policy against allowing stale claims is sound, the consequences of it under the present law – the loss for ever of a person’s land – can be extremely harsh and have been judicially described as disproportionate.
It is difficult to see how the facts in the J. A. Pye (Oxford) case can be said to justify any of these observations, and again surprising to find the Court of Appeal’s conclusion, in the same case, that the operation of the law is not harsh and disproportionate, passed over in silence in favour of Neuberger J’s view that it is.
Stale claims in registered land
However, the kernel of the Law Commission and Land Registry necessary evil argument is that, even if – contrary to their apparent view – adverse possession is justifiable in relation to unregistered land because it furthers the policy of disallowing stale claims, the justification is removed in registered land. The implication is that claims never stale in registered land because we always know who the landowner is.
This claim is frequently made9 but it is not immediately obvious why it should be true. In unregistered land, disputes about the identity of the paper title holder have not been particularly common, at least over the last century when unregistered conveyancing has been relatively efficient, if not swift. It is not usual for adverse possessors to claim that title was in fact transferred to them by deeds now lost, or that for some other reason they actually do hold the paper title. In most reported adverse possession cases the identity of the paper owner is not in issue. Registration of title ensures that a person who relies on her paper title as entitling her to evict a possessor, can never be defeated by a claim that at some time in the past title was transferred to the possessor or a predecessor by deeds that are now lost. However, it settles no questions of significance
9See, for example, Martin Dockray, ‘Why Do We Need Adverse Possession’? (1985) Conveyancer 272, where, however, the issue is fully explored.

434 Property Law
in the common case of the opportunistic taker of vacant land, nor in cases where the adverse possession originated in possession which was or was thought to be lawful, nor even (since in our registration system boundaries are not guaranteed) in boundary dispute cases. In a perfect registration system it might be possible to eliminate cases arising because of parcels of land wrongly included or excluded from conveyances, but in the real registration world gaps and overlaps between adjoining registered titles do occur,10 and will continue to do so unless we move to a system where all titles are surveyed. In all these typical adverse possession cases the decision turns not on the identity of the paper title holder but on what people might have done or intended, either at the time when possession first moved from paper owner to possessor, and/or at some subsequent time. Evidence of such matters stales quickly, and it is for this reason that there should be some limitation period during which displaced paper owners must bring their claims to recover possession. The stale claims problem, properly understood, is therefore not significantly ameliorated by registration of title.
Stale claims under the 2002 Act
Ironically, the changes made to adverse possession law by the LRA 2002 seem likely to make the stale claims problem worse, in at least two ways. Under the 2002 Act an adverse possessor may apply to become the registered owner of the land in place of the ‘true’ owner after 10 years of adverse possession (LRA 2002 paragraph 1 Schedule 6). Since this is two years less than the 12 years prescribed under the old law it looks superficially like a step in the right direction of bringing matters to court quicker. However, this is misleading. On receipt of such an application the Land Registry must notify the registered proprietor,11 and may not register the applicant’s title if the registered owner objects within 65 business days.12 All stops will be pulled out to find the registered owner: the Land Registry must also notify any registered lessor, mortgagee or chargee13 and any other person who can satisfy them that they could be adversely affected14 so that the Land Registry can chase up the registered owner and spur him into action, and the Land Registry has itself said that it will usually arrange for its surveyor to inspect the land (at the squatter’s cost) when the original application is made and then notify any other person ‘known or suspected from other available information or our local knowledge to have become entitled to the estate affected’.15 If after all this the registered proprietor is rounded up and objects, the registered proprietor is given a further two years in which to bring possession proceedings to evict the squatter. It is only if he fails to do so within
10See, for example, Johnson v. Shaw [2003] EWCA Civ 894, Prestige Properties Ltd v. Scottish Provident Institution [2002] EWHC 330 (purchaser’s search certificate wrongly showed strip between titles, believed to belong to vendor, as unregistered when it fact it was registered, partly under one of the vendor’s titles but the rest under a neighbour’s title), Epps v. Esso Petroleum Co. [1973] 1 WLR 1071, ChD, and Chowood Ltd v. Lyall [1930] 2 Ch 156.
11LRA 2002 para. 2(1)(a) Sched. 6. There is a preliminary hurdle for the applicant – she must first satisfy the Land Registry that she has a prima facie case.
12Land Registration Rules 2003, r. 189.
13LRA 2002 para. 2(1)(b)–(e). 14 Land Registration Rules 2003, r. 194.
15 Land Registry Practice Guide 4 (March 2003) paras. 5.1 and 5.3.

Acquiring title by possession 435
the two year period that the squatter becomes entitled to be registered as proprietor in his place. There is therefore every incentive for the squatter to delay making an application for as long as possible – the longer she leaves it, the more likely it will be that the registered proprietor will prove to be untraceable. Equally, if the squatter does not make the first move to regularise her position, there is no incentive for the registered proprietor to bring matters to a head by bringing possession proceedings against her: however long the registered proprietor delays, he will never jeopardise his certainty of success.
Distinguishing the ‘good’ squatter from the ‘bad’ squatter
The second way in which the 2002 Act may well make the stale claims problems worse is by embarking on the brave but perhaps foolhardy enterprise of trying to distinguish the good squatter from the bad squatter. It has done this by providing exceptions to the general rule: in these exceptional cases the applicant will be entitled to become registered as proprietor after ten years notwithstanding objections by the paper owner. This will occur whenever one of the three ‘conditions’ set out in paragraph 5(2)–(4) of Schedule 6 to the 2002 Act applies:
(2)The first condition is that –
(a)it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and
(b)the circumstances are such that the applicant ought to be registered as the proprietor.
(3)The second condition is that the applicant is for some other reason entitled to be registered as the proprietor of the estate.
(4)The third condition is that –
(a)the land to which the application relates is adjacent to land belonging to the applicant,
(b)the exact line of the boundary between the two has not been determined under rules under section 60,
(c)for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and
(d)the estate to which the application relates was registered more than one year prior to the date of the application.
It is at this point only that consideration of the merits of the squatter appears, but even at this point the issue of worth arising out of long user does not arise. Instead, the criterion is, essentially, reasonable belief in authenticity of title, which is quite a different matter. Distinguishing the good squatter from the bad squatter by reference to this criterion may or may not be a good idea in principle, and indeed we know that it can be done in practice. In 1983, Richard Helmholz reviewed the 850 appellate decisions on adverse possession in the United States reported since 1966 and demonstrated that, despite a law which made good faith on the part of the squatter irrelevant,

436 Property Law
‘good guy’ squatters consistently won and ‘bad guy’ ones consistently lost16 – which could be described as the courts making the distinction for themselves without any help from the law. There are certainly some English cases which illustrate a similar tendency.17 More orthodoxly, other legal systems appear to achieve the same objective by having a specific good faith requirement, deriving from Roman law.18
However, there are two major objections to the way in which it has been done by the 2002 Act provisions. The first, not strictly relevant here, is that this is not a very good way of distinguishing the ‘good guys’ from the ‘bad guys’ even accepting the authenticity of title criterion. The first two conditions appear otiose (any applicant satisfying either of these conditions ought to be entitled to rectification of the register without having to rely on having been in adverse possession for a prolonged period) whereas the third is very narrowly confined, covering only the genuine boundary dispute and not extending to any other case in which the applicant acted in good faith in the sense of believing herself to be entitled to be there for reasons other than the mere fact of having actually been there for a prolonged period.
Problems of proof
However, the more important objection is that these conditions entitling long users to become registered owners – the first and third in particular – are almost certainly going to require proof of events and intentions of both parties going back much longer than the ten years specified, since the genuineness of a belief held for the last ten years will almost certainly require explanation of intentions and events occurring earlier, probably at the time when the applicant’s possession first became adverse. For reasons already given, it seems likely that adverse possession cases will not come before the courts until very many years after the squatter first took possession – far more than ten. Are we really expecting the courts to be able to ascertain whether, decades ago, a person acquired a mistaken belief and then sustained it over the decade preceding the application?
It is no help to say that the burden of proof is on the squatter, and so only in the clearest and most meritorious of cases will a squatter be able to take advantage of these ‘good faith’ exceptions. We would do well to remember the tennis match analogy provided by Richard Epstein in support of his argument that lapse of time favours the person with the least meritorious case:
To be sure, one could try to compromise the difference by imposing new or heavier burdens of proof upon the plaintiff . . . Yet these intermediate solutions, taken by themselves, are defective. The passage of time does not work to the equal
16R. Helmholz, ‘Adverse Possession and Subjective Intent’ (1983) 61 Washington University Law Quarterly 331, although see also R. A. Cunningham, ‘More on Adverse Possession: A Rejoinder to Professor Helmholz’ (1986) 64 Washington University Law Quarterly 1167.
17For an example of articulated bias against the bad faith squatter see Tecbild Ltd v. Chamberlain (1969) 20 P&CR 633, 643, CA, where Sachs LJ described Mrs Chamberlain’s claim to the field as an ‘impudent attempt to gain £1,000-worth of property without having any right to it in law’ and said that it ‘rightly failed’.
18See further Helmholz, ‘Adverse Possession’.

Acquiring title by possession 437
disadvantage of both sides. Indeed, to say that the change of time-frame has no effect at all on the outcome is a contradiction in terms. To the contrary, the passage of time, like any other reduction in the quality of evidence, produces a systematic bias for the weaker side.
To see the point, one can think of a tennis match between two professionals. Normally, one expects the better player to win. Yet, if the game is played on a rough surface, an element of randomness is introduced into the contest, shifting the odds back towards even, which thus works systematically in favor of the inferior player. In the extreme case (for instance, where the game is played in a junkyard or on the side of a cliff), the random elements completely dominate the skill elements; and the results of the game have little correlation to the players’ skills. Litigation is like that. The passage of time tends to help the party with the weaker case by giving greater prominence to the random elements of the case. The moving party sues because there is some scrap of evidence that supports the claim, while all evidence on the other side is lost or misinterpreted. To avoid these situations, at some point it becomes necessary to end litigation, not to redefine its parameters. Hence the case for the statutes of limitations that lie at the core of the modern judicial doctrines of adverse possession.19
Problems of proof of distant events in this context are exacerbated where corporate owners are involved, a significant factor given the steady increase in incorporation.20 For a variety of reasons, corporate owners can make poor witnesses of events that happened in the past, and even worse witnesses of their own past intentions. Because corporations almost necessarily intend and act by individuals acting in concert and therefore presumably in communication with each other, they probably produce more contemporaneous written and oral evidence of their intentions and actions than most individuals acting in their personal capacity. However, there is a tendency for little of this to survive long, perhaps because efficient corporations have less pressing motives to bear the expense of archiving material than individuals have, or because most companies have much shorter lives than most individuals,21 or because their lives
19R. A. Epstein, ‘Past and Future: The Temporal Dimension in the Law of Property’ (1986) 64
Washington University Law Quarterly 667.
20The number of companies in England and Wales registered on the Companies Register increased from 1,250,300 at the start of 1998–9 (itself an increase of 7 per cent/8 per cent on the previous year) to 1,569,400 at the start of 2002–3: DTI Report for the year ended 31 March 2003, Companies in 2002–2003 (July 2003) (‘the 2003 DTI Report’), Table A1. Table A4 charts the steady rise in the annual number of new incorporations from 1862 (5,000) to 2003 (293,200).
21The 2003 DTI Report gives the average age of companies on the register at 31 March 2003 as 9.5 years, with 90 per cent of all registered companies having been registered in the last 24.3 years: ibid., Table A5. Listed companies (perhaps more likely to be significant property holders than small companies) show a similar age profile: of the 1,543 companies listed on the London Stock Exchange as at 27 February 2004 only 3 had attained the biblical life span for humans of three score and ten; the vast majority were under the age of 50 (1,414 out of 1,543), nearly two-thirds were under 14 years old (957 out of 1543) and 283 were under the age of 4: website of the London Stock Exchange.