Hello Reader, this time Tabir Hukum will discuss about acquiring interests by adverse possession in property law.
At common law, the person who is seised of a freehold estate in land is the person entitled to legal possession of the land. In ordinary parlance, we would call that person the owner, or the title holder. Registration of title gives notice to the world of the title holder's claim to the land. But if some one other than the title holder has actual physical possession of the land, without the title holder's permission, then that person's presence on the and is an assertion to the world of another claim to hold the rights of an owner.
Under the doctrine of adverse possession, the title holder has a limited time period to dispute the assertion of ownership based on possession, through taking legal action to remove the person in possession. That time period is specified in the applicable statute of limitations, and in the Canadian provinces and territories, it is generally ten or 20 years, with a longer limitation period, up to 60 years, if the title holder is the Crown. If the title holder fails to take action against the adverse possessor within the statutory time limit, then the title holder loses the right to take any action, and the adverse possessor acquires the rights of ownership.
In effect, the doctrine of adverse possession requires title holders to "use it or lose it", at least in contexts in which someone else is using the land. Most commonly, though, the doctrine is invoked not to give a squatter title, but to settle title problems, where the legal description of particular parcel of land does not match the physical boundaries maintained between two neighbours. Indeed, the doctrine is defended as helping ensure certainty of title and therefore lower transaction costs on land transfers.
To establish rights by adverse possession, the non title holder has to prove sufficient possession of the land for a sufficient time period. The latter is determined by the relevant statute of limitations, but the former is determined by looking at the quality of the possession that is reasonable given the nature of the land claimed. Possession must be adverse, that is, without the permission, and to the exclusion, of the title holder, and sufficiently open and notorious that it will (or should) be obvious to all. Possession must be actual physical occupation - what some judges call pedis possessio or pedal possession - evidenced by physical alterations to the land, showing the adverse possessor's control over the land. Thus, it is much more difficult to acquire rights by adverse possession to large tracts of undeveloped land than to the two-foot strip along the side of your suburban lot that you have been using as part of your driveway.
There is one exception to the requirement for actual physical possession. Adverse possessors who establish actual physical occupation of part of a parcel of land, in the mistaken, but reasonably-held, belief that they have the right to legal possession, are said to have colour of title. Just as title holders have constructive possession without physical possession of the whole of what of what they own, so adverse possessors in possession of the whole. Constructive possession, of course, is defeated by proof of actual possession - otherwise, there would be no doctrine of adverse possession.
Most land titles systems prohibit claims based on adverse possession, in order to maintain the completeness and accuracy of the title record in the land titles office. When a government decides to convert its land registry to a land titles system, it usually imposes quite stringent requirements for proving the validity of the interests in land claimed in documents presented for first registration will in the land titles system. Often, the person applying for first registration will have to resort to the doctrine of adverse possession to establish precise boundaries; once the title documents are accepted for registration in the land titles system, however, further claims based on adverse possession are barred.
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Books : In Writing Tabir Hukum :
Alan M. Sinclair and Margaret E. McCallum, 2005. An Introduction to Real Property Law (Fifth Edition). LexisNexis : Canada.