Adverse possession is an informal method of acquiring land ownership in England and Wales. There has been much case law determining the requirements that a squatter must prove to make a claim for adverse possession, and in the 21st century there has been significant legislation, and significant case law dealing with the impact of the Human Rights Act 1998 on the law in this area.
Please note that although critical comment should form part of this essay, the focus of the
essay should primarily be on the law. Your essay should not be entirely written as a critical
analysis without legal detail. There should be detailed reference to the law.
Essay Question
‘Title by adverse possession seems to resemble ‘title by theft or robbery, a punitive method of acquiring land without paying for it.’ Wrongful taking eventually generates rightful title. Yet-historically-almost all systems of law have conceded that, irrespective of the formal or documentary record of ownership, uncontested long possession of land must ultimately confer a good title upon the actual possessor.
Certain powerful (and overlapping) policy arguments have lent support to the phenomenon of adverse possession. Only recently have these arguments lost their powerful hold.’
Elements of Land Law, Gray and Gray, 5th ed.2009
Describe and critically assess the current state of the law on adverse possession.
Does the law strike a fair balance? Is it justifiable for the law to continue to recognise acquisition of title by adverse possession?
Guidance Notes
Introduction
You should introduce the concept of adverse possession and the historical theory behind it.
You should summarise developments in the law, the issues you will be dealing with, and the
perspective that your essay will take.
Main Body
Although the structure and organisation of the essay is a matter for you, the main body of the
essay should explain, using illustrations from case law, the conditions required to make a
claim for adverse possession and the legislative rules on adverse possession, including the effect of legislative changes, and why such changes were deemed necessary. Your essay should not just be descriptive. It should also include critical assessment of the conditions,
case law and legislation, and critical evaluation of whether the law strikes a fair balance and whether the law should even continue to recognise title by adverse possession.
You should also discuss the effect of the Human Rights Act 1998 on this area of law, and critically assess the important case law that has been decided in both the national and European courts in relation to this.
Conclusion
This section should be a brief summary of the issues and arguments, and a final statement of your opinion on the current law and whether it strikes a fair balance, and whether you think adverse possession is ever justifiable.
