By Dr T Padma., LLM., Ph D (Law)
“Man, like a tree in the cleft of a rock, gradually shapes his roots to the surroundings, and when the roots have grown to a certain size, can’t be displaced without cutting at his life.”
The doctrine of adverse possession has troubled a great many legal minds. Adverse possession allows for a ‘wrongful’ possessor of land to have their interests ripen into a title if they can demonstrate active possession for a certain time frame. Adverse possession imposes a temporal limit on the title‐holder to exercise their moral right to obtain rectification for trespass on their land. The doctrine of adverse possession prevents such individuals from facing grave hardship due to their reliance and attachment to the land after they have occupied it for a long period of time. In other words, adverse possession allows a trespasser – a person guilty of a tort, or even a crime, in the eyes of law - to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. Prima facie this is unfair to the title‐holder. If the Government instrumentalities who are supposed to be the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible. Therefore, the time has come for change.
This Article will examine whether this age‐old justification is still relevant in India in the 21st century and whether the doctrine should be retained.
The concept of adverse possession was born in England around 1275 and was initially created to allow a person to claim right of “seisin” from his ancestry. Many felt that the original law that relied on “seisin” was difficult to establish, and around 1623 a statue of limitations was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property. This early English doctrine was designed to prevent legal disputes over property rights that were time consuming and costly. The doctrine was also created to prevent the waste of land by forcing owners to monitor their property or suffer the consequence of losing title.
The concept of adverse possession was subsequently adopted in the United States. The doctrine was especially important in early American periods to cure the growing number of title disputes. The American version mirrored the English law, which is illustrated by most States adopting a twenty-year statute of limitations for adverse possession claims. As America has developed to the present date, property rights have become increasingly more important and land has become limited. As a result, the time period to acquire land by adverse possession has been reduced in some States to as little as five years, while in others it has remained as long as forty years. The United States has also changed the traditional doctrine by preventing the use of adverse possession against property held by a governmental entity.
During the colonial period, prior to the enactment of the Bill of Rights, property was frequently taken by states from private land owners without compensation. Initially, undeveloped tracts of land were the most common type of property acquired by the government, as they were sought for the installation of public road. Under the colonial system it was thought that benefits from the road would, in a newly opened country, always exceed the value of unimproved land.
The doctrine of adverse possession arose in an era where lands were vast particularly in the United States of America and documentation sparse in order to give quietus to the title of the possessor and prevent fanciful claims from erupting. The concept of adverse possession exits to cure potential or actual defects in real estate titles by putting a statute of limitation on possible litigation over ownership and possession. A landowner could be secured in title to his land; otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could come forward with a legal claim on the property. Since independence of our country we have witnessed registered documents of title and more proper, if not perfect, entries of title in the government records. The situation having changed, the statute calls for a change.
Circumstances which result in ‘Wrongful’ Possessors treating their Land as their Own
i) Abandoned land
As discussed above, adverse possession has its roots in Medieval England where there was no central registration system. Historically, one could squat on abandoned land for years without meeting the Title‐holder. However, with the development of a computarised registration system, it was no longer difficult for an individual person resolved to reside on or to develop land to enquire after the title‐holder at the Land Title’s office and complete the necessary transactions for legal usage of the land.
ii) Missing owners
With missing owners the situation is less clear, although a number of statutes provide suitable remedies in such circumstance. In South Australia, occupation can lead to a registrable title if the occupier satisfies the Limitation of Actions Act 1936 (SA) and registered persons make no objection after reasonable efforts are made to contact them. This is distinct from adverse possession actions, where the adverse possessor can obtain title even if the title‐holder objects to it. This Act is especially important in relation to depleted and abandoned mining lands where the previous title‐holders are companies that no longer exist. It also provides an avenue of recourse for people who have stayed on the mining land, as well as for family members in cases where heirs cannot be located. This balances the moral right of the occupier who has invested and relied on the property and the rights of the title‐holder who objects to the loss of their title.
iii) Incomplete, informal and unregistrable transfers
Adverse possession has historically been used as a tool to rectify uncertain records in cases where transfers are incomplete, informal and unregistrable. In this situation, the occupiers who have given consideration for the land might have to fend off successors with defective documents. For example, if A has given consideration to B for land but the transaction was not registered completely, B will still own the land on paper. After A has stayed on the land for many years, A can defend his right to the land against B through adverse possession. However, the use of the doctrine in these situations fails to protect A’s reliance on the land. Through adverse possession, A’s claim to the land is only recognised after twelve years. Moreover, if B had initially willed the paper title to his son, C, the twelve‐year time frame would accrue once C received paper title; it would not be reasonable to expect C to defend the land against squatters until he received paper title. Adverse possession does not, therefore, make records more certain. On the contrary, it is arguably one of the primary reasons why records are inaccurate today.
iv) Boundary disputes
Boundary disputes were historically settled through adverse possession. Part‐parcel adverse possession is one of the few tools that can correct boundary disputes in circumstances where there are differences between the true (registered) boundaries and the occupational (unregistered) boundaries. Sometimes wrongful possessors assume possession of land by erecting part of a building or a footpath. Through adverse possession, the wrongful possessor could transfer that parcel of land to their land title. Such problems were often due to unprofessional surveyors and rudimentary surveying techniques. Improved surveying techniques and increasing affordability have minimised such problems in recent times.
Requirements for Adverse Possession
The adverse party is called the disseisor, meaning one who dispossesses the true owner of the property. The disseisor must openly occupy the property exclusively, keeping out others, and use it as if it were his own. Some jurisdictions permit accidental adverse possession as might occur with a surveying error. Generally, the openly hostile possession must be continual (although not necessarily continuous or constant) without challenge or permission from the lawful owner, for a fixed statutory period to acquire title. Where the property is of a type ordinarily occupied only during certain times (such as a summer cottage), the disseisor may need to have only exclusive, open, and hostile possession during those successive useful periods, making the same use of the property as an owner would for the required number of years.
A minimum five basic conditions to be met to perfect the title of the disseisor are:
i) Actual possession of the property
The disseisor must physically use the land as a property owner would, in accordance with the type of property, location, and uses. Merely walking or hunting on land does not establish actual possession. In Cone v. West Virginia Pulp & Paper, the United States Court of Appeals held that Cone failed to establish actual possession by occasionally visiting the land and hunting on it, because his actions did not change the land from a wild and natural state. The actions of the disseisor must change the state of the land, as by clearing, mowing, planting, harvesting fruit of the land, logging or cutting timber, mining, fencing, pulling tree stumps, running livestock and constructing buildings or other improvements.
ii) Open and notorious use of the property
The disseisor's use of the property is so visible and apparent that it gives notice to the legal owner that someone may assert claim. It must be of such character that would give notice to a reasonable person. If legal owner has knowledge, this element is met; it can be also met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about.
iii) Exclusive use of the property
The disseisor holds the land to the exclusion of the true owner. If, for example, the disseisor builds a barn on the owner's property, and the owner then uses the barn, the disseisor cannot claim exclusive use. (There may be more than one adverse possessor, taking as tenants in common, so long as the other elements are met.)
iv) Hostile or adverse use of the property
The disseisor entered or used the land without permission. Renters, hunters or others who enter the land with permission are not hostile. The disseisor's motivations may be viewed by the court in several ways:
a) Objective view—used without true owner's permission and inconsistent with true owner's rights.
b) Bad faith or intentional trespass view—used with the adverse possessor's subjective intent and state of mind (mistaken possession in some jurisdictions does not constitute hostility).
c) Good faith view—a few courts have required that the party mistakenly believed that it is his land. All views require that the disseisor openly claim the land against all possible claims.
v) Continuous use of the property
The disseisor must, for statute of limitations purposes, hold that property continuously for the entire limitations period, and use it as a true owner would for that time. This element focuses on adverse possessor's time on the land, not how long true owner has been dispossessed of it. Occasional activity on the land with long gaps will fail the test of continuous possession. Courts have ruled that merely cutting timber at intervals, when not accompanied by other actions that demonstrate actual and continuous possession, fails to demonstrate continuous possession. If the true owner ejects the disseisor from the land, verbally or through legal action and after some time the disseisor returns and dispossesses him again, then the statute of limitation starts over from the time of the disseisor's return. He cannot count the time between his ejection by the true property owner and the date on which he returned.
vi) Specific requirements for adverse possession
A court may require some combination of the following as elements of the basic requirements for adverse possession, which of these applies varies by jurisdiction and may be a result of interpreting common law or of statute.
a) Claim of title or claim of right.
The Supreme Court of the United States has ruled that the mere intent to take the land as one's own constitutes ‘claim of right’. Other cases have determined that a claim of right exists if the person believes he has rightful claim to the property, even if that belief is mistaken. A negative example would be a timber thief who sneaks onto a property, cuts timber not visible from the road, and hauls the logs away at night. His actions, though they demonstrate actual possession, also demonstrate knowledge of guilt, as opposed to claim of right.
b) Improvement, cultivation, or enclosure
This includes Payment of property taxes, etc., as may be required by statute. Both payments by the disseisor and by the true owner are relevant.
Effect of Adverse Possession
A disseisor will be committing a civil trespass on the property he has taken and the owner of the property could cause him to be evicted by an action in trespass ("ejectment") or by bringing an action for possession. All common law jurisdictions require that an ejectment action be brought within a specified time, after which the true owner is assumed to have acquiesced. The effect of a failure by the true landowner to evict the adverse possessor depends on the jurisdiction, but will eventually result in title by adverse possession.
In some jurisdictions (such as England and Wales), the title of the landowner will be automatically extinguished once the relevant limitation period has passed. This process now applies only to unregistered land.
In other jurisdictions, the disseisor acquires merely an equitable title; the landowner is considered to be a trustee of the property for the disseisor.
Adverse possession extends only to the property actually possessed. If the original owner had a title to a greater area (or volume) of property, the disseisor does not obtain all of it. The exception to this is when the disseisor enters the land under a colour of title to an entire parcel, his continuous and actual possession of a small part of that parcel will perfect his title to the entire parcel defined in his colour of title. Thus a disseisor need not build a dwelling on, or farm on, every portion of a large tract in order to prove possession, as long as his title does correctly describe the entire parcel.
In some jurisdictions, a person who has successfully obtained title to property by adverse possession may (optionally) bring an action in land court to "quiet title" of record in his name on some or all of the former owner's property. Such action will make it simpler to convey the interest to others in a definitive manner, and also serves as notice that there is a new owner of record, which may be a prerequisite to benefits such as equity loans or judicial standing as an abutter. Even if such action is not taken, the title is legally considered to belong to the new titleholder, with most of the benefits and duties, including paying property taxes to avoid losing title to the tax collector. The effects of having a stranger to the title paying taxes on property may vary from one jurisdiction to another.
We inherited this law of adverse possession from the British. The Parliament should consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest. If the Government instrumentalities are making any attempt to possess land adversely, as we have seen recently in number of cases, it is nothing but a testament to the absurdity of the law and a black mark upon the justice system’s legitimacy. The Government should protect the property of a citizen – not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on property. While it may be indefensible to require all adverse possessors – some of whom may be poor – to pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases. The Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within a set range of rates so as to tailor the compensation to the equities of a given case.
The Parliament must seriously consider at least abolishing ‘bad faith adverse possession’, i.e., adverse possession achieved through intentional trespassing. Actually believing it to be their own could receive title through adverse possession sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief.
In case, the Parliament decides to retain the law of adverse possession, the Parliament might simply require adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12. Such an extension would help to ensure that successful claimants have lived on the land for generations, and are therefore less likely to be individually culpable for the trespass (although their forebears might). A longer statutory period would also decrease the frequency of adverse possession suits and ensure that only those claimants most intimately connected with the land acquire it, while only the most passive and unprotective owners lose title.
Law and Justice, more often than not, happily coincide only rarely we find serious conflict. The archaic law of adverse possession is one such. A serious re-look is absolutely imperative in the larger interest of the people. It is indeed a very disturbing and dangerous trend and it must be arrested without further loss of time in the larger public interest. No Government Department or Public Undertaking should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens.
[Published in Andhra Law Times / Fortnightly