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Understanding Adverse Possession: A Delicate Balance of Property Law

Understanding Adverse Possession: A Delicate Balance of Property Law

Adverse possession, an ancient legal doctrine, is often misunderstood by many. Sometimes referred to as “Squatter’s Rights,” it allows an individual to claim ownership of the land they have occupied without permission if certain stringent conditions are met. This principle is not relegated to a single corner of the globe but is recognized by a diverse array of countries, including the UAE, India, and United Kingdom, albeit with variations reflective of their distinct social and legislative frameworks.

 

The Concept of Adverse Possession

The conditions under which one may claim adverse possession are rooted, amongst others, in the uninterrupted and nonconsensual use of property. The law sees the dynamic use of land as favorable versus the neglect of landowners which may lead to dereliction. In the United Arab Emirates (UAE), for instance, one can attain title to movable or unregistered immovable property through 15 years of unchallenged possession, a concept codified in Article 1317 of the Federal Law No. (1) 1987 Concerning Civil Transactions Law of the UAE (Civil Code). It provides:

“A person who possesses a movable or an unregistered immovable property considering himself the title owner thereof, or possesses a real right on a movable or on an unregistered immovable property, and his possession continues without interruption for fifteen years, shall not be actionable in property or in rights in rem by any person who has no legitimate justification.”

Other jurisdictions, such as India, require 12 years for private property and 30 years for government-owned land. In United Kingdom, the changes brought about by the Land Registration Act 2002 have made it harder for squatters to claim registered land without rigorous legal processes and potential opposition from existing landowners.

 

The Advantages of a Controversial Doctrine

Adverse possession addresses several societal needs, including the resolution of discordant land titles and the clarification of ownership rights, thus ensuring that land does not fall into disuse. It also indirectly forces landowners to be vigilant and proactive in managing their property. Remarkably, in jurisdictions like England and Wales, adverse possession also gives a semblance of rights to squatters, a compassionate nod to the plight of the homeless.

 

Critiques and Challenges of Adverse Possession

Despite its benefits, adverse possession is not without its issues. The application of the doctrine can result in involuntary loss of property rights for inattentive owners. Good faith and the possessor’s intention are crucial factors, yet interpretation varies, leading to potential injustices. If one is not duly attentive, the law might undeservedly reward a trespasser (instead of condemning him/her) with title over rightful ownership.

 

Manifesting a Claim: The Process

The procedural act of claiming adverse possession requires a set of conditions that depend heavily on the jurisdiction,  status of the registration of land, no state ownership, a period of uninterrupted possession, and belief of ownership.

However, it may be noted that in rental situations, as the occupant operates under a legal agreement, the tenancy precludes any claims of adverse possession. Similarly, in any other scenario where it can be proven that the possession was with the consent of the owner, a claim of adverse possession may not lie.

Specifically, in UAE, amongst others, the following key principles may apply to a claim for adverse possession:

  • The land should be unregistered – meaning that it should not be registered in the name of a person in any of the land registries e.g. Dubai Land Department (Article 1317 Civil Code);
  • The land should not be owned by the State or public organisations or charitable waqfs (Article 1319 Civil Code);
  • The possession must be uninterrupted for 15 years (Article 1317 Civil Code);
  • Where the possession is in good faith and on the basis of a valid cause (document evidencing transfer of title by inheritance or legacy, a gift with or without consideration, or sale and barter), the possession must be uninterrupted for 7 years (Article 1318 Civil Code);
  • The person claiming ownership of land should consider himself the title owner (Article 1317 Civil Code); and
  • The possession must not be with permission or by an act which is merely tolerated (Article 1307 Civil Code).

 

Landlord’s Countermeasures

Upon learning of a potential adverse possession claim, the landlord must act decisively. Regular inspections, swift legal action, and ensuring proper registration of the land are the necessary steps to protect one’s property. It’s vital for landowners to both interrupt any prolonged unauthorized occupancy and also conduct due diligence when acquiring properties to preempt disputes.

 

Towards Law Reform

Given the complexities of adverse possession, legal experts have called for reforms. They suggest reexamining the doctrine’s relevance in modern society, potentially limiting claims to instances of good faith occupation. There’s also the idea that property owners should be considered vigilant if they maintain their property and fulfill responsibilities like paying taxes, even if they don’t have physical possession. Furthermore, introducing fair compensation for real owners who lose their property under adverse possession could provide a more balanced approach to this age-old law.

 

In conclusion, adverse possession remains a divisive yet integral part of property law, blending ancient legal concepts with the needs of contemporary society. It is a complex area of law requiring a delicate balance to serve both the stability of land ownership and the fair utilization of property. As societies evolve, so must the statutes that underscore the sanctity and dynamism of property rights.


The authors of this insight are Faizan Daud and Aqsa Adil. For more information contact them at:

Faizan Daud

Associate

faizan.daud@galadarilaw.com

Aqsa Adil

Trainee Lawyer

aqsa@galadarilaw.com