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Case 4 - Impugned Transfer
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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- The Acquisition of Immovables through Long-Term Use
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- 26 May 2022
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- 28 January 2022, pp 319-370
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Summary
Variation 4.1. Impugned transfer
André sells and transfers the ownership of his parcel of land to Carla. The transaction complies with all formalities pertaining to transfers of land and is, in any case, registered in the land information system. However, Carla has blackmailed André into selling the land to her. Carla starts to live on the land. After ten years, André has recovered from the blackmailing, lets Carla know that he regards the contract as null and void, and sues Carla, seeking to regain control of the land.
Variation 4.2. Impugned transfer and transfer to a third party by the user
See Variation 4.1. Immediately after the transfer Carla sells the land to Bob, who does not know anything about the transaction between André and Carla. The transaction is registered in the land information system and Carla and Bob observe all formalities pertaining to transfers of land. Bob starts to live on the land. Ten years after the registration of the transaction, André has recovered from the blackmailing, lets Bob and Carla know that he regards the contract of sale between Carla him as null and void, and sues Bob, seeking to eject him.
KEY ISSUES
VARIATION 4.1.
This case raises the questions of whether blackmailing would render the transfer of land void(able) and, if so, whether an acquisition through long-term use could heal this defective transfer.
VARIATION 4.2.
This variation prompts the reporters to examine how a (presumably) defective, but registered transfer of land affects a subsequent transfer to a third party and the role that long-term use plays in this variation.
ALBERTA, CANADA OPERATIVE RULES
Variation 4.1.
Carla’s title is protected by the principle of indefeasibility, but is subject to André’s substantive right in personam to vitiate or rescind the contract for duress, assuming his right of action is not itself statute-barred. If André obtains judgment in his favour, and the sale is voided, he can proceed to restore his title to the property. In such case, the courts may deny Carla’s potential claim of adverse possession notwithstanding her occupation of ten years, on the grounds that her possession was not peaceful, or not adverse, or possibly due to estoppel.
General Editors’ Preface
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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- The Acquisition of Immovables through Long-Term Use
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Summary
It is a special pleasure to welcome the 20th book in the series The Common Core of European Private Law, published by Intersentia. This book is edited by two scholars, who together represent two different legal cultures: the German and the South African. Their works are already renowned and appreciated well beyond the ‘Common Core’ circles.
The Common Core project was launched in 1993 at the University of Trento under the auspices of the late Professor Rudolf B. Schlesinger. The methodology used in the Common Core project, then novel, is now a classic. By making use of case studies, it goes beyond mere description to detailed inquiry into how most European Union legal systems resolve specific legal questions in practice, and to thorough comparisons between those systems. It is our hope that these volumes will provide scholars with a valuable tool for research in comparative law and in their own national legal systems. The collection of materials that the Common Core project is offering to the scholarly community is already quite extensive and will become even more so as more volumes are published. The availability of materials attempting a genuine analysis of how things seem to be is, in our opinion, a prerequisite for an intelligent and critical discussion on how they should be. Perhaps in the future European private law will be authoritatively restated or even codified. As of today, the Common Core project is the longestrunning scholarly enterprise in the field. The analytical work carried out by the more than 300 scholars that have so far joined us in the Common Core project is also a precious asset of knowledge and legitimisation for any such a normative enterprise.
We must thank the editors and contributors for their work. With a sense of deep gratitude, we also wish to recall our late Honorary Editor, Professor Rudolf B. Schlesinger. We are sad that we have not been able to present him with the results of a project in which he believed so firmly.
No scholarly project can survive without committed sponsors. The International University College of Turin allows us to organise the General Meetings together with the Centro Studi di Diritto Comparato of Trieste.
Case 8 - Sale without Registration
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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- The Acquisition of Immovables through Long-Term Use
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Jan is the owner of a piece of land. He sells it to Svetlana and they observe all formalities with respect to a contract of sale. Svetlana pays the full purchase price to Jan and starts living on the land. Jan and Svetlana do not make an effort to register the transaction with respect to the land. Svetlana lives on the land for 30 years. Jan is declared bankrupt. Sean buys the land and the bankruptcy trustee and he observe all formalities required for a transfer. Sean institutes proceedings to eject Svetlana from the land.
KEY ISSUES
This case introduces different issues, depending on the respective jurisdiction. Where registration is not required for a valid transfer of land, it raises the issue of whether the unregistered transfer can be invoked as against third-party purchasers and, if not, whether rights acquired through long-term use would prevail against the third party. Where registration is required, the case raises the questions of whether long-term use may heal this defect and whether rights acquired through long-term use would prevail against the third party.
ALBERTA, CANADA
The contract for the sale of the land is binding as between Jan and Svetlana; even an oral agreement may suffice if Svetlana paid the purchase price and took possession. However, under Alberta’s Torrens system, in the absence of registration the purchase agreement can only confer on Svetlana equitable title, which is not binding on a good faith purchaser for value. If Sean is a good faith purchaser for value, he takes good title notwithstanding Svetlana’s unregistered equitable and possessory interest (see the General Introduction, especially text accompanying notes 17–21). Further, upon acquiring title, Sean becomes entitled to a ten-year limitation action to commence action to recover possession against Svetlana. Sean’s legal action in this case appears timely and should succeed
BELGIUM
Irrelevance of registration. No need for registration exists between the parties to a sale or other transfer. Article 1 of the Loi hypothé caire (Law on Hypothecs; new Art. 3.30 BCC) protects only third parties with a concurrent right (essentially a property right that would be threatened by the contract, for instance the right of a second buyer). Svetlana has therefore acquired the piece of land by buying it.
Case 3 - Extending Boundaries of Residential Land onto Land Owned by a Municipality
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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- The Acquisition of Immovables through Long-Term Use
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Babylon, a municipality, is the registered owner of 3,000 parcels of land in its area. In a residential area, Babylon owns a plot of grass between the fence of Gugu’s residential land and a pavement. Gugu knows that Babylon is the owner, but extends her garden onto that piece of land and onto the pavement and puts up a new fence that includes both the plot of grass and the pavement as part of her land. She grows potatoes and strawberries on the soil between the fence and the pavement, and uses the pavement for barbecuing and sunbathing. Babylon is unable to monitor the use of all its properties. After a period of 31 years has elapsed since Gugu extended her garden, Babylon notices the extension. Babylon wants the fence demolished and the garden removed. Babylon sues Gugu by demanding that she return the land and, subsidiary to that, that she compensate Babylon.
KEY ISSUES
The reporters must investigate, in addition to the issues raised in Variation 1.1., whether, and, if so, under what conditions, municipal land can be acquired through long-term use. The goal of this case is to determine whether publicly owned land is treated differently from privately owned land. The case distinguishes between municipal land with a public function (here: the pavement) and other municipal land (here: the plot of grass). The reporters are also requested to comment on whether the municipality would have a claim for compensation in case of an acquisition through long-term use.
ALBERTA, CANADA OPERATIVE RULES
Adverse possession of municipal land is expressly precluded by section 609 of the Alberta Municipal Government Act, which provides: ‘No person can acquire an estate or interest in land owned by a municipality by adverse or unauthorised possession, occupation, enjoyment or use of the land’.
DESCRIPTIVE FORMANTS
The case deals with an encroachment on municipal land by an adjoining property owner. But suppose the trespasser, Gugu, was a homeless individual.
Contents
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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Case 6 - Creation of Limited Land Rights after the Occupation
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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- The Acquisition of Immovables through Long-Term Use
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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.).
Case 7 - Unlawful Use by Tenants
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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Variation 7.1. Rental agreement (I)
Valla owns a piece of land, which is unfenced. She concludes a rental agreement with Olaf, who starts to live on her land in accordance with the agreement. Olaf stops paying rent to Valla and continues to live on the land. This situation continues for 30 years without Valla objecting to it. Upon her return one week after the completion of this 30-year period Valla institutes proceedings to eject Olaf from her land.
Variation 7.2. Rental agreement (II)
See Variation 7.1. There is no fence between Valla’s land and the neighbouring piece of land, which belongs to Sellina. Olaf, who diligently pays rent, starts using a part of Sellina’s land just beyond the actual boundary of Valla’s land and erects a fence around this part and the rest of Valla’s land. After 30 years since the erection of the fence, Sellina institutes proceedings to eject Olaf from the part beyond the boundary of Valla’s land.
KEY ISSUES
VARIATION 7.1.
The reporters must examine whether a tenant can acquire their landlord’s land through long-term use after s/he stopped paying the rent.
VARIATION 7.2.
In addition to Variation 1.1., this case raises the issue of whether a tenant’s unlawful use of a piece of land that is adjacent to the rented land and not owned by their landlord may result in an acquisition through long-term use, either by the tenant or the landlord.
ALBERTA, CANADA
OPERATIVE RULES
Variation 7.1.
In Canada, a tenant’s failure to pay rent does not automatically result in the termination of the lease, but merely gives the landlord a choice between enforcing the lease and bringing the estate to an end by retaking possession of the demised property, provided that payment of rent is made a condition of the lease. In the case of a tenancy governed by Alberta’s Residential Tenancies Act, the landlord’s right to terminate the lease, even for non-payment of rent, is restricted and subject to approval by the courts. While the lease is in force, the tenant’s possession is lawful and not adverse, and the clock does not run against the landlord.
Case 2 - Unknown Owner
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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Variation 2.1. Unknown owner (I)
As her mother’s sole heir Hannah obtains control over a piece of land from her late mother, who lived on the land all her life, for 70 years. The land has been passed on for (at least) five generations. It is unknown how her ancestors obtained access to the land. Hannah lives on the land for another 20 years. The registered owner (a private entrepreneur) is long dead. Nobody knows whether there are heirs and, if so, who and where they are. Hannah is wondering what formalities have to be observed in order for her presence not to be challenged and her right(s) with regard to the land to be recognised by others.
Variation 2.2. Unknown owner (II)
See Variation 2.1. Hannah’s family did not reside on the land for generations. Hannah’s mother obtained control of the land eight years before her death. Hannah has since used the land for 19 years. Hannah is wondering what formalities have to be observed in order for her presence not to be challenged and her right(s) with regard to the land to be recognised by others.
Variation 2.3. Unknown owner of unregistered land
See Variation 2.1. The land is unregistered and there is no evidence as to who the owner is. Hannah is wondering what formalities have to be observed in order for her presence not to be challenged and her right(s) with regard to the land to be recognised by others.
KEY ISSUES
VARIATION 2.1.
This case raises, in addition to the problems posed in Variation 1.1., the issues of whether very long periods of unlawful land use may result in an acquisition of the land, and of the significance of a lack of information on the person and whereabouts of the land’s owner.
VARIATION 2.2.
This variation differs from Variation 2.1. in that the length of the use is shorter and raises the question of whether this aspect of the case is relevant.
Appendix I - Instructions for the Project on the Acquisition of Immovables through Long-Term Use
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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GENERAL GUIDELINES
STRUCTURE
– Give an outline of the applicable law at the beginning of the report, but discuss the rules in depth when they are applicable to the case.
– Make cross-references instead of reiterating what you have already explained.
SOURCES OF LAW AND SCOPE OF INVESTIGATION
– The most essential literature (whether foreign or domestic) should be indicated.
– References to sources (legislation, case law, scholarly writings, etc.) should remain in proportion to the importance of that source within the legal system.
– Please consider all areas of law relevant to the factual scenario, not just the obvious ones (i.e., law on acquisitive prescription/adverse possession), but also others, including tort law/law of delict, constitutional law, housing law, and other areas of private or public law.
– Information involving other systems in a comparison is welcome to the extent that it influences the outcome of the case in your jurisdiction.
– Assume that all cases are set in the year 2020.
– If the acting character has not acquired the land for the sole reason that s/he has not used the land long enough, please consider what would happen if s/he used the land for a longer period of time.
– Registered owner refers to the person who a land information system indicates as owner of registered land. The cases only concern unregistered land where the case makes express reference to unregistered land.
– Land information system refers to any system that contains information on the legal status of land and makes this information available to the public. Examples include public records of deeds and land registries. Discuss your land information system to the extent that it is necessary in order to understand your jurisdiction’s solution to the case.
WHEN ANALYSING THE SOURCES, PLEASE CONSIDER
– how the case would be solved (ejection, no ejection, retaining the right, loss of right, solution in between) according to legislation or case law in the given legal system;
– specifically with regard to the law on acquisitive prescription/adverse possession: the length of the prescription periods (with regard to good faith and bad faith control) and the reasons for it;
– whether this solution would be consistent with legal doctrine, legislation, constitutional jurisprudence, and supranational/international human rights treaties;
List of Cases
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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Preface
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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Summary
It was during the annual conference of the Common Core of European Private Law, held in Lecce in the autumn of 2016, when we decided to launch a project – under the auspices of the Common Core – on acquisitive prescription. As both of us specialise in acquisitive prescription law in our respective jurisdictions, we wanted to undertake a major comparative project on this legal field in collaboration with a group of reporters from across the globe.
By the spring of 2017, we had gathered an excellent team of reporters, who, including the two editors, eventually represented 19 legal systems. We have been fortunate to work with extremely reliable and diligent reporters. Prior to the 2017 Common Core meeting, the reporters had already provided us with an outline of how non-owners who use another person’s land could acquire ownership of it through the mere passage of time. It quickly became apparent that in Europe, and beyond, acquisitive prescription and adverse possession, its common-law equivalent, were not common to all the jurisdictions under investigation and there were several different ways in which users could acquire other people’s land through the passage of time. As such, the overarching theme of the project became the acquisition of immovables through long-term use. Based on the outlines we formulated, in conjunction with the reporters, we developed a case-based questionnaire on this topic. This questionnaire was approved by the general editors of the Common Core at the 2017 annual meeting.
In the following two years, the reporters provided solutions to the ten cases in the questionnaire from the perspective of their respective jurisdictions. Where necessary, we adjusted the questionnaire and went through several rounds of editing. We have very fond memories of the conference on acquisitive prescription that we hosted in Groningen during 2018. The discussions on the project and acquisitive prescription, as well as the memorable Sardinian dinner, gave this project a boost and resulted in the publication of a book (B. Hoops & E.J. Marais, New Perspectives on Acquisitive Prescription (2019) Eleven International Publishing), which contains chapters on various problems concerning acquisitive prescription and adverse possession.
Comparative Analysis – Case 1
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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- The Acquisition of Immovables through Long-Term Use
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GENERAL INTRODUCTORY REMARKS ON CASE 1
Case 1 and its variations touch on several key issues surrounding the acquisition of land through long-term use. These matters pertain to whether countries permit intentional acquisition of land through long-term use and, concomitantly, whether registration plays a role in this context (Variation 1.1.), what, if any, are the constitutional implications of acquisitions of land through long-term use (Variation 1.1.), the potential effect an acquisition might have on a third party purchaser who has no knowledge of the acquisition (Variation 1.2.), the potential impact an acquisition might have on existing security rights over the land (Variation 1.3.), and, finally, the impact of long-term use on rented land (Variation 1.4.). These aspects are discussed under each of the relevant headings below.
COMPARATIVE REMARKS ON VARIATION 1.1.
INTRODUCTION
In Variation 1.1. reporters had to answer whether Jacob and Mpumi may intentionally acquire land belonging to Nelson through long-term use. Should such acquisition be permitted, several related questions arise, namely whether the land should be registered in their names to enjoy protection against Nelson and third parties, whether the acquisition complies with constitutional protection of property, and whether Nelson has a claim for compensation against Jacob and Mpumi, or the state, for the loss of his land. Finally, should Jacob and Mpumi not acquire the land, reporters had to consider whether their long-term use plays a role if Nelson seeks to evict them. The countries ‘answers to these questions, and the implications of these answers, are set out under the headings that follow.
INTENTIONAL ACQUISITION OF LAND THROUGH LONG-TERM USE
The first question to Variation 1.1. concerns whether a person who intentionally occupies the land of another may acquire such land through long-term use. Such occupation involves situations where the land is used with the knowledge that it belongs to another person, which is the case with Jacob and Mpumi using Nelson’s land. This type of use is usually embodied in a notion of ‘bad faith’.
List of Abbreviations
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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Comparative Analysis – Case 2
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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GENERAL INTRODUCTORY REMARKS ON CASE 2
Case 2 concerns a situation where successive persons used the land unlawfully for extended periods and where the owner is unknown. The variations touch on where the land has been used by the present user’s predecessor for a very long period (Variation 2.1.), the aggregation of successive periods of use when the current user’s predecessor only used the land for a short period (Variation 2.2.), and, finally, where the land is unregistered (Variation 2.3.). The below headings address each of these aspects.
COMPARATIVE REMARKS ON VARIATION 2.1.
INTRODUCTION
Variation 2.1. addresses two issues, namely (i) whether very long periods of successive land use may result in the acquisition of the land and, if so, what steps the present user, Hannah, must take to ensure that her presence is not challenged; and (ii) whether a lack of information on the person and whereabouts of the land’s owner have a bearing on the acquisition of the land through long-term use. The first heading below addresses the first question, whereafter the second matter receives attention.
ACQUISITION OF LAND THROUGH VERY LONG PERIODS OF SUCCESSIVE USE
In Variation 2.1., reporters had to indicate whether Hannah may acquire land on which she has lived for 20 years. She obtained control of the land from her late mother, who lived there for 70 years. No one knows under what circumstances Hannah’s mother and her family began living on the land. The jurisdictions may be divided into two groups as regards whether Hannah can acquire the land. The Land Registration Act of 2002 (LRA 2002) in the law of England and Wales is not considered here because it is not applicable to uses dating back so far into the past.
ACQUISITION OF LAND THROUGH LONG-TERM USE OR THROUGH INHERITANCE
Countries in the first group allow Hannah to acquire the land, though they may be divided into two sub-groups as regards the ways in which they permit this acquisition. The first sub-group, which comprises Spain, Catalonia, France, Alberta, Louisiana, Italy, Belgium, Ireland, Norway, Russia and Slovakia, allow her to acquire the land through long-term use.
Case 1 - Living on Another’s Land without Permission
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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Variation 1.1. Living on another’s land without permission
Nelson is the registered owner of a parcel of land at the outskirts of Joanna Town. He has built a house on the land and laid out a garden. While on vacation, Nelson meets the love of his life. To live together with his partner, he decides to leave Joanna Town. However, he would like to keep the parcel of land for his adult children and does not sell or transfer it to anyone. A few weeks later, Jacob and Mpumi, who have been living on the streets for a couple of months, notice that the house on Nelson’s parcel is uninhabited. Jacob and Mpumi move into the house with all their belongings. After a year, their lives have normalised. They work, maintain the house, take care of the garden, and put up a fence around the house and the garden. Twenty-one years later and after a traumatising divorce, Nelson, who has been paying the rates and taxes pertaining to the land, comes back to Joanna Town and discovers Jacob, Mpumi, and their family living in the house. Nelson approaches a court to obtain an order to evict them and, subsidiary to that, sues them and the state for compensation. Jacob and Mpumi are now wondering what formalities to observe in order for their presence not to be challenged and to be recognised by others.
Variation 1.2. Living on another’s land without permission and a transfer to a third party by the original owner
See Variation 1.1. Jacob and Mpumi have been living in Nelson’s house for 31 years. Instead of getting divorced and returning to Joanna Town, Nelson decides to sell his house. Natalia buys the house. Natalia and Nelson observe all formalities for the transfer of the land. Natalia approaches a court to obtain an order to evict Jacob, Mpumi, and their family.
Variation 1.3. Living on another’s land without permission and the fate of security rights in land
See Variation 1.1. The National Bank has held a security right in Nelson’s land for 25 years. Jacob and Mpumi have been living in Nelson’s house for 22 years. As Nelson defaults on the secured loan he has from the National Bank, the Bank wishes to exercise its security right.
Table of Legislation
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Comparative Analysis – Case 5
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GENERAL INTRODUCTORY REMARKS ON CASE 5
In the context of Case 5, many jurisdictions provide rules for acquisitions by unlawful users who are not intentional occupiers, often embodied by a ‘good faith requirement’. These rules may be substantially more lenient than those applicable to intentional occupiers. These jurisdictions thus foresee more than one basis for an acquisition of land through long-term use. This means that different legal bases for an acquisition must be considered and that it is possible that the user can rely upon any of these bases for his/her acquisition. For this reason, depending upon the legal basis discussed, these jurisdictions may feature in more than one group in this comparative analysis.
COMPARATIVE REMARKS ON VARIATION 5.1.
Variation 5.1. poses the question of whether the rules on acquisitions of land through long-term use treat small pieces of land along property boundaries differently from other land. The case also prompts an examination of the role played by the information on boundaries in the land information system. This inquiry concerns the owner of the adjacent land because Gregory moved the fence after consulting the land information system and gaining the (false) impression that the fence had been in the wrong place. The analysis of the reports with respect to the issue of whether Gregory has acquired the land reveals a very diverse picture.
(1) NO ACQUISITION THROUGH LONG-TERM USE WITHOUT THE REGISTRATION OF ANOTHER ACQUISITION
In the first group of jurisdictions, which consists of Germany, Finland, Scotland, and Sweden, an acquisition of land through long-term use is only possible with a preceding or concomitant registration of another, albeit defective, acquisition of the same land. An example would be the registration of the acquisition of the land through succession by a non-heir followed by the non-heir’s use of the land. These jurisdictions also apply this approach to small pieces of land along property boundaries. Gregory’s error and his long-term use would thus be irrelevant in these jurisdictions. Gregory has not acquired the land.
GREGORY WILL ONLY ACQUIRE UPON REGISTRATION
England and Wales under the Land Registration Act of 2002 are the only member of the second group of jurisdictions. While English and Welsh law do not permit an acquisition in Case 1, the boundary error in Variation 5.1.
Case 9 - Offer to Purchase/Rent Land
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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- Book:
- The Acquisition of Immovables through Long-Term Use
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- Intersentia
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- 26 May 2022
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- 28 January 2022, pp 557-578
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Summary
Anna starts living on Jo’s land without his permission and knowledge. Anna immediately puts up a fence around Jo’s land. After 15 years Anna makes an offer to Jo to purchase or rent the land. Jo refuses to conclude any such agreement. After a total period of 30 years has elapsed since Anna started living on Jo’s land and erected the fence, Jo institutes proceedings to eject Anna from the land.
KEY ISSUES
In addition to Variation 1.1., this case raises the issue of whether an offer to purchase or rent the occupied land would have any relevance to a possible acquisition of land through long-term use.
ALBERTA, CANADA
OPERATIVE RULES
As in Variation 1.1., after ten years Anna became entitled to a defence of adverse possession, even as a knowing trespasser. Since she could commence proceedings then to have the land registered in her name according to section 74 of the Land Titles Act, it would be implausible for her to make an offer to purchase the land after 15 years if these facts were to occur in Alberta.
DESCRIPTIVE FORMANTS
The general common law position is that an offer by a trespasser to purchase the property from the owner is regarded as an acknowledgment of the latter’s title, implying that possession is not adverse. However, the Limitations Act of Alberta provides, somewhat mysteriously, that if a person in possession of land has given to the registered owner ‘an acknowledgment in writing of that person’s title’ prior to the expiration of the ten-year period, the possession is deemed to be ‘possession by the person to whom the acknowledgment was given’ (emphasis added), and further, that the limitation period to bring an action to recover possession begins from the time of the most recent acknowledgment. In light of the statute, the effect of an oral acknowledgement in Alberta is not clear, and moreover, the effect of acknowledgement in writing may not be to negate adverse possession, but merely to restart the clock.
Frontmatter
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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- Book:
- The Acquisition of Immovables through Long-Term Use
- Published by:
- Intersentia
- Published online:
- 26 May 2022
- Print publication:
- 28 January 2022, pp i-iv
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A Comparative, Historical and Theoretical Introduction to the Law on Acquisitions of Immovables through Long-Term Use
- Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
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- Book:
- The Acquisition of Immovables through Long-Term Use
- Published by:
- Intersentia
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- 26 May 2022
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- 28 January 2022, pp 3-40
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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.