Tuesday, 15 January 2013

Law of Property: Titles

Law of Property: Titles

What is title?

‘Title’ is subject to a variety of definitions. The main idea of a title is that it is a notion that denotes the rights or interests or entitlement in a property. In the English Law jurisdiction, title is not concerned with highlighting an absolute owner. In fact, in many occasions courts will be faced with two different parties with the same title. It is used to weigh the relative strengths of the interest or right in a property and thus resolve a dispute between two parties. For example, both X and Y may have an interest in property Z, but the title’s will denote strengths of the interest such that X may have a stronger entitlement as they have a fee simple and B a lease. 

There exists no statutory definition of title, but the commonplace understanding is that it is a right to assert your interests in X against strangers. It is a legal concept, as opposed to possession which is a practical notion being defined by measurable variables like exclusive possession and an intention to possess. 

As mentioned before, in English Law there is no such thing as an absolute owner and so the emphasis is on possession and title. The reason for this is that ownership brings up conceptual and philosophical issues which cannot be answered, as we saw with theories such as Honoré’s ‘Bundle of Rights’. The fact that the English legal system is adversarial i.e. courts are looking to resolve a dispute between two parties rather than find the ‘real truth’ has had a key role in making possession and title the centre of establishing property entitlements.

However, with the introduction of land registration in 1925, the nature of ownership is changing. The system implies that there is a such thing as an absolute owner  because courts will always given preference to the registered owner of land. 

Glancing back on the Mabo 1992 case, when the British took sovereignty of Australia, they acquired radical title i.e. an entitlement to grant beneficial property interests such as fee simple estates but not any interest that overrode the original Aboriginal rights. However, but because they used the land the title gained more strength and it did not remain as merely a ‘native title’.

How is title acquired?

There are two ways to acquire a title?

  1. Derivative 

Derivative titles are titles that derive from a pre-existing title e.g. in the sale of a property, gift, inheritance, grants such as leases etc.

  1. Original

Original titles are titles that have been created from scratch and do not rely on an pre-existing title for existence. In land, these are becoming extremely difficult to find. Examples include, intellectual property that you create, colonial titles (here the Lockean argument of mixing labour with property is used) and in the English legal system,  adverse possession (which is now illegal in residential areas).

As one can see from the registration system, the property regime is becoming more concerned with the proof of title than actual ownership.In this jurisdiction, the law is concerned with asking people to proof their titles, protection it with registration and in doing so, prevent people with using courts to prove title. 


Registration was introduced in 1925 and in 2002 became compulsory. 

Pre-1925, you would have have to prove your title through possession, provenance and through limitation of action. 

  1. Possession

Possession is typically established by finding exclusive possession and intention to possess. 

  1. Provenance

Provenance, refers to the notion of derivative title, it is the idea of looking at the source of ownership. Previously, owners would have to demonstrate a chain of 60 years but now has been reduced to 15 years and applies only unregistered land. This is because provenance in practical proved tiresome and extremely difficult. 

  1. Limitation of action

The Limitation Act 1980 is the source of this requirement. It gives a person with a better title 12 years to make their claim otherwise the squatter or party with the original weak entitlement gets the stronger entitlement. 

Registration has been great in making property transactions easier and proving title as provenance and limitation of  action can be quite problematic. However, it is important to point out some of the weaknesses of registration and that includes that it can be impractical on  certain types of properties such as easements - is it really reasonable to ask individuals to register pathways etc? What about the Lockean argument that if you mix your labour with certain resources than surely that should be yours, is it fairer that registration is worth more? [it is interesting to see that actually money is in essence the fruits of your labour so when you register you are indirectly using your labour to acquire property]. Furthermore, the registration system can lead to unjust results which should be point of the legal system, to avoid injustice. This is exacerbated with issues of fraud and human error. 

“Nemo dat quad non habet” - “No one gives what he does not have”

Nemo dat quad non habet stresses the importance of title, because it ensures that people are not giving more than what they have. So, you can’t give the title of a fee simple to your daughter if you only have a lease.  

It is extremely important to protect ‘good’ and ‘proper’ titles and this is what the property regime seeks to do especially with the new registration system. 

Cash is an exception for practical reasons. It is difficult to trace the various possessors of cash and if we started doing that it makes daily life incredibly difficult. This is why if you steal cash, you have the best title to it as you are the possessor. 

The nemo dat quad non habet rule is also in conflict with the financial sector of the 21st century, as the sector is reliant on debts which aren’t always possible to repay.


The council gave a license to the defendant to use the property at certain times. The defendant was a charitable housing organisation that granted the accommodation for a weekly rent. The plaintiff claimed that under the Landlord and Tenant Act 1985, that the defendant had a legal obligation to repair and the defendant responded this was not possible because of nemo dat quad non habet. The judges created a non-propreitary lease as they could not establish a lease because of nemo dat quad non habet. 

Possession as root of title

3 consequences of when someone takes possession of land without permission:

  1. They acquire a title to the land better than anyone else through possession.
  2. The real owner acquires the right to recover possession
  3. The real owner misses the limitation period to claim his entitlement and the property moves under the possession of the person who takes possession.

In unregistered land, after 12 years of squatting you cannot be evicted and thus the squatter has the next best right to the property after the original owner. It all relates back to Limitation Act 1980 as opposed to an property concept. 

What about registered land?

After 10 years of squatting, the squatter can go to the Land Registry, prove that he has had possession for 10 years and make a claim that he wants to acquire the land out of adverse possession. The Land Registry send a notification to the original owner giving them 65 days to object. 

If he/she objects then they have two years to evict the squatter but if he/she does not the squatter becomes the owner. 

The idea is that if you own land, you also have responsibility for the land. The intention of the owner is not of importance in the process of adverse possession e.g. it is not good enough to say I had plans to build in 50 years time. 

What counts as adverse possession?


The the plaintiff allowed his neighbour, the defendant to utilise a part of his land under a contractual agreement that stated that once the contract ended a new contract would need to be formed. The plaintiff did not in fact enter a new contract but the defendant continued to occupy because he wanted to develop the land. The defendant after being in adverse possession of the land for 12 yrs seeking to attain the property via prescription. 

The judgement established that possession requires:

  1. Factual Possession
  2. An intention to possess not own

How the case progressed in the legal system?

High Court - Under Land Registration Act 1925, defendants were lawful owners. 

Court of Appeal - Defendants only using land because of contract thus did not have possession thus could not have the land. 

House of Lords- Agreed with the High Court, as a result of this the 2002 Land Registration Act was created and outlawed prescription and required that if land was to be adverse possessed, the original owner would have notification and a chance to object.

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