Adverse Possession (AP) is often viewed as land theft, leading to criticism as theft is illegal.

However,
some theories have historically supported it such as the theory of relativity of title rooted in the
medieval belief that land could only be possessed not purchased. The economic theory also argues that
since land is a scarce resource leaving it unused would harm the local economy encouraging investments
in unused land with the hope of future ownership. Notably, the factual basis comprising actual
possession and the intent to own remains crucial in both old and new laws regardless of whether the
land is registered

Once the factual basis is established the application of either the old or new law becomes crucial. For
unregistered land, adverse possessors must demonstrate 12 years of continuous possession whether
aiming for a fee simple or leasehold title. After this period, those seeking fee simple ownership will be
recognized as the title owner while those pursuing a leasehold will only gain absolute possessory rights.
This creates a disadvantage for adverse possessors as leases can be terminated by agreement between
the owner and lessee.

Under the Land Registration Act 1925 (LRA 1925), if an adverse possessor completed 12 years before
October 23, 2003, a trust was created, making them the equitable owner. The state, responsible for
maintaining legal titles, only granted equitable ownership, safeguarding the integrity of the register. To
gain legal title, adverse possessors could apply to court, ensuring both the register's credibility and their
rights were balanced.

Under the LRA 2002, an adverse possessor must show 10 years of continuous possession if the period
began after the effective date, or 12 years if it started before October 23, 2003. While older laws granted
possessors title or proprietary rights after the time limit, the new law only allows them to apply to the
HM Land Registry. The registrar then reviews the claim and may reject it if unconvinced. If satisfied, the
registrar notifies the legal owner, offering three options: consent (granting the title to the adverse
possessor), objection, or serving a counter notice. The counter notice is the preferred option, as it shifts
the burden of proof to the adverse possessor, who cannot be registered unless one of three exceptions
—Proprietary Estoppel, another valid registration reason, or boundary issues applies.

To successfully claim Proprietary Estoppel (PE), the adverse possessor must demonstrate elements of
certainty, reliance, disadvantage, and unconscionability, along with supporting documentation for their
registration request. If PE is established, it should be noted that the adverse possessor would not need
to assert an adverse possession claim. Even with a successful PE claim, additional evidence must be
presented to support the request for registration, thus creating a dual burden under this exception. Due
to the absence of case law specifying the required proof, claimants must rely on examples from the HM
Registry, such as scenarios where an owner builds on land believing they do not own it, and the true
owner has knowingly allowed this mistake, or cases where neighbors informally agree on a sale, and the
buyer occupies the land without formal transfer of ownership.

The second aspect of this exception, which requires the adverse possessor to be registered for other
reasons, remains unclear, lacking judicial clarification on acceptable grounds. Therefore, reliance again
falls on HM Registry examples, which state that registration may occur if the adverse possessor is named
in a deceased owner's will or if they entered a purchase contract without the legal title being
transferred. Notably, despite the inapplicability of adverse possession law, the tenant retains remedies
under inheritance and contract laws
The boundary exception, the third category under adverse possession law, applies specifically to cases
involving territorial encroachment and is subject to four key conditions. First, the applicant must own
land adjacent to the property in question, although the exact boundary between the two properties has
not been clearly established. Second, the estate relevant to the application must have been created
more than a year before the application was submitted. Third, the applicant must have held adverse
possession for at least 10 years, concluding on the date of application. Finally, during this period, the
applicant must have reasonably believed that the property was theirs. In such situations, the claimant
would pursue a case based on encroachment law instead of adverse possession law.

The LRA 2002 was deliberately enacted to render the doctrine of adverse possession largely obsolete, as
indicated by its exceptions and illustrative cases. The new legislation eliminates allowances for those
traditionally viewed as adverse possessors acting with intent. Moreover, individuals whose rights have
been reinforced by the law have alternative legal remedies and would not resort to adverse possession
claims. Therefore, it can be argued that the 2002 legislation reflects contemporary societal values,
emphasizing that trespassing on another's property is unacceptable.

Furthermore, if an adverse possessor cannot qualify for any of the three exceptions, the legitimate
owner has two years to evict the occupant and reclaim possession without facing unlawful liability.
Should the property owner fail to act within this period, the adverse possessor may seek legal recourse
to secure their occupation rights, allowing them to reapply for ownership of the property.

The recent case of JA Pye v. Graham raised significant questions regarding whether a squatter infringes
upon the human property rights of a landowner who has been removed from their property. In this case,
the Court of Appeal (CA) recognized that it was encroaching on the paper owner's right to seek a court
order under Article 6 of the European Convention on Human Rights (ECHR), despite ruling against this
principle. The CA justified its interference by citing the time limitations involved. The European Court of
Human Rights (ECtHR) subsequently endorsed the CA's position in JA Pye v. UK (2008). A contemporary
argument emerged supporting adverse possessors, suggesting they should be entitled to protections
under Article 8 of the ECHR, which safeguards the right to private life. It was argued that after an adverse
possessor occupies a property for 10 or 12 years, they often establish a home and family there. Thus,
their eviction after such a prolonged period could be perceived as a violation of their Article 8 rights.
Until the court ruled unfavorably in the Malick case, this issue remained speculative, reinforcing the
notion that modern society has little place for occupiers and casting doubt on any legal theory that might
support their claims, particularly since they lack protection under international treaties.

The passage of Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO)
further complicated matters by criminalizing squatting in residential properties. This legislative change
initially generated confusion about whether squatters could seek legal recognition as proprietors or
pursue court orders given their criminal status. In the case of Best v. Chief Land Registrar, it was
determined that while the adverse possessor could theoretically apply for recognition, doing so would
legally equate to admitting a crime, potentially resulting in imprisonment under Section 144 of LASPO.

In summary, it is evident that the law of adverse possession has become largely ineffective due to the
specific provisions of the Land Registration Act (LRA) 2002, which intentionally excludes adverse
possessors from legal recourse. Furthermore, these individuals are not afforded protection under the
ECHR, and in the UK, trespassing is classified as a criminal offense punishable by imprisonment under
Section 144 of the Land and Property Act. This legal landscape indicates a significant shift away from
recognizing adverse possession as a valid means of acquiring property rights.