WHAT IS THE DOCTRINE OF
ADVERSE POSSESSION? – IS IT NOT THE RIGHT TIME TO
AMEND THE LAW OF ADVERSE POSSESSION IN INDIA?
By
Dr T Padma., LLM., Ph D (Law)
kethepadma@gmail.com
“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.”
-Justice Holmes
Introduction
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.
Historical background[1]
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.
Conclusion
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.
Hence, there is an
urgent need for a fresh look of the entire law on adverse possession. The
policy makers should immediately consider amending the law of adverse
possession by making suitable changes.
[Published
in Andhra Law Times / Fortnightly
February, 2012]
[1] Excerpts
from the Judgment of the Supreme Court dated 30/09/2011 in the case of State of
Haryana Vs Mukesh Kumar & Ors
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