The fiction of adverse possession

Occupation of land by a squatter in England is seen as a wrong, and the squatter a trespasser. This is recognised as adverse possession and this doctrine has been established by iteration and reiteration over the long history of English land law with the sole intention of protecting the real property of the landed classes. The enduring nature of land law can also be used to demonstrate that the doctrine by which control of property is understood has changed little throughout this history. The purpose of this thesis is to explore and demonstrate that adverse possession does not exist and this is done by using an alternative exploration of the facts. This is by an extended literature review, analysis of common and case law, reappraisal of the historical background, and a review of property theorists. Consideration of judicial discourse and authoritative speech, the power of the landed classes and how these influenced the law of land are also evaluated. Finally scrutiny of trespass and the Limitation Act 1833 and Land Registration Act 2002, bring the arguments up to date. Crucial to this thesis is the assumption that occupation of land with the necessary intent creates a title to that land. This can be, and is, traced back through the history of English land law where it has been demonstrated that the doctrine by which property is understood has changed little over this long history. It has been established that the doctrine of adverse possession is a fiction developed by the courts to protect the most important possession of the English landed class – their land. It has also been demonstrated that the squatter is not a trespasser, a land thief or possessor of wrong. This is significant when the effectiveness of the Land Registration Act 2002 and Legal Aid, Sentencing and Punishment of Offenders Act 2012 are considered.

Name dc:type.qualificationname

Ph.D.

Level dc:type.qualificationlevel

doctoral

Grantor dc:publisher.institution

Lancaster University

Year dc:date.issued

2018

Authors dc:creator

• Nicol, Michael
• Mayfield, Benjamin
• Xu, Lu