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O presente artigo realiza uma análise do Recurso Especial nº 1.777.404/TO através de revisão jurisprudencial e doutrinária sobre a destinação dada ao imóvel objeto da usucapião especial urbana, de modo a discutir o requisito da finalidade exclusiva para moradia. A usucapião especial urbana possui um caráter eminentemente social, visando garantir o direito fundamental à moradia à população de baixa renda. Enquanto instrumento de política urbana possui papel crucial na regularização fundiária e no cumprimento da função social da propriedade. Entretanto, uma visão restritiva dos requisitos para a sua concessão, em especial a destinação para fins residenciais, obsta que a área seja utilizada de modo a garantir não só a moradia, mas também a subsistência do usucapiente e de sua família, através de pequenos comércios, promovendo simultaneamente a dignidade da pessoa humana e os valores do trabalho e da livre iniciativa. Deste modo, a destinação dada à área do imóvel usucapido pode ser mista, desde que no caso concreto não reste configurado desvirtuamento do instituto. more...

o presente trabalho se debruca sobre os aspectos relevantes da usucapiao extrajudicial ou administrativa, que foi inserida no ordenamento juridico brasileiro pelo Codigo de Processo Civil de 2015 com o objetivo de contribuir para a desjudicializacao e a formalizacao da aquisicao da propriedade imobiliaria de maneira mais celere e sem a necessidade do processo judicial. more...

U radu se analiziraju bona fides i poštenje posjeda kao pretpostavke kanonskopravne zastare (praescriptio acquisitiva) te dosjelosti hrvatskog prava u njihovu suodnosu. Naime, djelovanjem ugovora između Svete Stolice i RH o pravnim pitanjima u određenim slučajevima vezanima uz crkvene pravne osobe i njihovu imovinu primjenjuju se odredbe kanonskog prava te je cilj rada utvrditi na koji se način to odnosi i na ovu pretpostavku. Nakon opće analize kanonskopravne zastare te pretpostavke dobre vjere kod dosjelosti u rimskoj pravnoj tradiciji zasebno se obrađuje kanonskopravna bona fides i njezine specifičnosti koje ju čine strožim standardom od poštenja posjeda hrvatskog prava. Naposljetku se zaključuje kako se kanonskopravna bona fides primjenjuje kad god crkvene pravne osobe stječu imovinu dosjelošću, a po svemu sudeći i kad se istim načinom stječe njihova imovina., The author analyses bona fides, or possession in good faith, as a prerequisite of the canonical praescriptio acquisitiva and the adverse possession as set forth in contemporary Croatian law in their interrelationship. The problem stems from the fact that the Treaty between the Holy See and the Republic of Croatia on legal matters, being an international treaty and thus having precedence over Croatian laws according to the Croatian constitution, in certain circumstances allows for a direct application of canon law within the Croatian legal system. The aim of this paper is to analyse whether this also applies to bona fides in adverse possession, and if so, in which way exactly. The canonical praescriptio in the context of the Roman legal tradition is analysed first in order to clarify certain terminological and conceptual discrepancies between canon law and Croatian law in this field. Bona fides regarding usucapio and praescriptio of Roman law and the Roman legal tradition is then particularly addressed. The central part of the paper deals with canonical bona fides, where it is specifically noted that it is a stricter standard in comparison to good faith as found in Croatian law. Canon law requires positive good faith throughout the whole required prescription period, meaning knowledge or a reasonable possibility of knowledge of having a right to possess, not infringing the right of another thereby. On the other hand, Croatian law requires knowledge or possibility of knowledge at the outset, while later on only acquired knowledge will render possession illicit. In addition, the Croatian standard of good faith is conceived more simply in comparison to the twofold canonical standard, i.e. only as the absence of knowledge or possibility of knowledge of not having a right to possess. Although both systems presume good faith, those differences may prove crucial if an interested party (owner of property being prescribed) offers evidence to the contrary. Finally, our analysis of the Treaty between the Holy See and the Republic of Croatia on legal matters revealed that the canonical standard of bona fides should be applied whenever a juridical person of the Catholic Church in Croatia acquires property by means of adverse possession, but by all accounts also when any other person acquires Church property in the same way. more...

El decurso del tiempo como fenómeno jurídico y, más concretamente, como hecho jurídico, tiene especial relevancia en cuanto que puede ser extintivo de una relación jurídica, ya porque dé lugar a la constitución de una nueva, como en la prescripción usucupativa; ya porque también puede extinguir la pretensión que deriva del derecho integrado a ella, como en la prescripción extintiva; o porque puede extinguir el derecho mismo, como en la caducidad more...

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This article analyses solutions proposed to the problem of orphan works. Orphan works are copyrighted works whose owners are difficult or impossible to identify and/or locate after carrying out a diligent search. The first and foremost aim of providing a solution for the problem of orphan works is to regain the goal of copyright protection, which is to enable the public to access and benefit from protected works. This article examines various solutions that have been adopted by different countries. It also analyses solutions that are under examination for introduction into law, such as limited liability in the United States. The authors reveal that the adoption of a solution by any country requires careful study to introduce the most appropriate approach. It was also found that solving the problem of orphan works would benefit both users and copyright holders. more...

According to Section 17 of England’s Limitation Act 1980, a person who loses the right to recover possession of land also loses his title to that land. The corollary is that the person who takes possession of the land acquires ownership rights. In cases where title is unregistered, English Land Law provides that ownership of land or, more accurately, estates in land, is a relative concept. In a dispute over entitlement to possession of land, the court must determine which of the two claimants has a better right to possess, rather than who is the owner. This chapter explains legal aspects of possessing land titles in England. After providing an overview of land ownership and possession, it discusses the rationale of the statute of limitation, the link between registered land and human rights, limitation under the Limitation Act 1980, the accrual of a right of action, and adverse possession. more...

This chapter discusses the law on adverse possession. It first considers arguments for and against allowing adverse possession. It then describes changes in the law of adverse possession and outlines the main statutory provisions, namely the Limitation Act 1980, the Land Registration Act 1925, and the Land Registration Act 2002. Next, the chapter discusses what a squatter needs to show to make a claim to the land; the influence of human rights law on adverse possession; and the effects of adverse possession. The old scheme under the Limitation Act 1980 and the new scheme under the Land Registration Act 2002 are compared. more...

Funder: Department of Geography, University of Wisconsin-Madison, Under threat of enclosure in rapidly gentrifying cities, some urban commoners are turning to legal tactics to ward off dispossession. In this article, I explore the contested legal geographies of urban commoning, considering some of the challenges, stakes, and opportunities that emerge in the effort to gain legal recognition. Specifically, I examine the use of the doctrine of adverse possession by Philadelphia gardeners to claim title to the community farm they cultivated as an urban commons for decades. In the context of a neoliberal settler colonial city, I argue that the gardeners’ adverse commoning, involving an il/legal counterclaim to property, facilitates consideration of the ways urban commoners are both enrolled in normative property regimes and have the potential to resist these regimes through errant performances of proprietary continuity, exclusivity, notoriety, and hostility. more...

peer-reviewed In England and Wales the enactment of the Land Registration Act 2002 dramatically reduced the scope of the doctrine of adverse possession in relation to registered land. The new adverse possession regime was justified in the report prececling the 2002 Act on the basis that it was more compatible with principles of title registration and struck a more appropriate balance between the landowner and squatter. 1 Although the 2002 Act confers the registered owner of land with a power to veto most adverse possession applications, an application by a squatter who satisfies one of the three conditions set out in Schedule 6, paragraph 5, will succeed in spite of an objection by the registered owner. The Law Commission felt that in these situations, the balance of fairness lay with the squatter.2 Two of the conditions were designed to preserve the traditional effect of the doctrine for applicants who went into possession pursuant to an informal transfer.3 The Law Commission noted [hat when a dealing takes place "off the register", the applicant does not represent a "land thief" and it would be unjust to allow the registered owner to veto the applicant'S registration.4 more...

Property lawyers are generally viewed as a serious lot, not prone to feverish bursts of excitement as we seek comfort and solace in established legal rules and precepts. In the same way, property law disputes tend to have a fairly low profile and fail to capture the public imagination in the same way as, for example, those involving criminal or human rights law. Such apparent indifference might seem a little strange, given the centrality of property in everyday human life and the significance which legal systems and individuals attach to property rights. However, there is one issue which always inflames passions amongst lawyers and non-lawyers alike: the acquisition of land through the doctrine of adverse possession, often described as ‘squatter’s rights’. No property-related topic is likely to light up a radio show phone-in switchboard quite like squatting.1 more...

The dispute between Muslims and Sikhs over the Shahidganj mosque in Lahore in the early 1930s served as the prelude to the Punjabi Muslims’ decisive shift in favour of the Pakistan movement...

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter investigates in detail adverse possession. The acquisition of title by adverse possession consists of two distinct stages: firstly, the inception of adverse possession; and, secondly, the operation of limitation rules at the end of the requisite period of adverse possession. The operation of adverse possession reflects the ideas underlying unregistered titles. The operation of adverse possession is generally incompatible with the ideas underpinning registration of title, and this led to significant reforms in the Land Registration Act 2002 (LRA 2002). The LRA 2002 provides a new scheme of adverse possession through which title is obtained by registration rather than by possession. A criminal offence of squatting in a residential building was introduced in 2012, but it has been held that the commission of the offence does not preclude a claim to title by adverse possession under the LRA 2002. Adverse possession rules have been held to be human rights compliant. more...

This thesis engages a comparative study of the application of the doctrine of adverse possession under English and Nigerian law. Whilst the pre-colonial geographical entity which later became known as Nigeria had both the customary and Islamic systems of land tenure in place before the British rule, the ensuing colonial administration facilitated the reception of English law which introduced the English land tenure system including the doctrine of adverse possession into Nigeria, subject to local circumstances and local legislation. Consequently, a plural system of land tenure emerged with an attempt by the Land Use Act enacted in 1978 to consolidate them and streamline the system of landholding in the country. This historical background informed this comparative study of the application of the doctrine of adverse possession in its pristine form under English law (applicable in England and Wales), and its application in Nigeria - a country driven by a plural legal system. Using the qualitative/doctrinal research methodology, the thesis engages an inquiry into the application of the doctrine of adverse possession under English and Nigerian law against the backdrop of the peculiarities of the prevailing social circumstances and divergent legal systems applicable in the jurisdictions under study. A summary of the findings in this thesis is that whilst the doctrine of adverse possession may be of general application in the common law and civil law jurisdictions, the historical evolution of the Nigerian legal system, the peculiar social circumstances of the Nigerian land tenure systems, the divergent pieces of local legislation and the extant state land policy, have streamlined the application of the English doctrine of adverse possession in Nigeria. more...

The research analyses the urban land regularization in the city of Fortaleza, Ceara, with emphasis on the (in)constitutionality of administrative adverse possession, in the context of Law 13.465/2017. The parameters established for the implementation of Reurb-s are based on administrative procedures, planning and elaboration of technical studies, which should be included in the master plan of municipalities with more than 20 thousand inhabitants. To this end, a descriptive and exploratory methodology of the qualitative nature was adopted, carried out through a bibliographic research. In this sense, it was concluded that the adverse possession acquisition in the Land Settlement of Social Interest modality is perfectly viable for private goods, but questionable to public ones, since there is an expressed prohibition in the Federal Constitution of 1988. Fortaleza’s master plan does not allow the adverse possession of public goods. Thus, municipalities are required to specify the regularization categories in Reurb-s that meet the constitutional norms. more...

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary, and illustrative diagrams and flowcharts. This chapter presents issues related to adverse possession in both registered and unregistered land and also considers the implications for squatters’ rights of the European Convention on Human Rights. more...

Course-focused and comprehensive, the Textbook on Land Law provides an accessible overview of one key area on the law curriculum. Another way to acquire an estate in land is by adverse possession. The Land Registration Act 2002 (LRA 2002) made major changes to the process of acquiring registered land by adverse possession, but the old rules continue to apply to unregistered land (and registered land where the period of adverse possession was completed before the new Act came into force). This chapter considers what is required to establish adverse possession, and then uses the example of another house in Trant Way to illustrate the three systems in operation: adverse possession of unregistered land; adverse possession of registered land under LRA 1925; and the new system of adverse possession of registered land established by LRA 2002. The chapter concludes with a consideration of the human rights issues arising from adverse possession. more...

This chapter focuses on adverse possession, which is the obtention of title to land by means of possession without permission. It is the natural and logical consequence of the combination of the principle of relativity of title and of limitation (time limits) on actions. The chapter then analyses the rules relating to adverse possession, considering both unregistered land and registered land. Adverse possession is one of the few areas where the unregistered land rules are still regularly taught. The chapter also looks at the special situation which emerges when the rules on adverse possession interact with leases. Moreover, it examines the relationship between the adverse possession rules and criminal law. Finally, the chapter explores the justifications or explanations behind adverse possession, including the relationship between these rules and human rights. more...

In communities across the United States, abandoned properties serve as vestiges of past economic events that continue to contribute to neighbourhood disinvestment. In some communities, residents ar... more...

In a recording title system, a landowner faces two risks: the risk of a claim from a previously dispossessed owner and risk of being dispossessed by adverse possession, squatting, or encroachment. In this study, we build a real options model to investigate the issues regarding the optimal statute of limitations. In the absence of any uncertainty, a longer statute of limitations delays land development, and thus a regulator may allow for a more lenient policy of statutory limitations for land located in the suburb than in the city center. At any given location, greater uncertainty in urban rents will cause a landowner to wait longer. Anticipating this outcome, the regulator should shorten the statute of limitations to increase the likelihood for the current owner to retain title. more...

In Nelson (City) v Mowatt 2017 SCC 8, the Supreme Court of Canada held that the inconsistent use test forms no part of the law of British Columbia. This note surveys and critiques the Court’s reasoning, and argues that the spirit of the decision should be followed in the other provinces. Using the law of Ontario as a case study, it argues that the existence of the inconsistent use test is contrary to both legal history and precedent. more...

Law No. 13.105, of March 16, 2015, establishing the new Civil Proce­dure Code removed the adverse possession from the special procedures of contentious jurisdiction, becoming part of the ordinary procedure, besides innovating about extrajudicial adverse possession, which has an administrative nature. Also suppressed the article dealing with the intervention of the Public Ministry in the adverse possession lawsuit. We’ll discuss in this article the intervention of the public prosecutor in both judicial an extrajudicial adverse possession as a way of monitoring the legal system, in view of the adverse possession as the embodiment of the social function of property and the right to housing. We’ll analyze, finally, the controversial points about the extrajudicial adverse possession. more...

Acquisitive prescription, a broader concept than adverse possession, is adopted in at least 130 jurisdictions in the world, and the doctrine dates back to Roman law. This article first surveys the wide variety of designs of acquisitive prescription in the world, and then uses economic analysis of law to further examine the merits of these various designs. Contrary to many prior works, this article argues that the most justifiable form of acquisitive prescription is a registration-based one with title and good-faith requirements — Possession, however, is redundant, even creating undesirable results. Given that boundary disputes can be left for another doctrine, possession-based acquisitive prescription, no matter whether possessors are in good faith or bad faith, can hardly be justified in economic terms in countries with well-functioning registrars, if they do not have title. Possession-based acquisitive prescription can only be justified in countries with dysfunctional registrars. more...

How do things come to be owned? This is a fundamental puzzle for anyone who thinks about property. One buys things from other owners, to be sure, but how did the other owners get those things? Any chain of ownership or title must have a first link. Someone had to do something to anchor that link. The law tells us what steps we must follow to obtain ownership of things, but we need a theory that tells us why these steps should do the job. John Locke's view, once described as "the standard bourgeois theory,"' is probably the one most familiar to American students. Locke argued that an original owner is one who mixes his or her labor with a thing and, by commingling that labor with the thing, establishes ownership of it.2 This labor theory is appealing because it appears to rest on "desert,"3 but it has some problems. First, without a prior theory of ownership, it is not self-evident that one owns even the labor that is mixed with something else.4 Second, even if one does own the labor that one performs, the labor theory provides no guidance in determining the scope of the right that more...

O presente artigo apresenta os resultados da pesquisa sobre o instituto das Terras Devolutas, com foco naquelas situadas em faixa de fronteira, por meio da análise doutrinária, assim como através dos acórdãos publicados pelo Superior Tribunal de Justiça (STJ) e referentes ao tema. Busca-se compreender o entendimento desta Corte em relação aos seguintes questionamentos: os imóveis localizados na faixa de fronteira, apenas por estarem localizados nesta faixa, são necessariamente classificados como bens da União? E ainda, é possível a ocorrência de usucapião na faixa de fronteira? more...

This review seeks to establish takings as a respected field of sociolegal inquiry. In the legal academy, the term takings has become synonymous with constitutional takings. When defined more broadly, however, a taking is when a person, entity, or state confiscates, destroys, or diminishes rights to property without the informed consent of rights holders. Adopting a more expansive conception of takings lays the groundwork for a robust interdisciplinary conversation about the diverse manifestations and impacts of involuntary property loss, where some of the most valuable contributions are made by people who do not consider themselves property scholars. This review starts the conversation by bringing together the empirical literature on takings published between 2000 and 2015 and scattered in the fields of law, economics, political science, sociology, psychology, geography, and anthropology. Most importantly, a robust understanding of property's multiple values is required to fully comprehend the magnitude of the loss associated with takings, and this creates a space in which scholars can rescue property's political, cultural, emotional, and social value from the sizeable shadow cast by the overly dominant focus on its economic value. more...

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none 1 no Although property rights are key, their determinants are still poorly understood. When property is fully protected, some potential buyers with valuation higher than that of original owners are inefficiently excluded from trade because of transaction costs. When property rights are weak, low-valuation potential buyers inefficiently expropriate original owners. The trade-off between these two misallocations implies that the protection of property will be stronger the more heterogeneous the potential buyer’s preferences are. This implication holds true when part of the population has more political influence on institutional design, when transaction costs are determined by either market power or asymmetric information, and when the disincentive effect of weak property rights is taken into account. Moreover, it is consistent with the relationships between measures of ethnolinguistic, genetic, and religious diversity and novel data on the rules on adverse possession and on government takings of real property in 126 jurisdictions. mixed Guerriero, Carmine Guerriero, Carmine more...

Purpose This paper aims to examine the remedies currently available in Ireland to resolve boundary disputes to assess the importance of the role played by adverse possession in this context. It also examines the potential impact of certain reforms in this area of law. Design/methodology/approach The research methodology is primarily doctrinal, although a comparative approach is adopted for the purposes of assessing whether certain lessons can be learned from recent reforms to the English law on adverse possession and the Australian approach to resolving boundary disputes, which relies heavily on mistaken improver and building encroachment legislation. Findings This paper demonstrates how the current law leaves certain mistaken improvers or encroachers on neighbouring land without a remedy, as they cannot rely on the doctrine of proprietary estoppel or adverse possession. If Ireland decides to replicate the English good faith requirement in relation to adverse possession of boundary land, the remedial vacuum facing these mistaken improvers or encroaching builders will become more pronounced. It is submitted that any such reform should be supplemented by the introduction of legislation akin to that operating in Australia which would facilitate the consideration of a broad range of factors and provide for flexible remedies to resolve such difficulties. It is also submitted that the legislation imposing such a good faith requirement should be carefully drafted to avoid the potential interpretative difficulties associated with the English reforms. Originality/value Boundary disputes are an unfortunate fact of life. The prevalence of boundary disputes and high costs associated with boundary litigation makes this review and critique of the current law and potential reforms highly relevant. more...

Este artigo tem como intencao primaria analisar a usucapiao, conhecido modal de aquisicao originaria da propriedade, em relacao a bens pertencentes a uma universalidade, mais especificamente a massa falida. Como aspectos importantes na construcao do texto, serao estudados o conceito da usucapiao, as suas principais caracteristicas e suas concepcoes juridico-materiais, bem como a relacao direta entre a edificacao da posse com animus domini a gerar a aquisicao do dominio e a arrecadacao de bens juridicamente vinculados a uma universalidade de direito (massa falida), alicercando como criterios fundamentais para a idealizacao das conclusoes a vinculacao dos bens ao pagamento de uma coletividade de credores e a decretacao da falencia como medida restritiva ao exercicio da posse ad usucapionem ante a indisponibilidade do patrimonio objeto do processo falimentar. Palavras-chave: Usucapiao. Massa falida e universalidade de direito. Indisponibilidade de bens. Abstract: This article intends to study the adverse possession, an original form of a property, when the property belongs to a bankrupt asset. To understand the object of study, the article will approach the concept of adverse possession, its main characteristics and the direct relation between the adverse possession and the bankrupt asset. The necessity of paying the creditors and the declaration of bankruptcy as a restrictive measure to exercise the possession considering the unavailability of heritage object of bankruptcy proceedings. Keywords: Adverse possession. Bankrupt asset and universality of rights. Unavailability of assets. more...

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the concept of adverse possession. An owner of an estate in land (paper owner) is under no obligation to make use of that land; mere neglect will not end ownership. However, where that land is adversely possessed by another for the required period, the paper owner will lose his title to the land. Through his acts of adverse possession, the adverse possessor acquires a better title to the land than the paper owner. This is so even if such acts stem from an initial wrong, such as a trespass. more...

Modern Land Law is one of the most current and reliable textbooks available on land law today, offering a lively and thought-provoking account of a subject that remains at the heart of our legal system. Dispelling any apprehension about the subject’s formidability from the outset, this compact textbook provides an absorbing and exact analysis of all the key legal principles relating to land. Written with students firmly in mind, a clear introduction to every chapter frames each topic in its wider context and corresponding chapter summaries help to consolidate learning and encourage reflection. The 11th edition has been thoroughly revised and updated to address key developments in the law including quasi-easements, recent developments around the interplay of criminal law and land law in adverse possession, and the difficulties and uncertainties inherent in determining remedy in cases of proprietary estoppel. more...

This article reviews the statutory reform of Chinese private international law from the perspective of property rights which concludes that notwithstanding the significant improvement, the new Private International Law Act of China are fraught with various defects. In the field of property, Article 37 and Article 38 are particularly problematic as the introduction of unlimited party autonomy into the choice-of-law rules for movables and res in transitu is theoretically indefensible and practically troublesome. Moreover, there are a number of defects or problems with Article 39 and Article 40 of the Act respectively. What’s more, the Act neglects some other important types of property that call for special treatment, such as cultural property, and assignment of debt. In the end, the article puts forward the corresponding suggestions for improvement. more...

The question of the balance between the protection and the coercive measures of the property rights still remains relevant to the Courts or prosecutors each time dealing with the issues of applying a temporary limitation of the property rights. Lithuanian law establishes several ways of affecting property rights: it could be a coercive measure under the Criminal Procedure Code or a penal sanction under the Criminal Code. The temporary limitation of the property rights as a coercive measure is related to the human right of the inviolability of property. Therefore, any restriction of the property rights should be imposed as an ultima ratio measure, without which it would not be possible to achieve the required goals in the criminal procedure. It should be noted that even if justifying the use of the coercive measure to achieve the required goals, the right of the inviolability of property is violated if such measure is applied too long or when imposition of such measure is disproportionate. It is worth mentioning that the coercive measure - temporary limitation of the property rights could be applied even during the pre-trial investigation when there is no Court’s decision about the person’s guilt. For such reason the imposition of such coercive measure should be strictly measured. Because of fast advancement of technology and digital products in today’s world, the circle of the objects of the ownership becomes wider, broadening the meaning of the property. Accordingly, the coercive measures, directed to the restriction of the property rights, should adapt to the changing environment. According to the Lithuanian and international case law and legal doctrine, this article analyses problems when applying a temporary limitation of the property rights. Although the applicable terms of such coercive measure are set in the Criminal Procedure Code, the number of extensions in the cases involving serious or very serious crimes shall not be subject to any limits. When the case is forwarded to the Court, the Court, disposing of the case, decides concerning the imposition of the temporary limitation of the property rights or its application, and the number of extensions is also unlimited. In practice, property rights of the individuals are limited to a relatively long period of time, which results in the loss of the value of the property. Such loss, after the Court enters the decision, affects both the person whose property rights were restricted and the person, for which the benefit of the property rights was restricted. After the evaluation of the Criminal Procedure Code, which provides the possibility to impose a temporary limitation of the property rights in order to secure a civil claim, even when such civil claim is not submitted (and could not be submitted until the evaluation of the evidence in the Court proceedings) in order to avoid unnecessary use of the coercive measure, it is proposed to amend the Code, setting a term within which the victim should make a decision whether to bring civil claim or not. The term should not stop the victim to bring such civil claim later in the process. Accordingly, in order to protect the value of the property from the depreciation, when the temporary limitation of the property rights is imposed in the proceedings, it is advisable to allow to dispose such property before the Court enters final judgment. The prosecutor or the Court by the initiative of the prosecutor in regard to the circumstances of the case could enter a decision to dispose such property if there is no complaint from the owner of such property. After this, the limitations could be imposed to the funds obtained from the sale of such property. more...

In June 2015, a United States district court in California found that the Madrid-based Thyssen-Bornemisza Collection Foundation had acquired ownership of a Camille Pissarro painting under Spanish adverse possession law. Unless overturned on appeal, the decision will end the long-running efforts by the heirs of Lilly Cassirer Neubauer to recover the painting, which was wrongfully taken by the Nazis. The decision to apply Spanish law determined the outcome of the case, and the court’s discussion of choice-of-law issues is notable given the decisive effect that the applicable law often has in art and cultural property ownership disputes. After describing the background and reasoning of the case, this case note comments on two interesting aspects of the decision: its discussion of choice of law in the context of suits against foreign government entities and its treatment of a recent amendment to California law intended to make it easier to recover stolen art. more...

In order to acquire an interest in land, certain formality requirements have to be satisfied. Legal estates and interests cannot, in the normal course, be acquired informally. This chapter explores one exception to this position: the law of adverse possession. A claim to adverse possession is a claim brought by a trespasser or squatter who has been in possession of another's land for a long period of time. Land law recognizes other rights arising after use over a protracted period — for example, easements by prescription — but adverse possession is quite different, mostly due to its effects. If successful, the trespasser or squatter becomes the legal owner of the land. The chapter discusses the basis for adverse possession; analysing a claim to adverse possession; establishing a claim to adverse possession; terminating or interrupting a period of adverse possession; the effect of adverse possession; adverse possession and leasehold land; criminalizing residential squatting and adverse possession and human rights. more...

Kruse maintains despite all the customary land preservation mechanisms, there is still opportunity for mischief under the current registration statutes. Kruse explains that not only has the High Court allowed individualized land holding, but the Fono has also made the individualization process relatively easy by passage of the Land Registration Act. The chapter points out that any individual can register a claim to any land not previously registered, which comprises majority of land in the territory. If no one objects within a proscribed period then the land may be individualized. Kruse scrutinizes the High Court’s application of British influences, Henry Maine and William Blackstone’s property concepts of the individual right that converted communal lands to individual ownership. Individual rights were applied and accepted by the High Court to evidence individual ownership over bush lands by applying European principles and concepts of old English law through adverse possession and individual rights. more...

Adverse possession is proved only when possession is peaceful, open, continuous and hostile. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted for in order to constitute adverse possession. Animus possidendi is one of the ingredients of adverse possession and unless the person possessing the land has the requisite animus the period for prescription does not commence. Non-use of the property by the owner even for a long time does not affect his title. But the position alters when another person takes possession of the property and asserts a right over it. Adverse possession must start with a wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile, and continued over the statutory period. more...

Serbian Civil Code, modeled based on the Austrian Civil Code (1811), regulates in a unique way the influence of the time on the acquisition and loss of the rights. The uniform regulation of the influence of time on the right dates back to the Roman concept of praescriptio. Based on the ancient Romans the term praescriptio means loss and creation of right, influenced by the time. The concept praescriptio extinctive means loss of rights due to non-exercising the right in a certain time period, while institute praescriptio aqcuisitive means acquisition of right. In the Serbian Civil Code, influence of time on the right is defined by the statute of limitation. Statute of limitation includes two legal concepts, i.e. statute of limitation in a strict sense, meaning loss of rights, and statute of limitation in terms of acquisition of rights, recognized in modern domestic law as adverse possession usucapio. The guiding idea for the creation of this work was to review the concept of adverse possession (concept, conditions for acquisition of right by adverse possession, types of adverse possession) according to the provisions of Serbian Civil Code. more...

Acquisitive prescription in civil law and adverse possession in common law produce particularly strong effects in law since they are means whereby property may be gained through the passage of time. Good faith plays a relatively modest role in acquisitive prescription/ adverse possession, which does not necessarily means that acquisitive prescription or adverse possession are immoral. Not only good faith has a certain role, both substantial and formal, but there are theoretical justifications that justify acquisitive prescription/ adverse possession and renders those mechanisms legitimate. Aside from justifications founded upon moral and economical arguments, what justifies it above all is a justification founded on social order related to the public interest. Moreover, additionally to a theoretical legitimacy, acquisitive prescription/ adverse possession has an utility or practical legitimacy, especially in traditions where registration of rights are essentially a matter of opposability to third parties, but also to a lesser extend in Torrens-like registration systems. Finally, the argument can be made according to which acquisitive prescription is a form of private expropriation. A compensation of the disposed owner could then infuse greater legitimacy to the law of acquisitive prescription/ adverse possession., La prescription acquisitive du doit civil et la possession adverse de la common law produisent des effets juridiques importants, puisqu’ils permettent d’acquérir la propriété suite au passage du temps. La bonne foi joue un rôle relativement modeste dans la prescription acquisitive ou dans l’adverse possession, ce qui n’implique toutefois pas l’immoralité de ces mécanismes. Non seulement la bonne foi joue un certain rôle, tant d’un point de vue substantiel que formel, mais il existe des arguments théoriques qui justifient la prescription acquisitive et la possession adverse et rendent ces mécanismes légitimes. Aux côtés de justifications fondées sur des arguments moraux et économiques, ce qui permet surtout de les légitimer est un argument fondé sur l’ordre social relié à l’intérêt public. Par ailleurs, en plus d’une justification théorique, la prescription acquisitive et la possession adverse ont une utilité ou légitimité pratique, spécialement dans les traditions où la publicité des droits est essentiellement une question d’opposabilité aux tiers, mais aussi dans une moindre mesure dans les traditions qui ont adopté le système de publicité Torrens. Finalement, on peut se demander si la prescription acquisitive ou la possession adverse peut être analysée comme une forme d’expropriation privée. La compensation du propriétaire dépossédé pourrait alors infuser une plus grande justice au droit de la prescription acquisitive et de la possession adverse., Emerich Yaëll. Comparative overview on the transformative effect of acquisitive prescription and adverse possession : morality, legitimacy, justice. In: Revue internationale de droit comparé. Vol. 67 N°2,2015. La comparaison en droit public. Hommage à Roland Drago. pp. 459-496. more...

The Supreme Court’s interpretation of the Recess Appointments Clause in NLRB v. Noel Canning stands as one of the Supreme Court’s most significant endorsements of the relevance of “historical gloss” to the interpretation of the separation of powers. This Article uses the decision as a vehicle for examining the relationship between interpretive methodology and historical practice, and between historical practice and textual ambiguity. As the Article explains, Noel Canning exemplifies how the constitutional text, perceptions about clarity or ambiguity, and “extra-textual” considerations such as historical practice operate interactively rather than as separate elements of interpretation. The decision also provides a useful entry point into critically analyzing the concept of constitutional “liquidation,” which the majority in Noel Canning seemed to conflate with historical gloss but which seems more consistent with the approach to historical practice reflected in Justice Scalia’s concurrence in the judgment. Finally, this Article argues that the historical gloss approach, when applied cautiously and with sensitivity to the potential concerns raised by Justice Scalia and others, is not vulnerable to the charge of licensing executive aggrandizement by “adverse possession.” more...

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the basic principles for adverse possession; adverse possession against land which is subject to a lease; and the complex rules applicable where adverse possession is taken against land which is registered title. It covers the rationale of adverse possession; possession giving a right to sue trespassers; the Limitation Act 1980; commencement of adverse possession; offence of squatting in a residential building; preventing the acquisition of title by adverse possession; and the effect of adverse possession. more...

DOES wrongdoing by a squatter prevent him from acquiring title to another person's land via the law of adverse possession? The answer is plainly “no” where the squatter is a civil, tortious wrongdoer: the law not only condones, but positively requires a successful adverse possession claimant to have committed the tort of trespass over the true owner's land (this condition is inherent in the requirement that the squatter's possession be “adverse”). But what happens where the tortious acts that establish the squatter's adverse possession also constitute a criminal offence? This was the tricky question facing the court in Best v The Chief Land Registrar [2014] EWHC (Admin) 1370. more...

This paper discusses the importance of private property rights not to trade a resource, with reference to the economic emphasis on transactional efficiency due to Hayek's friend, Ronald H. Coase (1910–2013). These were stressed by James M. Buchanan (1919–2013), a supporter of Austrian economics, for the planning and development of a market economy that respects human dignity based on freedom. It has been explained that the ideas of Coase and Buchanan are not contradictory, but complementary. The former focused on voluntary contracting and the latter on institutional stability that safeguards the freedom of contract. Three contentious topics in property planning and development, namely trends in the exercise of eminent domain and land resumption in favour of doubtful public use or purpose; a legislative tendency to reduce the period of occupation for adverse possession; and government eviction of squatters from public land, are illuminated by such rights not to trade. more...

This paper, delivered as the Annual Francis Gurry Lecture at Melbourne University in 2012, considers intellectual property law as a species of public law serving public purposes. The purposes reflecting the interests of creators, owners and users of intellectual property rights are in tension. That tension affects the normative clarity of intellectual property law and its effective enforcement. It may inform the construction of intellectual property statutes and the application of evaluative criteria of validity under those statutes. In Australia, intellectual property statutes are made under constitutional authority with respect to specified categories of intellectual property, the specific content of which may vary with technological change. Official decisions effecting the creation or discontinuance in intellectual property rights are statutory and subject to constitutionally based judicial review in addition to particular appeal rights conferred by statute. At the heart of the public law aspect of intellectual property rights is a tension between their characterisation as proprietary or instrumental. more...