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Adverse Possession, also known as “squatter’s rights,” is a legal principle, doctrine, or theory of real estate law that states that someone who has been in possession of another’s land for an extended period of time may be able to claim legal ownership of the land. A person’s possession is not adverse if they are a tenant or licensee of the legal owner.
In many common law jurisdictions, including Nigeria, one of the most powerful ways of acquiring or proving title is through acts of possession with animus possidendi (that is, the intention to possess) over a long period of time[i]. This not only forms the basis of action by the’real’ owner against squatters and trespassers in particular, but has been recognized in law generally as justification for the claim of adverse possession by such squatters and trespassers, and as a defense in an action for declaration of title by the ‘real’ owner under an unregistered conveyancing system[ii]. Following the implementation of a title registration system in certain common law jurisdictions,[iii] It became necessary for the adverse possessor to register his or her title in order to defeat the interest of the previously registered owner.
The adverse possessor’s claim at common law has been bolstered by statutes of limitation enacted in various jurisdictions, which specify the period within which the ‘real’ owner is expected to bring an action in court against the adverse possessor for declaration of title or have his or her title extinguished in favor of the adverse possessor after the time prescribed by law. Thus, a valid adverse possession claim is dependent on meeting the legal requirements for adverse possession, as well as the passage of time under the applicable limitation statute.
Effect of Adverse Possession on Registered Title
Adverse possession of registered land has several serious and inherently problematic consequences, including violating the constitutional right to own property, conflicting with the principles of indefeasibility of title, being unfair and unjust to registered land owners, and the associated economic problems
Property Rights and Adverse Possession
Adverse possession violates the constitutional safeguard of property ownership rights and the prohibition on compulsory acquisition without compensation. The Constitution thus not only guarantees and safeguards the right to acquire property but also prohibits the compulsory acquisition of private property without compensation; thus, owners today can get compensation when the title is actually taken, when the property is physically invaded by government order, either permanently or temporarily.
In a liberal democracy that values both individual liberty and the majority’s right to govern, determining property rights is frequently regarded as particularly contentious.[iv] On the one hand, there is the protection of intensive property rights as expressions of a property owner’s uniqueness. Property is an essential natural right; taking it means taking one’s labor and becoming a slave. In this way, property rights owe nothing to society; rather, property owners form societies and governments to protect their property.[v]
The very purpose of social organization is that property becomes an end in itself. Intensive private property rights should be protected because they provide incentives for entrepreneurs.[vi] Property rights are social institutions that define or limit the range of privileges granted to individuals over specific resources, such as parcels of land or water. Private ownership of these resources may include a variety of property rights, such as the right to exclude non-owners from access, the right to appropriate the stream of economic rents derived from resource use and investment, and the right to sell or otherwise transfer the resource to others. Property rights institutions range from formal arrangements, such as constitutional provisions, statutes, and judicial rulings, to informal conventions and customs governing property allocation and use. Such institutions have a significant impact on resource-use decision-making, which in turn affects economic behavior and performance.[vii]
Every Nigerian citizen has the right to own land, and the constitution and legislation protect both the right to acquire and the right to dispose of it. However, this right to acquire and hold land is subject to the power granted to the governor of each state by the Land Use Act, as well as the right granted by the constitution; thus, the government can only acquire individuals’ lands compulsorily in exchange for compensation. If an individual believes that the acquisition of his or her land was unlawful, he or she can successfully challenge the acquisition in court. The application of adverse possession to registered land is thus a violation of property rights, hence the recommendation of the restitution principle to the application of adverse possession to registered land is therefore a violation of property rights hence the recommendation of restitution principle to restore those rights.
The law of compulsory acquisition of land in Nigeria is based on the country’s constitution. The Nigerian Constitution states that every Nigerian has the right to own private property and that such property shall not be acquired compulsorily, except in the manner and for the purposes prescribed by a law that requires both prompt compensation and compliance with the rule of law regarding access to the court.
The Constitution thus not only guarantees and safeguards the right to acquire property, but also prohibits the compulsory acquisition of private property without compensation, so owners today can get compensation when the title is actually taken when the property is physically invaded by government order (either permanently or temporarily), when regulation for other than health or safety reasons takes all or nearly all of the value of the property. An uncompensated loss of beneficial ownership of property as in the case of adverse possession of registered land amounts to an unprincipled, inequitable, and unconscionable expropriation of the private citizen’s right to land for the benefit of another[viii].
Conclusion
Registration serves as notice to the entire world, including the adverse possessor, who is required to inspect the register prior to dealing with the land. Registration should be conclusive ownership and should not be undermined by any form of adverse claim; however, as it stands, the doctrine of adverse possession of registered land renders registration meaningless if the registered titleholder cannot be assured of the security of his title following registration.
[i] See Pye (Oxford) Ltd &Ors v Graham &Anor [2002] UKHL 30 at 41, 43, 70, 76; Buraimoh v Bamgbose (1989) 3 NWLR (Pt 109) 352 at 355.
[ii] 3Oyebamiji v Lawanson (2008) 15 NWLR (Pt 1109) 122, Duzu v Yunusa (2010) 10 NWLR (Pt 1201) 80
[iii] See for example, the Land Registration Act, 2002 applicable in England and Wales, and the Land Registration Law of Lagos State Nigeria, 2015.
[iv] M.J. Horwitz, The Transformation of American Law1780-1860, (Harvard University Press: Cambridge,) pg 9-10; H. Demsetz, ’Toward a Theory of Property Rights’ (2002) 31 Journal of Legal Studies 331.
[v] See ‘Property Rights and the Right to the Fruits of One’s Labor: A Note on Adam Smith’s Jurisprudence’ – Volume 21 Issue 2. Available at https://www.cambridge.org. Accessed on 10/08/2021.
[vi] See G.D. Libecap, Douglass C. North ‘Transaction Costs, Property Rights, and Economic Outcomes‘(2018) NBER Working Papers 24585, National Bureau of Economic Research, Inc. available at http://www.nber.org/papers/w24585 (accessed 30 August 2021)
[vii] B. Klein and R.G. Crawford and A.A. Alchian, ‘Vertical Integration, Appropriable Rents, and the Competitive Contracting Process’ (1978) Journal of Law and Economics: The University of Chicago Press, 297.
[viii] See I.O Smith, Essays on the Lagos State Lands Registration Law 2015 (Department of Private & Property Law, Faculty of Law, University of Lagos 2017); In Goldmark (Nig.) Ltd. v Ibafon Co. Ltd. (2012)10 NWLR (Pt. 1308) 291, the Court held that there is no doubt the government has the power and authority to acquire land compulsorily for public use, however, such power is exercisable in accordance with the proper procedure for acquisition, that is, proper notice must be given to the owner of the land and reasonable compensation must be paid.
Written by Olufe Popoola for The Trusted Advisors
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