Adverse Possession – Does the
owner get his just deserts?
Una Woods, University of Limerick
Context
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The law in Ireland
Impact of recent English reforms (Land
Registration Act 2002)
This paper
◦ examines how sympathy or antipathy for the
owner emerges as a theme in the academic
literature and
◦ discusses whether such sympathy has in the past,
or could in the future, influence whether the
courts apply the rule in Leigh v Jack (1879) 5 Ex
D 264
The blameworthiness of the owner as
portrayed by the literature
Caricatures – ‘innocent victim’ versus ‘villain’
 Blameworthy owner – ‘sleeping theory’
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◦ ‘You snooze, you lose’ (Stake)
◦ Spectrum of sleeping plaintiffs (abandoned land; failure
to monitor)
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‘Earner theory’
◦ Punishes owner you fails to use/develop land
◦ Rewards squatter for doing so (and returning it to
the market)
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Moral and economic dimensions to justifications
American critiques of the sleeping and earner
theories

Stake, The Uneasy Case for Adverse Possession’ 89 (2000-1) Geo. L.J. 2419;
Merrill, ‘Property Rules, Liability Rules and Adverse Possession’ 79 (1984-85)
Nw UL Rev 1122;
Fennell, ‘Efficient Trespass: The Case for “Bad Faith” Adverse Possession’
100(2006) Nw UL Rev 1037.
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‘Dubious’; ‘Straw man argument worthy of ridicule’
◦ Owner’s prerogative to do what he wants (provided it doesn’t interfere
with others)
◦ Passive use may be the best use – environmental concerns
◦ Even speculation may be the best use
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Rationales overstate what is required – all he has to do is monitor
the land
Monitoring may ‘flush out offers to purchase’ – facilitates land
transactions
Are buyers likely to camp out in hopes of meeting a monitoring
owner?
Monitoring viewed as a cost rather than a benefit
English (and international) literature on
sleeping/redistribution theories

Dockray, ‘Why do we need adverse possession?’ [1985] Conv 272
◦ Knowledge (actual or constructive) of accrual of cause of action is not a precondition
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Bogusz, ‘Bringing Land Registration into the Twenty-First Century – The
Land Registration Act 2002’ 65 (2002) Mod L Rev 556
◦ May have had a redistributive role in feudal times
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Gardiner, ‘Squatters’ rights and adverse possession: A search for equitable
application of property laws’ (1997-1998) 8 Ind Int’l & Comp L Rev 119
◦ Vital role in less developed countries (inadequate land titling systems, vast areas
of under-utilised land, housing shortages

Fox and Cobb, ‘Living outside the system? The (im)morality of urban
squatting after the Land Registration Act 2002’ 27(2)(2007) Leg Studs 236
Fox-O’Mahony and Cobb, ‘Taxonomies of Squatting: Unlawful Occupation
in a New Legal Order’ 71(6)(2008) Mod L Rev 878
◦ Critical of large landowners (local authorities) who fail to monitor their
properties
‘Living outside the system’

Law Commission accused of ‘moral essentialism’
◦ ‘For the Law Commission, the problem of forgotten properties was one
for which landowners were regarded as blameless… The clear (and
contentious) moral implication here – that landowners cannot rather
than simply do not supervise their properties effectively – reinforces
the view that they should not be punished for inadequate supervision
by losing title to their land. The LRA 2002 was specifically designed to
protect registered proprietors from the possibility of such oversight or
inadvertence.’
◦ ‘...it is arguable that many large landowners are in a better position
financially to manage their property effectively and should therefore be
expected to take much greater responsibility for surveillance.’ They also
note, ‘…the challenges of effective supervision seem less acute for
landowners of smaller tracts of land.’
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Owners who to monitor are in breach of their duty of
stewardship (and have a morally weaker claim than the urban
squatter)
‘Taxonomies of Squatting’
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Critique of the Grand Chamber decision in Pye v
UK(2008) 46 EHRR 45
The interference with the right to property can be
justified by the public interest it serves in promoting
good land stewardship
Stewardship v liberal models of ownership
Works well to restrict owner’s right of use and
exclusion to comply with community orientated
responsibilities (eg environment, heritage, public rights
of access to the countryside)
Does it work well to justify adverse possession?
Remember monitoring doesn’t include caring for the
land
Irish Derelict Sites Act 1990
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How morally essentialist was the Law Commission?
◦ Literature
◦ Overly-influenced by problems faced by certain owners
◦ No consideration of moral position of the urban squatter
Fox-O’Mahony and Cobb re-balance the case for
reform
 But are they also guilty of a degree of moral
essentialism?
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◦ Difficult/impossible to avoid subjective biases in examining
the fairness of a law as it applies in specific situations
Most owners lose title to neighbours and family
members – failure to formalise
arrangement/commence litigation is designed to avoid
conflict (is this bad land stewardship?)
 The failure to act becomes even more
understandable if the owner has no current use for
the property (but has future plans) – see facts of Pye
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Leigh v Jack – Has it been applied out of
sympathy for the owner?
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Time cannot run in favour of a squatter unless
he is engaged in acts of user which are
inconsistent with the future plans of the owner
Number of reasons for the decision
Its application/rejection has generally been a
matter of black letter law (no express reference
to blameworthiness of owner or human rights
issues involved)
Beaulane Properties Ltd v Palmer [2006] Ch 79
(Nicholas Strauss QC)
The application of the rule in Ireland

Was Pye Ltd blameworthy?
◦ ECHR references to culpability
◦ Strategic reasons for not entering into another
grazing agreement
◦ Company representative had visited the land
◦ It is arguable that the owner had monitored and was
content that it was been exploited and maintained
while planning was being sought
◦ Guilty of not acting in antagonistic or litigious fashion
to a neighbouring farmer – a bad land steward??
A potential role for Leigh v Jack to protect
the owner

Buckley’s argument in the aftermath of the Chamber
decision in Pye
◦ ‘Adverse Possession at the Crossroads’ (2006) 11 (3) CPLJ 59

Katz ‘The Moral Paradox of Adverse Possession:
Sovereignty and Revolution in Property Law’ (2010) 55
McGill LJ 47
◦ US – transformation of thief into owner – a moral paradox
◦ England –procedural model (focusing on extinction of owner’s
rights and relying on relativity of title) avoids this moral paradox
◦ Relies on an unsatisfactorily weak conception of ownership
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‘Inconsistent use’ model
◦ recognises the transformation without collapsing into
a moral paradox
◦ Recognises the owner’s authority to set an agenda
and remain owner without maintaining possession
◦ Fills a vacancy in ownership where the owner is no
longer exercising his authority and the land has
become agenda-less
◦ Analogy with the position of a government which has
taken over as a result of a bloodless coup d’etat
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The model ‘solves the moral problems of
agenda-less objects just as the recognition of
the existing government (whatever its origins)
solves the moral problem of stateless people.’
 Problems
with this model
◦ Difficulties in establishing subjective intention
◦ How specific must the owner’s plans be?
◦ Inconsistent user test may not be straightforward to
apply
◦ Doesn’t protect the owner with no plans
◦ Katz pre-supposes ambivalence on the part of English
jurists in relation to the morality of the law
◦ Fails to consider the merits of the veto system as a
method of protecting the owner’s authority