Law in Modern World Essay Example

  • Category:
    Law
  • Document type:
    Essay
  • Level:
    Undergraduate
  • Page:
    5
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    3183

12Law in Modern World

 In the modern world, titles to land are registered and legally protected by law. In contrast, the adverse possession system is justified by actual possession instead of registration. Why does our property law permit a co-existence of the two conflicting systems?

Introduction

The registration of land generally means the systems that are put in place to ensure that matters which are concerned with the possession, ownership and other rights to land can be legally recognized and recorded. This recording is usually done formally by a recognized government department or agency that provides evidence of title so as to facilitate transactions and to prevent unlawful disposal of the land1. The information that is recorded is and the protection provided will vary according to the jurisdiction. There are some countries which practice common laws such as the jurisdictions in the Commonwealth countries. In these countries, the title deed registration systems were replaced by new systems that are broadly classified into two basic categories, namely, the English title system and the Torrens title system. The English system is basically a modified version of the Torrens title system2. Registering of titles provides useful and up-to-date information and official records of the true owners of land. This eliminates the need to examine and analyze the past history of the title because the true records show these details. Registering titles is also a straightforward and safe way of legally transferring land between different parties. Registration therefore cuts the cost of conveyancing and helps in the prevention of fraud3. This paper discusses the processes of legally registering titles to land in the modern world. It also elaborates why the adverse possession system is justified by actual possession instead of the registration of titles of land. This is seen as a contrast between the two systems that are both permitted by the property laws. This essay therefore discusses why the property permits the co-existence of two conflicting systems in the process of owning and registering land. The paper seeks to find out the reasons for these differences.

The Registration by Title System

Registering title is usually very important for a number of reasons. The registration of title to land ensures is recognized and executed by processes of the law. An individual is protected in the sense that if he or she suffers a loss as a result of an omission or a mistake in the register, the individual can easily be able to get compensation. The process of registration can also sort out some major problems in the title. Some of these problems may arise as a result of the conditions set by the sales and enquiries process. It is also easy to successfully re-establish titles that had been unregistered by simply registering them even after the title deeds have been destroyed or lost4.

Requiring a title deed should help to reduce the costs of ownership of land because it makes the work of conveyancing a lot simpler. This also helps in the prevention of fraud which can be caused by copying title deeds or withholding them unfairly. This is because each title receives an official plan for the land it represents once it has been registered. According to the law, registered titles are supposed to have three parts. The first part of the property register should describe the property itself and the beneficial rights that come with it. The second part of the registered title is called the proprietorship register and it records the real owner of the property in question. The final part is the charges register which clearly gives details of mortgages and other rights that may adversely affect the property in one way or the other5.

Registering title to property acts as a way of proving that one is the real owner of the property in question. When an individual applies to register title to a property that they claim to own, they are required by the law to prove that they are the real owners of the said property. When one fully proves that they own a particular property, it is legally correct to record their name in the proprietorship register. This recording of the name show that one is the registered proprietor of the land in question. The law therefore permits the system of registering titles to property after one can prove that a particular piece of land legally belongs to him or her. The law further protects such kind of property that is registered under this system since it is recognized as belonging to a particular person6.

In the modern world, titles to land are usually registered and legally protected by the law. As seen above, for one to be recognized as the true owner of a particular piece of land, they have to have acquired it legally and prove ownership of that land before they are given title deeds to prove that they are the real owners of the land. This has been seen to reduce cases of fraud because it has become easier to identify the real owners of land once someone has titles of ownership of property. The legal system also recognizes the real owners of land as those who have registered their land legally under titles. The modern law therefore protects the rights of such land owners when it comes to any disputes that may arise. The law will only recognize the people with registered titles to property as the real owners of the land and will protect their interests as opposed to those who do not have registered titles to land7.

In legal terms, a title deed is a legal document which is used by the law to prove the ownership of a given piece of land or property. Most of the times, people use title deeds to prove that they are the true owners of homes and motor vehicles. However, a deed of title could be issued for any other form of property as long as it is approved by the law. In many jurisdictions, title deeds are meant to give certain privileges and rights to the person whose name appears on them. These title deeds are necessary when one is planning to transfer a piece of land to another person. They must first prove that the piece of land belongs to them before they can have it transferred to another person or to other people. All these are legal requirements. The law grants the holders of title deeds ownership rights. These rights allow the holders of these properties to do certain things that are allowed by the law with their land. The deed allows the owners to develop their property and to transfer it in case they wish to. Typically, a title deed describes a certain property and gives details about it in such a way that can never be confused with another property. These descriptions are given along with the name of the person who is legally entitled to the property. This helps to uniquely link a piece of land to its owner. Multiple owners can also be listed on a title deed if they all legally own the same piece of land. Title deeds are officially sealed to indicate the deed is legally recognized and has been recorded. The deed is also signed by the owner of the property alongside a witness who may be a clerk from the office or department that provides the title deeds8.

The Adverse Possession System

The adverse ownership on the other hand is a process that allows the ownership of property to change adversely. Adverse possession is a common law concept which is concerned with the title and the real property. This includes land and all the fixed structures that have been built upon that particular land. Through the adverse possession system, title to another person’s real property can easily be acquired without any form of compensation. This is done by holding the property in a way that seems to conflict with the rights of the true owner or owners of the real property for a specified period of time. The system of squatters’ rights is one good example of adverse forms of possession.

Adverse possession systems may arise in different circumstances that depend on the type of situation. These circumstances will determine the type of title to be acquired by the person who is set to receive the title from the title from the original owner of the real property. This adverse possession system may be through a fee simple title, through mineral rights and through other interests in real property. The origins of adverse property laws have their basis in common law precepts and in statutory actions. This makes the details of adverse possession systems to vary from jurisdiction to jurisdiction. The statute of limitations governs the required period uninterrupted possession. Common law does not allow a person to claim the right to possession of a particular piece of land by simply alleging that the land had come to their possession in the past. This is quite different with the adverse possession system whereby one can be justified to own a particular piece of land because they were affiliated to it in some way in the past or because they have a particular interest in it at the moment. The adverse possession system is the system whereby an individual who is not the person legally recognized to own a piece of land is actually allowed to own a particular piece of land and become its owner on the basis that they have occupied it for a specified period of time9.

The adverse possession system therefore allows one to own a piece of land just because they have occupied that piece of land for a long time or they have been using it for a specified period of time for activities such as agriculture. This system is referred to as adverse because the real owner of the land who is registered with a title by the law may experience problems with other people who have been occupying the particular piece of land for a long period of time. Disputes may arise between the two parties because both of them feel that it is their right to own the particular pieces of land in question. The person who is registered with a title as owning the land will have the legal right to claim the land and the other person who has been occupying the piece of land for a specified period of time may also claim ownership over the land by claiming that they have occupied it for a long period of time.

The adverse possession system is considered to be adverse because the criteria that it uses to identify one as the owner of a particular piece of land are quite queer to some people. The issue comes about where the adverse possession system gives someone the right over a piece of land just because the person has been using that land or has occupied it for a long period of time without dispute from the supposed real owners. This means that a person who occupies a piece of land for some years can be considered as the owner of that land of the owner with a registered title had known about the use of the said land by other person and had not taken any legal action to dispute it, then the land can legally belong to the person without the title who has been using it for some time10.

The law, through the adverse system, allows a third party who has been in possession of another person’s land for a specified period of time to claim ownership of that land, especially if the owner had not claimed it or disputed its use by another person. This period of time varies from country to country or jurisdiction to jurisdiction. In some areas, the period is 12 year while in other regions, it is over twenty years. The law therefore recognizes these third parties as the real owners of the land because they have occupied them for a long time without receiving any opposition from the person who claims to be the real registered owner of the land11.

Ironically, the law allows the co-existence of these two systems of land ownership. These two systems seem to be in conflict with each other because they propose two different ways of owning land yet they are both supported by the law. These two systems contradict each other because one requires the owner of a piece of land or property to be legally registered with a title so as to prove that they are the real owners of the land. The other adverse possession system allows one to own a particular piece of land on grounds of having occupied the land or used it for a specified period of time12.

Why the law permits the co-existence between the two systems

It is now evident that the two systems of land ownership are quite conflicting and contradictory. The law appears to support these two systems despite the fact that they are different from each other yet they both deal with the acquisition of land. In my opinion, the law seems to support these two systems because both of them are valid in their own unique ways. First, the registration of land by title is accepted because a person must first provide sufficient evidence that they own a particular piece of land or property. Once the evidence is provided, the individual is accorded the right to that property and can do with it several things that are allowed by the law such as developing it or transferring it legally. This method makes a lot of sense. The other system of adverse possession is also accepted by the law because it makes a lot of sense. When a person makes use or occupies a particular piece of land for a very long period of time such as twenty years, and during this time, the use or occupation of this land has never been disputed or challenged in a court of law, then that person should be allowed to claim ownership of that land. This is because if the land belonged to someone else, how come that person has never realized that someone has been using it for very many years such as 20? Why did the supposed owner not dispute this use or occupation of the land in a court of law? This shows that the person was never interested in the property of land and that it why he or she has never discovered or disputed its use for so many years. Both systems therefore hold water and the law accepts them as ways of acquiring and registering land.

Conclusion

In conclusion, it may be difficult to fully explain why the law allows these two systems to exist yet they are conflicting. The system which registered titles to land and the other system that adversely allows the possession of land are two unique and conflicting systems. According to the essay, it has been seen that the registration of land generally means the systems that are put in place to ensure that matters which are concerned with the possession, ownership and other rights to land can be legally recognized and recorded. This recording is usually done formally by a recognized government department or agency that provides evidence of title so as to facilitate transactions and to prevent unlawful disposal of the land. The information that is recorded is and the protection provided will vary according to the jurisdiction. There are some countries which practice common laws such as the jurisdictions in the Commonwealth countries. In these countries, the title deed registration systems were replaced by new systems that are broadly classified into two basic categories, namely, the English title system and the Torrens title system. The English system is basically a modified version of the Torrens title system. Registering of titles provides useful and up-to-date information and official records of the true owners of land. This eliminates the need to examine and analyze the past history of the title because the true records show these details. Registering titles is also a straightforward and safe way of legally transferring land between different parties. The adverse ownership on the other hand is a process that allows the ownership of property to change adversely. Adverse possession is a common law concept which is concerned with the title and the real property. This includes land and all the fixed structures that have been built upon that particular land. Through the adverse possession system, title to another person’s real property can easily be acquired without any form of compensation. This is done by holding the property in a way that seems to conflict with the rights of the true owner or owners of the real property for a specified period of time. The system of squatters’ rights is one good example of adverse forms of possession.

References

ALSTON, L. J., LIBECAP, GARY, and MUELLER, BERNARDO, Titles, Conflict, and Land Use: The Development of Property Rights and Land (Michigan: University of Michigan Press, 2002).

 ANDREW, G., Contracting With Companies (London: Hart Publishing, 2005).

BRUCE, K., An Unruly Child: A History of Law in Australia (Allen & Unwin: Sydney, 1995).

DUMAS, J., Registering Titles to Land. A Series of Lectures Delivered at Yale (Yale: Nabu Press, 2003).

JOHN, C., Understanding the Australian Legal System (Lawbook Co.: Sydney, 2002).

PATRICK, P., Tradition and Change in Australian Law (Sydney: LBC Information Services, 2001).

RACKEMANN, C. S., Draft of an Act Designed to Simplify and Improve Transfers of Land and Titles to Land in Massachusetts, and to Enlarge the Jurisdiction of the Land Court (Cambridge, MA: BibliBazaar, 2010).

RIDDALL, J. G., Land Law (7th edn.; England: Lexis-Nexis Butterworths).

ROSEMARY, B., The Law Handbook (Redfern Legal Centre Publishing: Sydney, 2007).

ROWTON-SIMPSON, S., Land Law and Registration (Cambridge, MA: Cambridge University Press, 1996).

1
ALSTON, L. J., LIBECAP, GARY, and MUELLER, BERNARDO, Titles, Conflict, and Land Use: The Development of Property Rights and Land (Michigan: University of Michigan Press, 2002).

2
 ANDREW, G., Contracting With Companies (London: Hart Publishing, 2005).

3
BRUCE, K., An Unruly Child: A History of Law in Australia (Allen & Unwin: Sydney, 1995).

4
DUMAS, J., Registering Titles to Land. A Series of Lectures Delivered at Yale (Yale: Nabu Press, 2003).

5
JOHN, C., Understanding the Australian Legal System (Lawbook Co.: Sydney, 2002).

6
PATRICK, P., Tradition and Change in Australian Law (Sydney: LBC Information Services, 2001).

7
RACKEMANN, C. S., Draft of an Act Designed to Simplify and Improve Transfers of Land and Titles to Land in Massachusetts, and to Enlarge the Jurisdiction of the Land Court (Cambridge, MA: BibliBazaar, 2010).

8
RIDDALL, J. G., Land Law (7th edn.; England: Lexis-Nexis Butterworths).

9
ROSEMARY, B., The Law Handbook (Redfern Legal Centre Publishing: Sydney, 2007).

10
ALSTON, L. J., LIBECAP, GARY, and MUELLER, BERNARDO, Titles, Conflict, and Land Use: The Development of Property Rights and Land (Michigan: University of Michigan Press, 2002).

11
ROWTON-SIMPSON, S., Land Law and Registration (Cambridge, MA: Cambridge University Press, 1996).

12
 ANDREW, G., Contracting With Companies (London: Hart Publishing, 2005).