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A Comparative, Historical and Theoretical Introduction to the Law on Acquisitions of Immovables through Long-Term Use

Published online by Cambridge University Press:  26 May 2022

Björn Hoops
Affiliation:
University of Groningen, The Netherlands
Ernst J. Marais
Affiliation:
University of Johannesburg
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Summary

INTRODUCTION

Most jurisdictions have a legal rule that permits persons to acquire land who use it for a certain period without the permission of the person to whom it belongs. In civil law and mixed legal systems, such acquisition commonly occurs through acquisitive prescription, while in the common law the rule that governs this acquisition is known as adverse possession. Though these two institutions have different theoretical foundations in these legal traditions, one aspect they share is that the law awards land to persons, by operation of law, the moment they satisfy the requirements for these rules. Two rationales are traditionally put forward to justify the rules, namely that they (i) promote legal certainty by ensuring that long-existing factual control aligns with the legal reality; and (ii) punish neglectful owners for not looking after their land.

The legitimacy of adverse possession (and by implication also acquisitive prescription, its civil law counterpart) was drawn into question during the first decade of the current century in the famous Pye saga, which began in the United Kingdom and ended at the Grand Chamber of the European Court of Human Rights. In JA Pye (Oxford) Ltd and Another v Graham and Another, the first decision in a series of five judgments, Neuberger J highlighted problems with this legal rule. Having held that the respondents acquired 25 hectares of prime farmland in Oxford through adverse possession, he stated that this decision was one he ‘arrive[d] at with no enthusiasm’. In his view, the result ‘does not accord with justice and cannot be justified by practical considerations’. He confirmed that the traditional justification for adverse possession was to promote legal certainty by preventing uncertainties in relation to landownership. He emphasised that these uncertainties are – but for a few exceptions – unlikely to arise in the context of registered land, since owners of registered land may be identified by simply inspecting the land register. Neuberger J further ruled that adverse possession played a more important role by preventing uncertainties and unnecessary litigation during the days when land was still unregistered.

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Publisher: Intersentia
Print publication year: 2022

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