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Case 6 - Creation of Limited Land Rights after the Occupation

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

Variation 6.1. Creation of security right after beginning of living on another’s land without permission

Kouchi owns a parcel of land in Eden, but lives and works abroad as a successful banker. Linlin, who has been living on the streets, builds a small hut on Kouchi’s land without Kouchi knowing of it. As her life normalises, Linlin improves the hut, lays out a garden, and puts up a fence around the house. After five years since Linlin started to live on the land, Kouchi takes out a loan with a bank and registers a security right on the land in favour of the bank. After 26 years from this date, Kouchi defaults on the loan. The bank seeks to exercise the security right, but Linlin opposes the sale of the land in court.

Variation 6.2. Creation of a registered right to cross after beginning of living on another’s land without permission

See Variation 6.1. After five years since Linlin started to live on the land, Kouchi concludes an agreement with Yolanda in terms of which Yolanda may cross Kouchi’s land, which right is registered. Yolanda exercises this right daily. Kouchi never returns and never seeks to evict Linlin. After 26 years from this date, Linlin is fed up with Yolanda crossing the land and institutes proceedings to prevent Yolanda from crossing the land.

KEY ISSUES

VARIATION 6.1.

As does Variation 1.3., this case concerns the impact of an acquisition through long-term use upon registered security rights. This case asks whether it is relevant to that impact that the security right was created only after the land was occupied.

VARIATION 6.2.

This variation raises the same issue, but with respect to a registered right to cross. The reporters are requested to comment on whether it is relevant that the right to cross is exercised regularly.

ALBERTA, CANADA

Variation 6.1.

Under Alberta’s Torrens land titles system the bank’s registered interest is unaffected by Linlin’s unregistered possessory claim, notwithstanding that the security interest was created subsequent to the trespass and even if Linlin’s occupation has matured into a choate adverse possession claim against Kouchi (see Variation 1.3.).

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Publisher: Intersentia
Print publication year: 2022

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