The Social Contract is thought to have laid the groundwork for our legal system and government. People from the State of Nature banded together and urged the government for better protection of basic rights, i.e., rights granted by nature: (1) The right to life, (2) the right to liberty, and (3) the right to property. An individual or group of individuals (government) vested with the authority to protect each individual's rights. But what if the law itself vests the right of ownership of your property to a trespasser? Is it even plausible? Yes! This is something we will learn about in this article.
The doctrine of adverse possession is discussed in this article. Many of us may be familiar with the legal jargon that can force your property out of your hands, but others may not. As a result, we need a deeper grasp of the doctrine of Adverse Possession. The doctrine of adverse possession as well as the requirements for asserting adverse possession in a court of law has been delved into here. Finally, it discusses the benefits and drawbacks of the notion of adverse possession.
Adverse possession is one among the four ways by which ownership can be acquired i.e., ownership by operation of law. It is revamping of actual possession, without rights of ownership, into the true ownership after a period of time as defined by law. Adverse possession is described as unimpeded and continuous actual possession of a property for against the original owner's rights and interests.
It has been a long time since the doctrine was established. “If a chieftain or a person leaves his house, garden, and field and someone else takes possession of it and uses it for three years, and then the main owner returns and claims his house, garden, and field, it shall not be granted to him, but the person who has taken custody of it and used it shall continue to use it,” - the Code of Hammurabi, written around 2000 B.C. In England, the adverse possession was formalised prematurely in the Statute of Westminster. Presently, every jurisdiction recognises this doctrine.
Because adverse possession is such a serious matter, it was subjected to stringent guidelines. The following are the qualifications and requirements for adverse possession:
- There should be full and actual possession: Actual possession of a bale of land is one which turns into ownership. Thus, a person in question needs to have actual possession of the property. Actual possession of a piece of land denotes power over that land, allowing it to be renovated or restyled at the whim of the proprietor. The change must be noticeable and significant. For example, a person who owns a business adjacent to a vacant plot of property, whose owner lives in another nation, utilises the adjacent land as a storage area for extra items in his shop without altering or changing the adjacent land. This usage of contiguous land alone will not constitute actual possession.
- There should be open and exposed: Ownership is a right in rem, which means that no one else has the right to interfere with the enjoyment of that right. As a result, adverse possession, which is the right of ownership developed over time, necessitates that a reasonable man in society be aware of it. It should not be a secret possession. There is no adverse possession if it is done secretly, but it must be done openly.
- It must be hostile to the original or true owner and exclusiveness: The true owner must be barred from using the property; not in a violent sense - but in the sense that he cannot be a partial user of the property or piece of ground over which adverse possession is asserted. Adverse possession necessitates that the land be exclusively owned by the individual claiming adverse possession. There will be no generous land sharing with the general public or the original owner.
- Continuous possession and Statutory period: A possession doesn’t qualify as adverse possession if it is not continuous or intermittent. There is a framed time limit by a State by law, known as statutory period. So, the possession is required to be continuous while that statutory time period completed. The statutory period can be as long as 12 years to 20 years depending on different jurisdictions. For example, in India there has to be 12years of adverse possession, and 30 in case of government property. Numerous jurisdictions as well permit an adverse possessor to "boot on" his or her adverse possession period than that of a previous possessor. If an owner is insane, infant or lacks capacity, then the statutory period will not begin but if any of these above mentioned conditioned is suffered by true owner during the continuity of statutory period i.e., the condition affects the owner during the statutory period, then the statutory period will not be tolled and will continue uninterrupted.
- Absence of permission: The true owner should not have granted permission to the possessor claiming title through adverse possession to use the property in question. Possession is not deemed hostile if a proprietor has granted permission to utilise the property. As a result, the genuine owner need not be notified of adverse possession on his property.
- Absence of violence or legal measures: It is essential that the rightful owner has not exhausted all options for regaining possession of the property in question. That means the genuine owner should not have attempted to eject the adverse possessor from his property using physical violence or legal measures, such as going to court.
The rationale for adverse possession is one of the merits of adverse possession. The logic is that a piece of land or property should not be kept vacant for an extended period of time. The tittle of the property should not be left in question for longer duration. If society will flourish by the use of orphan land, when real or true owner does not use the land or property in question for a prolonged period. Furthermore, the adverse possession is justified on the principles of equity does not help those who sleep over their rights. A land is precious and should be used. If the owner is not caring for the property, it is preferable to hand it over to someone who will. As a result, the law mandates that the land be handed to someone who will care for it and be given the right to own it.
Adverse possession provisions are equivalent to legalising theft, which encourages and legalises trespassing. This demonstrates an unfair rule that protects a trespasser while putting pressure on the true owner to renounce his title and right over the property or land just because he did not act quickly enough to retrieve something that is already his. While it is based on the idea that no one may claim justice and equity while sleeping on their rights, the doctrine legalises and protects someone who obtained land by trespassing. A windfall for a crooked party who has illegally seized the home of the rightful owner.
Furthermore, one flaw in the rule of adverse passion is the absence of objectivity in determining what constitutes open, continuous, hostile, exclusive, and actual. Due to their great subjectivity, it is difficult for courts to act wisely and allow them to legalise unlawful possession.
To summarise, the doctrine of adverse possession balances out the rights of both the genuine owner and the person who secures the long-term protection of the land. The owner is given enough time (the limitation period) to assert his/her rights, but it is his/her gross ignorance that may deteriorate property, where many people are homeless. As a result, such doctrine seems essential.
This article was contributed by Jatin Karela, Law Student at National Law University, Jodhpur
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