Marais Acquisitive 2011 PDF

Acquisitive Prescription in View of the Property Clause
Ernst Jacobus Marais
Dissertation presented in partial fulfilment of the requirements for the degree of
Doctor of Laws at Stellenbosch University
Promoter: Professor AJ van der Walt
Faculty of Law
Department of Public Law
August 2011
Stellenbosch University http://scholar.sun.ac.za
DECLARATION
By submitting this dissertation electronically, I declare that the entirety of the work contained
therein is my own, original work, that I am the authorship owner thereof (unless to the extent
explicitly otherwise stated) and that I have not previously in its entirety or in part submitted it
for obtaining any qualification.
EJ Marais, 05 August 2011, Stellenbosch
Copyright 2011 Stellenbosch University

All rights reserved
I
SUMMARY
Acquisitive prescription (prescription), an original method of acquisition of ownership, is
regulated by two prescription acts. Prescription is mostly regarded as an unproblematic area
of South African property law, since its requirements are reasonably clear and legally certain.
However, the unproblematic nature of this legal rule was recently brought into question by
the English Pye case. This case concerned an owner in England who lost valuable land
through adverse possession. After the domestic courts confirmed that the owner had lost
ownership through adverse possession, the Fourth Chamber of the European Court of Human
Rights in Strasbourg found that this legal institution constituted an uncompensated
expropriation, which is in conflict with Article 1 of Protocol No 1 to the European
Convention on Human Rights and Fundamental Freedoms 1950. This judgment may have
repercussions for the constitutionality of prescription in South African law, despite the fact
that the Grand Chamber on appeal found that adverse possession actually constitutes a
mere (constitutional) deprivation of property. Therefore, it was necessary to investigate
whether prescription is in line with section 25 of the Constitution.
To answer this question, the dissertation investigates the historical roots of prescription in
Roman and Roman-Dutch law, together with its modern requirements in South African law.
The focus then shifts to how prescription operates in certain foreign systems, namely
England, the Netherlands, France and Germany. This comparative perspective illustrates that
the requirements for prescription are stricter in jurisdictions with a positive registration
system. Furthermore, the civil law countries require possessors to possess property with the
more strenuous animus domini, as opposed to English law that merely requires possession
animo possidendi. The justifications for prescription are subsequently analysed in terms of
the Lockean labour theory, Radins personality theory and law and economics theory. These
theories indicate that sufficient moral and economic reasons exist for retaining prescription in
countries with a negative registration system. These conclusions are finally used to determine
whether prescription is in line with the property clause. The FNB methodology indicates that
prescription constitutes a non-arbitrary deprivation of property. If one adheres to the FNB
methodology it is equally unlikely that prescription could amount to an uncompensated
expropriation or even to constructive expropriation. I conclude that prescription is in line with
the South African property clause, which is analogous to the decision of the Grand Chamber
in Pye.
II
OPSOMMING
Verkrygende verjaring (verjaring), n oorspronklike wyse van verkryging van eiendomsreg,
word gereguleer deur twee verjaringswette. Verjaring word grotendeels beskou as n
onproblematiese aspek van die Suid-Afrikaanse sakereg, aangesien die vereistes daarvan
taamlik duidelik en regseker is. Nietemin is die onproblematiese aard van hierdie
regsinstelling onlangs deur die Engelse Pye-saak in twyfel getrek. Hierdie saak handel oor n
eienaar wat waardevolle grond in Engeland deur adverse possession verloor het. Nadat die
plaaslike howe die verlies van eiendomsreg deur adverse possession bevestig het, het die
Vierde Kamer van die Europese Hof van Menseregte in Straatsburg bevind dat hierdie
regsrel neerkom op n ongekompenseerde onteiening, wat inbreuk maak op Artikel 1 van die
Eerste Protokol tot die Europese Verdrag van die Reg van die Mens 1950. Hierdie uitspraak
kan implikasies inhou vir die grondwetlikheid van verjaring in die Suid-Afrikaanse reg, ten
spyte van die Groot Kamer se bevinding op appl dat adverse possession eintlik neerkom
op n grondwetlik geldige ontneming van eiendom. Derhalwe was dit nodig om te bepaal of
verjaring bestaanbaar is met artikel 25 van die Suid-Afrikaanse Grondwet.
Vir hierdie doel word die geskiedkundige wortels van verjaring in die Romeinse en Romeins-
Hollandse reg, tesame met die moderne vereistes daarvan in die Suid-Afrikaanse reg,
ondersoek. Daar word ook gekyk na hoe hierdie regsrel in buitelandse regstelsels, naamlik
Engeland, Nederland, Frankryk en Duitsland, funksioneer. Hierdie regsvergelykende studie
toon dat verjaring strenger vereistes het in regstelsels met n positiewe registrasiestelsel.
Verder vereis die sivielregtelike lande dat n besitter die grond animo domini moet besit, wat
strenger is as die Engelsregtelike animus possidendi-vereiste. Die regverdigingsgronde van
verjaring word vervolgens gevalueer ingevolge die Lockeaanse arbeidsteorie, Radin se
persoonlikheidsteorie en law and economics-teorie. Hierdie teorie illustreer dat daar
genoegsame morele en ekonomiese regverdigings vir die bestaan van verjaring is in lande
met n negatiewe regstrasiestelsel. Hierdie bevindings word ten slotte gebruik om te bepaal of
verjaring bestaanbaar is met die eiendomsklousule. Die FNB-metodologie toon dat verjaring
neerkom op n geldige, nie-arbitrre ontneming volgens artikel 25(1). Indien n mens die
FNB-metodologie volg is dit eweneens onwaarskynlik dat verjaring op n ongekompenseerde
onteiening of selfs op konstruktiewe onteiening neerkom. Gevolglik strook verjaring wel
met die Suid-Afrikaanse eiendomsklousule, welke uitkoms soortgelyk is aan di van die
Groot Kamer in die Pye-saak.
III
BEDANKINGS / ACKNOWLEDGMENTS
Dit sou nie vir my moontlik gewees het om hierdie proefskrif te skryf sonder die hulp en
bystand van n hele aantal sleutelpersone nie. Eerstens wil ek my promotor, Prof Andr van
der Walt, bedank vir die voorreg om onder sy inspirerende aanmoediging te kon skryf en
werk, asook vir al die unieke geleenthede wat hy aan my gebied het ten einde hierdie
proefskrif te voltooi. Ek is oneindig dankbaar vir jou integriteit, vriendelikheid,
ondersteuning en hulp.
I wish to thank the following academics from aboard who played a central role in the writing
of my dissertation: Prof Sjef van Erp (Universiteit Maastricht), Dr Lars van Vliet
(Universiteit Maastricht), Prof Vincent Sagaert (KU Leuven), Dr Emma Waring (St Johns
College, Cambridge University), Dr Martin Dixon (Queens College, Cambridge University),
Prof Tom Allen (Durham University), Prof Kenneth Reid (Edinburgh University), Prof David
Carey Miller (Aberdeen University), Prof Gregory Alexander (Cornell University Law
School) and Viola Wilke (Universitt Erlangen-Nrnberg). I appreciate your comments,
assistance and advice concerning sources and key aspects of this dissertation. Special thanks
go to Proff van Erp, Allen, Carey Miller and Dr Waring for hosting me at their respective
universities.
Graag spreek ek my dank ook uit teenoor die Harry Crossley-Stigting, die Nasionale
Navorsingstigting en die Departement van Wetenskap en Tegnologie, sonder wie se geldelike
hulp die skryf van hierdie proefskrif nie moontlik sou wees nie.
Dan bedank ek graag my vriende en kollegas by die Suid-Afrikaanse Navorsingsleerstoel in

Sakereg asook die dosente van die Regsfakulteit aan die Universiteit Stellenbosch vir hul
aanmoediging, hulp en ondersteuning die afgelope drie jaar. Verder is ek dank verskuldig aan
mev. Melinda Heese vir hulp rakende die opspoor van bronne in die universiteitsbiblioteek.
Spesiale dank gaan ook aan my ouers en in die besonder aan my Ma vir ondersteuning met
die skryf van die proefskrif en hulp rakende die proeflees van die teks.
Laastens bedank ek my Hemelse Vader vir die deursettingsvermo en krag wat Hy aan my
geskenk het ten einde hierdie proefskrif te kon voltooi.
IV
TABLE OF CONTENTS
DECLARATION .................................................................................................................. I
SUMMARY ........................................................................................................................ II
OPSOMMING .................................................................................................................. III
BEDANKINGS / ACKNOWLEDGMENTS .................................................................... IV
TABLE OF CONTENTS ................................................................................................... V
CHAPTER 1: INTRODUCTION ....................................................................................... 1
1.1 Outline of the research problem and hypothesis ................................................ 1
1.1.1 Outline of the research problem ....................................................................... 1
1.1.2 Hypothesis ....................................................................................................... 5
1.2 Overview of chapters ........................................................................................... 7
1.3 Qualifications ..................................................................................................... 15
CHAPTER 2: ACQUISITIVE PRESCRIPTION: RECEPTION AND
REQUIREMENTS ............................................................................................................ 17
2.1 Introduction ....................................................................................................... 17
2.2 Historical background ....................................................................................... 17
2.2.1 Introduction ................................................................................................... 17
2.2.2 Acquisitive prescription under Roman law ..................................................... 18
2.2.3 Acquisitive prescription under Roman-Dutch law .......................................... 28
2.3 South African prescription law since 1943 ....................................................... 36
2.3.1 Introduction ................................................................................................... 36
2.3.2 The requirements for acquisitive prescription in modern South African law ... 40
2.3.2.1 Possession .............................................................................................. 40
2.3.2.1.1 The animus domini requirement ....................................................... 41
2.3.2.1.2 The corpus requirement .................................................................... 45
2.3.2.2 Nec vi .................................................................................................... 49
2.3.2.3 Nec clam................................................................................................ 51
2.3.2.4 Nec precario, adverse user and as if owner ........................................ 52
2.3.3 Interruption of acquisitive prescription ........................................................... 60
2.3.4 Postponement of acquisitive prescription ....................................................... 62
2.3.5 Rationale for acquisitive prescription ............................................................. 64
2.3.6 Prescription against the state .......................................................................... 64
2.4 Conclusion .......................................................................................................... 64
V
CHAPTER 3: ACQUISITIVE PRESCRIPTION IN FOREIGN JURISDICTIONS .... 66

3.1 Introduction ....................................................................................................... 66
3.2 English law ......................................................................................................... 67
3.2.1 Introduction ................................................................................................... 67
3.2.2 Adverse possession prior to the Land Registration Act 2002 .......................... 70
3.2.2.1 Introduction and relevant statutory provisions ........................................ 70
3.2.2.2 Distinguishing between discontinuance and dispossession ...................... 72
3.2.2.3 Adverse possession ................................................................................. 74
3.2.2.3.1 The meaning of adverse in adverse possession .............................. 75
3.2.2.3.2 Elements of adverse possession: Factual possession and intention
to possess............................................................................................ 77
3.2.2.3.2.1 Introduction ................................................................................... 77
3.2.2.3.2.2 Factual possession (factum possessionis) ....................................... 79
3.2.2.3.2.3 Intention to possess (animus possidendi)........................................ 80
3.2.2.3.3 Postponement (suspension) and interruption of the running of
limitation............................................................................................ 89
3.2.2.3.4 Adverse possession in relation to leasehold land ............................... 92
3.2.2.3.5 Aggregation of periods of adverse possession
(coniunctio temporum) ..................................................................... 93
3.2.3 The Pye case: The three United Kingdom decisions ....................................... 93
3.2.3.1 Introduction ............................................................................................ 93
3.2.3.2 The facts ................................................................................................. 94
3.2.3.3 The three Pye decisions: Different approaches to animus possidendi ...... 96
3.2.3.3.1 JA Pye (Oxford) Ltd and Another v Graham and Another
(High Court decision) ........................................................................ 96
3.2.3.3.2 JA Pye (Oxford) Ltd v Graham (Court of Appeal decision) .......... 101
3.2.3.3.3 JA Pye (Oxford) Ltd v Graham (House of Lords decision) ........... 107
3.2.4 Adverse possession under the Land Registration Act 2002 ........................... 111
3.3 Dutch law ......................................................................................................... 114
3.3.1 Introduction ................................................................................................. 114
3.3.2 Verkrijgende verjaring (acquisitive prescription) ......................................... 115
3.3.2.1 Introduction .......................................................................................... 115
3.3.2.2 Requirements for acquisitive prescription ............................................. 119
3.3.2.2.1 Bezit (possession)............................................................................. 119
VI
3.3.2.2.2 Bona fide (good faith) prescription .................................................. 124

3.3.2.2.3 Mala fide (bad faith) prescription .................................................... 128
3.3.2.2.4 The periods required for prescription .............................................. 129
3.3.2.2.5 Coniunctio temporum (aggregation of prescription periods) ......... 130
3.3.2.3 Interruption (stuiting) and postponement (verlenging) of prescription... 131
3.3.2.3.1 Introduction ..................................................................................... 132
3.3.2.3.2 Interruption (stuiting) of prescription ............................................. 132
3.3.2.3.3 Postponement (verlenging or prolonging) of prescription ............... 134
3.4 French law ........................................................................................................ 135
3.4.1 Introduction ................................................................................................. 135
3.4.2 Prescription acquisitive (acquisitive prescription) and its requirements ........ 136
3.4.2.1 Introduction and the role of possession ................................................. 136
3.4.2.2 Periods required for acquisitive prescription ........................................ 139
3.4.2.3 Aggregation of prescription periods (coniunctio temporum) ................. 140
3.4.2.4 Suspension of the prescription period.................................................... 141
3.5 German law ...................................................................................................... 141
3.6 Conclusion ........................................................................................................ 144
CHAPTER 4: JUSTIFYING ACQUISITIVE PRESCRIPTION RATIONALE AND
JURISPRUDENCE ......................................................................................................... 146
4.1 Introduction ..................................................................................................... 146
4.2 The traditional justifications for acquisitive prescription in Roman-Dutch,
South African, Dutch and French law ............................................................ 147
4.2.1 Introduction ................................................................................................. 147
4.2.2 Roman-Dutch law ........................................................................................ 147
4.2.3 South African law ........................................................................................ 150
4.2.4 Dutch and French law .................................................................................. 157
4.3 The grounds for justifying adverse possession in English law and the
developments that led to the enactment of the Land Registration Act 2002 . 160
4.3.1 Introduction identifying the root of the problem ........................................ 160
4.3.2 Criticism of the traditional justifications for adverse possession ................... 163
4.3.3 Conclusion the death of traditional adverse possession in English law ....... 179
4.4 Three liberal theories for justifying acquisitive prescription ......................... 179
4.4.1 Background.................................................................................................. 179
4.4.2 The labour theory ......................................................................................... 182
VII
4.4.3 The personality theory ................................................................................. 189

4.4.4 Utilitarianism and law and economics theory ............................................... 205
4.5 The anomaly of the bad faith possessor ...................................................... 236
4.6 Conclusion ........................................................................................................ 249
CHAPTER 5: ACQUISITIVE PRESCRIPTION IN VIEW OF THE PROPERTY
CLAUSE .......................................................................................................................... 254
5.1 Introduction ..................................................................................................... 254
5.2 Analysis of the effects of acquisitive prescription ........................................... 256
5.3 Constitutional analysis of the effects of acquisitive prescription in terms
of the FNB methodology .................................................................................. 257
5.3.1 Introduction ................................................................................................. 257
5.3.2 FNB methodology ........................................................................................ 259
5.3.2.1 Introduction .......................................................................................... 259
5.3.2.2 Does that which is taken away amount to property for purpose of
section 25? ............................................................................................ 260
5.3.2.3 Has there been a deprivation of property? ............................................ 261
5.3.2.4 Is the deprivation in line with section 25(1)? ......................................... 265
5.3.2.4.1 The position in South African constitutional law ............................ 265
5.3.2.4.2 The position in foreign constitutional law ....................................... 277
5.3.2.5 Can the deprivation be justified in terms of section 36(1)? .................... 283
5.3.2.6 Has there been an expropriation in terms of section 25(2)?................... 284
5.4 Conclusion ........................................................................................................ 290
CHAPTER 6: CONCLUSION ....................................................................................... 292
6.1 Introduction ..................................................................................................... 292
6.2 Conclusions ...................................................................................................... 297
6.2.1 The law pertaining to acquisitive prescription in South Africa and foreign
jurisdictions ................................................................................................. 297
6.2.2 The justification for acquisitive prescription................................................. 300
6.2.3 Acquisitive prescription in view of the property clause ................................ 312
6.3 The future of acquisitive prescription in South African law .......................... 315
BIBLIOGRAPHY ........................................................................................................... 317
CASES ............................................................................................................................. 326
LEGISLATION............................................................................................................... 330
CONSULTATION PAPERS .......................................................................................... 331
VIII
INTERNATIONAL CONVENTIONS ........................................................................... 331
IX
CHAPTER 1: INTRODUCTION
1.1 Outline of the research problem and hypothesis

1.1.1 Outline of the research problem
Acquisitive prescription (prescription) is an area of South African property law that is
generally regarded as both unproblematic and legally certain. The two prescription acts
regulate this field of law, namely the Prescription Act 18 of 1943 (1943 Act) and the
Prescription Act 68 of 1969 (1969 Act). Although these acts do not codify the law of
prescription,1 they provide that a person acquires ownership in property if such person
possessed it openly, continuously and as if owner for an uninterrupted period of 30 years.2
It follows that prescription is an original method of acquisition of ownership, since the co-
operation of the legal predecessor is not required to acquire ownership in this manner.3 In
other words, a possessor acquires ownership ex lege the moment she satisfies all the
requirements for prescription.
Other jurisdictions, such as Dutch, French and pre-20034 English law, also seem to regard
prescription or adverse possession as an unproblematic area of the law.5 However, the
seemingly uncomplicated nature of this legal institution was recently brought into question
when the constitutionality of adverse possession the common law equivalent of prescription
was challenged before the European Court of Human Rights in Strasbourg. Pye, a company
registered in England, lost title to 25 hectares of land to the Grahams through the effects of
adverse possession. After exhausting its remedies at local level, where the House of Lords
confirmed the loss of title through adverse possession,6 Pye took its case to the European
Court of Human Rights. Pye claimed that adverse possession violated its right to peaceful
enjoyment of possessions guaranteed in Article 1 of Protocol No 1 (Article 1) to the
European Convention on Human Rights and Fundamental Freedoms 1950 (the
Convention). The Fourth Chamber of the European Court of Human Rights upheld Pyes
1
Pienaar v Rabie 1983 (3) SA 126 (A) 135; Bisschop v Stafford 1974 (3) SA 1 (A) 7.
2
Section 1 of the Prescription Act 68 of 1969. These requirements are similar to those set out in section 2(1)-(2)
of the Prescription Act 18 of 1943, as indicated in sections 2.3.1-2.3.2 of chapter two below.
3
I extrapolate this from section 1 of the Prescription Act 68 of 1969 and section 2(1) of the Prescription Act 18
of 1943. See further section 2.3.1 of chapter two below.
4
The Land Registration Act, which fundamentally altered English adverse possession law, came into operation
on 13 October 2003 and is prospective in nature: See Ofulue v Bossert [2009] UKHL 16 and JA Pye (Oxford)
Ltd v Graham [2003] 1 AC 419.
5
See generally sections 3.2, 3.3 and 3.4 for English, Dutch and French law respectively in chapter three below.
6
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419.
1
claim and found that adverse possession constituted an uncompensated deprivation or

expropriation in the South African context of property, which upset the fair balance
required by the Convention.7 This decision led to an outcry from property law scholars in
member states of the European Union, since they feared that this decision also invalidated
their rules pertaining to prescription.8 The United Kingdom government, unsatisfied with the
judgment of the Fourth Chamber, appealed to the Grand Chamber of the European Court of
Human Rights.9 The Grand Chamber reversed the decision of the Fourth Chamber and
decided that adverse possession amounts to a regulation of property, as opposed to
expropriation. This finding led the Grand Chamber to conclude that sufficient reasons do
exist for having a mechanism such as adverse possession in a modern legal system and,
consequently, it held that adverse possession strikes a fair balance between the interests of
the individual and the public interest. Accordingly, the Grand Chamber found that adverse
possession is in line with Article 1 of the First Protocol to the Convention.
In light of these decisions by the European Court of Human Rights, especially the judgment
of the Fourth Chamber, it is clear that the constitutionality of prescription may also be
challenged in the constitutional setting of South Africa. In this regard the Constitutional
Court will have to determine whether prescription is in line with section 25, the property
clause of the Constitution of the Republic of South Africa 1996 (the Constitution). The
possibility that prescription could be in conflict with section 25 is likely to have serious
repercussions for the rules of property law pertaining to original acquisition of ownership.
Therefore, it is necessary to investigate two questions in this dissertation, namely (i) whether
sufficient justification exists for prescription today and (ii) whether this legal institution
complies with the property clause.
To answer these questions, it is essential to firstly investigate the history of prescription

and its requirements in modern South African law. Chapter two addresses this issue, since it
focuses on the reception and requirements of prescription in South African law. This chapter
7
JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV).
8
See, for instance, Caterina R Some Comparative Remarks on JA Pye (Oxford) v. The United Kingdom
(2007) 15 European Review of Private Law 273-279; Sagaert V Prescription in French and Belgian Property
Law after the Pye Judgment (2007) 15 European Review of Private Law 265-272; Radley-Gardner O Pye
(Oxford) Ltd v. United Kingdom: The View from England (2007) 15 European Review of Private Law 289-308;
Milo JM On the Constitutional Proportionality of Property Law in the Netherlands (2007) 15 European
Review of Private Law 255- 263.
9
JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC).
2
considers the requirements of the forerunners of prescription in Roman and Roman-Dutch

law, together with how the prescription acts and case law regulate prescription in South
Africa today.
The emphasis of chapter three falls on foreign law in order to ascertain how prescription or
adverse possession operates in other jurisdictions. For this purpose Dutch, French, German
and especially English law are investigated. This chapter specifically examines the
requirements for prescription in French and German law, since these two jurisdictions
represent the two main civil law traditions in Europe. Although South Africa has a mixed
legal system, South African property law which includes prescription law is much closer
to the civil law tradition than to the English common law tradition. Furthermore, Germany
(like South Africa) is a jurisdiction with a supreme constitution that also contains a justiciable
property clause. For this reason German law is ideal for comparative purposes.
Dutch law also forms part of the civil law tradition and has a mixed civil law system, since it
contains elements of both the French and German legal traditions. Dutch law also shares the
Roman-Dutch legal heritage with South Africa, which makes a comparative analysis useful in
this context. A further reason for studying these civil law jurisdictions is because they,
contrary to South African law, distinguish between bona and mala fide possessors for
purposes of prescription. This is interesting, since South African prescription law attaches no
significance to this distinction and simply requires both good and bad faith possessors to
possess property for 30 years before such possessor can acquire ownership.
Chapter three pays special attention to the English law of adverse possession because the Pye
case concerned the constitutionality of adverse possession in light of Article 1. It is necessary
to scrutinise this legal institution both before and after the enactment of the Land Registration
Act 2002 (LRA or 2002 Act), since the LRA amended the rules pertaining to adverse
possession by making it more difficult for title holders (or owners) of registered land to lose
title through adverse possession.10 Nonetheless, the Pye case was lodged before this Act came
into operation, which also necessitates an inquiry as to how adverse possession operated
before the 2002 Act came into effect. Furthermore, even though English law does not have a
written constitution, the Human Rights Act 1998 has the effect that the Convention now
10
See section 3.2.4 of chapter three below.
3
applies to English law. Accordingly, English land law must be in line with Article 1 of the
First Protocol to the Convention, which is a position similar to South African law where all
law must comply with the Constitution. Finally, the requirements of adverse possession also
influenced the requirements for prescription in South African law to a certain extent, which
further justifies a comparative analysis in this regard.
This dissertation does not investigate the requirements for adverse possession or prescription
in United States (US), Australian or Irish law. It does not examine how prescription
operates in other African countries either. This is because US and Australian law both belong
to the common law tradition, which makes a discussion in this context unnecessary in light of
chapter threes discussion of English adverse possession law. Irish law is not scrutinised
because it contains elements of feudal law and has a unique property clause, which would
complicate a comparative analysis. The reason for not considering other African countries is
because these systems are mostly either common-law based or founded on French civil law
principles. Since chapter three covers both, it is unnecessary to examine how prescription
functions in other African countries.
The justifications for prescription are set out in chapter four. This chapter investigates the
rationale for prescription in Roman-Dutch, South African, Dutch and French law. Attention is
then directed at English law for two reasons. Firstly, the fact that the Pye case originated in
England makes it imperative to focus on the grounds advanced in favour of adverse
possession. Secondly, the English Law Commission recently concluded that adverse
possession of registered land is no longer justified if the register provides conclusive proof of
ownership. This led to the enactment of the LRA, which now prevents loss of title of
registered land through the mere passage of time. The analysis of the justifications for
adverse possession in English law is followed by a discussion of three liberal property
theories to determine whether the abolishment of traditional adverse possession by the Law
Commission was justified and whether prescription still fulfils a useful purpose in other legal
systems today. These theories are the Lockean labour theory, the personality theory as
developed by Radin and utilitarianism and law and economics theory. I specifically
consider these three theories because they are analogous to the traditional justifications
provided for prescription or adverse possession. Taken together, they predict that prescription
plays an important role in negative registration systems by clearing titles and promoting legal
certainty, although certain economic and moral factors may even justify maintaining
4
prescription in a positive registration system. Finally, this chapter considers whether the
distinction between bona and mala fide possessors for purposes of prescription performs any
useful role and whether this differentiation is truly necessary.
Chapter five focuses on the constitutionality of prescription. For this purpose, the chapter
employs the methodology set out by Ackermann J in First National Bank of SA Ltd t/a
Wesbank v Commissioner, South African Revenue Service and Another; First National Bank
of SA Ltd t/a Wesbank v Minister of Finance (FNB)11 to conduct the section 25 analysis of
prescription. Firstly, this chapter investigates whether prescription amounts to arbitrary
deprivation of property in terms of section 25(1). I predict that prescription amounts to a non-
arbitrary deprivation of property, which is in line with section 25(1). For purposes of this
argument, chapter five considers the moral and economic justifications in favour of
prescription discussed in chapter four, together with the judgment of the Grand Chamber of
the European Court of Human Rights in Pye. The question of whether prescription constitutes
expropriation in terms of section 25(2) (or even constructive expropriation) is also examined.
The possibility that prescription amounts to either expropriation or constructive expropriation
is ruled out through an analysis of expropriation law in terms of the FNB methodology.
Accordingly, this chapter concludes that the law of prescription is constitutionally compliant.
1.1.2 Hypothesis
My hypothesis is that prescription, which affects the loss of ownership on the side of an
owner, could amount to an arbitrary deprivation under section 25(1) of the Constitution if
there is insufficient reason for it. It may perhaps even constitute an uncompensated
expropriation in terms of section 25(2), a possibility that is similar to the finding of the
Fourth Chamber of the European Court of Human Rights in the Pye case. Should prescription
be in conflict with the property clause, it will entail major repercussions for prescription as
well as the rules of property law pertaining to original acquisition of ownership, such as
specificatio, accessio and commixtio et confusio. Accordingly, it is imperative to investigate
how this legal institution operates in both South African law and other jurisdictions, as well
as the reasons for having such a rule in a modern legal system.
11
2002 (4) SA 768 (CC).
5
Chapter two indicates that the requirements for prescription in South African law are difficult
to satisfy, since a possessor must possess the property of another continuously with the
animus domini12 for an uninterrupted period of 30 years.13 Chapter three illustrates that the
requirements for prescription in Dutch and French law are similar to those in South African
law, since both these civil law systems also require a possessor to possess property animo
domini for a certain period of time.14 German law also requires a possessor to possess
property with the intention of an owner before she can acquire it through Ersitzung,15
although it has more strenuous requirements due to the positive nature of the German
registration system. To the contrary, English law merely requires possessors to possess land
animo possidendi16 for purposes of acquiring it through adverse possession, a requirement
that is more easily satisfied than possession animo domini.17 This is an interesting difference
between prescription and adverse possession, especially if one considers the fact that the
Grand Chamber of the European Court of Human Rights found the less strenuous adverse
possession to be in line with Article 1 of the First Protocol. Nevertheless, the enactment of
the LRA makes it much harder to acquire title to registered land, since English law like
German law now also employs a positive registration system.
The English Law Commission reasoned that the traditional justifications for adverse
possession do not hold water when a register provides conclusive proof of ownership, since
registration and no longer possession is then indicative of ownership. These developments
may seem to hinder prescription from surviving a constitutional challenge under section 25 of
the Constitution. However, chapter four argues that the Law Commission failed to take
certain moral and economic factors into account when it decided to amend adverse
possession law pertaining to registered land. For this purpose the chapter considers the
traditional justifications that Roman-Dutch, South African, Dutch and French law provide for
prescription. The justifications for adverse possession in English law and the objections
raised against them by the Law Commission are also investigated. Against this background,
the chapter establishes that the Lockean labour theory, Radins personality theory, and
utilitarianism and law and economics theory provide powerful justifications for the existence
of prescription in a legal system. This is due to the fact that prescription fulfils an important
12
The intention of an owner: See section 2.3.2.1.1 of chapter two below.
13
See generally section 2.3 of chapter two below for a more detailed discussion in this regard.
14
See section 3.3.2 for Dutch law and section 3.4.2 for French law in chapter three below.
15
Ersitzung is the equivalent of acquisitive prescription in South African law.
16
The intention to possess.
17
See section 3.2.2.3.2.3 of chapter three below.
6
corrective function and helps to reallocate resources to higher-valuing possessors in countries

with a negative registration system, although certain moral justifications for this legal
institution can possibly even justify its presence in jurisdictions with a positive registration
system. Nonetheless, this chapter only attempts to justify prescription in the context of a
negative registration system.
These moral and economic arguments in favour of prescription are then used in chapter five,
which focuses on the constitutionality of prescription. The main question in this chapter is
whether prescription constitutes non-arbitrary deprivation of property, as required by section
25(1). For this purpose, I employ Ackermanns J methodology for adjudicating section 25
disputes, as laid down in FNB. In this sense, sufficient reasons must exist for the deprivation
in question brought about by prescription to be in line with section 25(1).18 In other words,
there must be a sufficient nexus between prescription and the fact that it results in the loss of
ownership on the side of an owner in order for the deprivation to be non-arbitrary. Chapter
five predicts that such a nexus indeed exists between the effects of prescription (loss of
ownership) and the reasons for such deprivation, namely the moral and economic
considerations identified in chapter four. It follows that prescription amounts to non-arbitrary
deprivation, which is in line with the property clause. Finally, I conclude that prescription
cannot constitute expropriation or even constructive expropriation if one strictly adheres to
the FNB methodology. Consequently, this dissertation establishes that prescription complies
with section 25 of the Constitution.
1.2 Overview of chapters

There are four substantive chapters in this dissertation, while the current one forms the
introduction and chapter six the conclusion. Chapter two discusses how South African law
received prescription as well as the requirements of this legal institution today. It provides a
brief historical overview of the Roman and Roman-Dutch roots of prescription, together with
how prescription operated in these two systems. Following this brief historical perspective,
the chapter analyses the requirements for prescription in South African law. For this purpose,
the requirements for prescription according to the 1943 and 1969 acts are scrutinised, since it
is possible to encounter cases involving long periods of suspension where a possessor may
18
First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and Another;
First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 100.
7
still have to satisfy the requirements under the 1943 Act.19 Chapter two relies on case law and
the academic work of property scholars to examine the requirements for prescription. This
chapter shows that the requirements under the two prescription acts are remarkably similar,
since both acts require a person to possess property openly, continuously and as if owner
(animo domini) for an uninterrupted period of 30 years in order to acquire ownership.20
Chapter three considers prescription or adverse possession in English, Dutch, French and
German law. This chapter initially investigates English law and scrutinises the requirements
for adverse possession both before and after the enactment of the LRA for two reasons.
Firstly, this Act prevents the extinguishment of title through mere adverse possession.
Secondly, the Fourth and Grand Chambers of the European Court of Human Rights decided
the Pye case under the old rules of adverse possession, which makes it important to
ascertain how adverse possession worked at this time for purposes of a comparative and
constitutional analysis. Special attention is paid to the intention a person must have to possess
land for purposes of adverse possession. Adverse possession law merely requires a person to
possess property with the animus possidendi (intention to possess), which makes it easier to
succeed with an adverse possession claim when compared to prescription under the civil law
systems, which requires the intention of an owner (animus domini).21 The requisite intention
in adverse possession law is the same both before and after the LRA came into effect, since
this Act merely puts protective mechanisms in place for owners of registered title.
Accordingly, this Act does not affect the substantive requirements for adverse possession in
English law.
Chapter three also examines the facts of the Pye case as well as the reasoning of each of the
three local courts to provide a background for the discussion of the decisions by the Fourth
and Grand Chambers of the European Court of Human Rights in chapter five. As mentioned
before, the 2002 Act prevents owners of registered land from losing ownership through the
effects of adverse possession.22 This makes it much harder to acquire title in registered land
19
Although the Prescription Act 68 of 1969 came into operation on 1 December 1970, it is not retrospective in
nature. This means that prescription periods running up until 30 November 1970 still have to comply with the
requirements as set out by the Prescription Act 18 of 1943. It follows that the remainder of the prescription
period after 30 November 1970 then only has to comply with the requirements of the Prescription Act 68 of
1969. See further the discussion in section 2.3.1 of chapter two below.
20
See sections 2.3.1-2.3.2 of chapter two below.
21
See the discussion in section 3.2.2.3.2.3 of chapter three below.
22
See section 96(1) of the Land Registration Act 2002, which disapplies section 15 of the Limitation Act 1980.
See also Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.21.
8
through adverse possession today. The reasons for this alteration by the English Law
Commission are discussed in chapter four.
The requirements for prescription in Dutch and French law demonstrate remarkable
similarities to those in South African law. The main difference lies in the fact that these two
Western European systems differentiate between good and bad faith possessors, since these
jurisdictions require mala fide possessors to possess property for longer periods than their
bona fide counterparts before they can acquire ownership.23 Both these systems also require a
possessor to possess property with the animus domini to acquire ownership through
prescription, just as in South African law.24
German law has a strict prescription regime, since a person can only acquire ownership in
land through Ersitzung if she possessed the property continuously for 30 years while also
(erroneously) being registered as the owner in the Grundbuch (register).25 This indeed
narrows down the possibility to acquire ownership in land through prescription, since it is
highly unlikely that a person would be wrongly registered as owner in the Grundbuch for a
period of 30 years. The reason for this strict approach is because the German Civil Code
(Brgerliches Gesetzbuch) guarantees the correctness of the Grundbuch, which causes
German law to have a positive registration system.26 In this sense English law is now similar
to German law, since the LRA also deems the English register to provide conclusive proof of
ownership.27 This illustrates why the requirements for prescription or adverse possession are
stricter in jurisdictions with a positive registration system than those with a negative
registration system. Chapter four focuses on the significance of this phenomenon, together
with the question whether there is merit in distinguishing between good and bad faith
possessors for purposes of prescription.
Chapter four examines the justifications behind prescription. In this context the point of
departure is the justifications Roman-Dutch, South African, Dutch and French law provide
23
For Dutch law, see sections 3.3.2.2.2-3.3.2.2.3 of chapter three below. For the position of French prescription
law, see section 3.4.2.2 of chapter three below.
24
For Dutch law, see section 3.3.2.2.1 of chapter three below. For the position of French prescription law, see
section 3.4.2.1 of chapter three below.
25
See section 3.5 of chapter three below.
26
BGB 891 I. See also Palandt O Brgerliches Gesetzbuch vol 7 (63rd ed by Bassenge P et al 2004) 891
RdNr 2, 5.
27
Section 58(1) of the Land Registration Act 2002.
9
for this legal institution. This chapter omits German law, since it is clear from chapter three
that prescription no longer fulfils a meaningful purpose in this jurisdiction. From the
discussion of the four systems mentioned earlier, it becomes clear that they regard
prescription as a mechanism that affords de iure status to long-existing de facto situations,
especially in the context of a negative registration system. Another justification advanced in
favour of prescription is that it encourages owners to use their property or, stated negatively,
punishes owners for not looking after their property. This justification carries more weight in
Roman-Dutch and South African law than in Dutch and French law, where it is regarded as
merely ancillary to the promotion of legal certainty argument.28
Following the discussion of the justifications for prescription in these four systems, the
chapter shifts its focus to the reasons why the English Law Commission decided to limit the
effects of adverse possession in relation to registered land. The Commission relied on an
article by Dockray,29 who criticises the traditional justifications as observed in the four legal
systems mentioned in the previous paragraph. The Commission accepted the objections of
Dockray and concluded that it is no longer justified to allow adverse possession in respect of
registered land when the register provides conclusive proof of title. Nonetheless, this chapter
argues that the Commission failed to make an informed decision, as it did not take into
account certain key moral and economic considerations. To fill this gap, chapter four
considers three liberal property theories, namely the Lockean labour theory, Radins
personality theory, and utilitarianism and law and economics theory. One of the reasons I
concentrate on these three theories specifically is because they overlap with the traditional
justifications that South African law provides for prescription. In terms of the labour theory,
the chapter argues that persons who actively use and invest labour into the neglected property
of others obtain a labour theory claim to such property if one regards the owners neglect of
such property as constituting quasi-abandonment.30 Furthermore, the labour theory is subject
to certain internal qualifications that justify granting ownership to a possessor through
prescription under specific circumstances.31
28
See the discussion in section 4.2 of chapter four below.
29
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284.
30
I rely on Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after the Land
Registration Act 2002 (2007) 27 Legal Studies 236-260 in this regard. See further the discussion in section
4.4.2 of chapter four below.
31
See section 4.4.2 of chapter four below.
10
According to the personality theory, Radin regards some forms of property which she
classifies as personal property as being constitutive to ones personhood. In this context, a
person who possesses an owners (neglected) property will be entitled to stronger protection
concerning possession of the property if it is closely related to the personhood of the
possessor.32 This position is analogous to German constitutional law, where it is more
difficult for the state to regulate the limits of property rights located closer to a persons
autonomy such as a home than those that are not so related, such as commercial property.
Furthermore, Radins theory is similar to what Singer refers to as the reliance interest of
parties.33 According to this theory, possessors and third parties begin to rely on factual
situations that owners allow to persist for long periods of time. In this sense the absence of
the owner allows the possessor to become attached to the property, which induces third
parties (and possessors) to believe that the possessor is the true owner of the property and not
the owner. Another moral theory that is analogous to Radins personality theory, and that
provides a powerful justification for prescription, is Alexanders social-obligation norm.34
This theory entails that owners have an inherent obligation to help others in the community to
foster their capabilities to attain human flourishing. Consequently, an owner that neglects her
land through allowing a possessor to stay on it for a long time will be obliged to give that
land to the squatter if it became essential for such squatter to lead a well-lived life. Since
prescription involves the acquisition of ownership in land by possessors, chapter four argues
that the social-obligation norm underlies this legal institution.
The third theory used to justify prescription is utilitarianism and law and economics theory.
Chapter four discusses these trends together, as both of them aim to maximise the general
welfare or utility, albeit in different contexts. Utilitarianism attempts to maximise overall
happiness while law and economics theory aims to structure the law in such a way as to
optimise economic efficiency. I argue that prescription is justified from a utilitarian
perspective, since it maximises happiness if prescription awards ownership to a person who
actively uses property for a sufficient length of time in the absence of a neglecting owner. In
this context utility is increased by having a legal rule (prescription), in terms of rule-
32
33
Singer JW The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751. See further the
discussion in section 4.4.3 of chapter four below.
34
Developed by Alexander GS The Social-Obligation Norm in American Property Law (2009) 94 Cornell
Law Review 745-820. This theory is addressed in section 4.4.3 of chapter four below.
11
utilitarianism, which awards ownership to the hardworking labourer instead of the neglectful
owner after a certain period of time.
Since law and economics theory aims to maximise economic efficiency, it attempts to lower
transactions costs in circumstances where high transaction costs prevent voluntary exchange
between parties. Consequently, one can justify prescription if it can be shown that this legal
institution helps to shift resources to higher-valuing users or possessors in situations where
the market cannot realise this function due to high transaction costs. The costs in relation to
four categories are taken into account for purposes of law and economics theory, namely (i)
owners, (ii) possessors, (iii) third parties and (iv) litigation. With regard to owners, the
economic analysis of prescription demonstrates that the pain in the form of
demoralization costs35 an owner suffers when ownership is lost to a possessor through
prescription is less in a regime with a longer prescription period. This is because owners
become detached from property the longer they are out of possession, a position that is
analogous to Radins personality theory. It follows that the shorter the period, the higher the
demoralisation costs, since an owner is then likely to still regard the land as personal
property. Monitoring costs are also reduced by lengthening the prescription period, since the
owner wont have to incur costs to locate possessors who are not readily detectable. The
decrease in monitoring costs also lowers uncertainty costs, since ownership is more secure if
the law requires a possessor to remain in possession for a longer time before she can acquire
ownership through prescription.
As to the possessor, the potential demoralisation costs she suffers increase with the length of
the prescription period, since the possessor will come to rely through her reliance interest
on the fact that the owner allowed such possessor to remain on the property. This position
is again similar to Radins predictions under the personality theory. In this context
prescription maximises economic efficiency through awarding ownership to the possessor
and taking it away from the owner, who in any event makes no economic use thereof.
Furthermore, prescription in a negative registration system also lowers costs pertaining to the
ascertainment of ownership, since third parties can disregard possible errors in the register
35
This concept was developed by Michelman FI Property, Utility, and Fairness: Comments on the Ethical
Foundations of Just Compensation Law (1967) 80 Harvard Law Review 1165-1258 1214. The connection of
using demoralisation costs in the context of prescription was made by Ellickson RC Adverse Possession and
Perpetuities Law: Two Dents in the Libertarian Model of Property Rights (1986) 64 Washington University
Law Quarterly 723-737 727-728. See further the discussion in section 4.4.4 of chapter four below.
12
that predate the prescription period, which also reduces search costs. In addition, it will be
safer to merely inspect the property to see who possesses it (thereby incurring inspection
costs) than to rely on (faulty) information of the register in a negative registration system.
Another economic justification includes the fact that prescription reduces litigation costs,
since it avoids protracted litigation concerning ownership.
Finally, chapter four analyses the distinction between bona and mala fide prescription. The
chapter especially relies on Fennell36 to illustrate that it serves no useful purpose to
distinguish between these types of possessors, since the so-called distinction is flawed
because of fallacious moral reasoning. These judgments include the presumption that bad
faith possessors who possess property knowing that they do not own it are morally
reprehensible and that the law should therefore make it more difficult for them to acquire
ownership through prescription. Fennell indicates that the apparently simple distinction
between good and bad faith is not as clear-cut as it prima facie seems and emphasises that
persons are able to choose how to inform themselves of a particular situation. This fact,
according to Fennell, makes knowledge an unstable criterion to determine whether good faith
or bad faith is present.37 Fennell further argues that by disentangling the way law and
morality is conflated in the word thief, we are able to discover why bad faith should
actually be a requirement for acquiring land through prescription.
Pealver and Katyal38 agree with Fennell that this distinction is based on erroneous moral
judgments. They emphasise the role these acquisitive [property] outlaws play in developing
property law. In this sense the authors agree with Radin that property is important to persons
to help gain individual identity, which justifies the acquisition of ownership through bad faith
prescription if the possessor had real need of the property. Another reason for allowing bad
faith prescription is because it generates information as to the inefficient distribution of
property rights in society. In this sense these authors (Fennell, Pealver and Katyal) agree
with the economic arguments that prescription should be allowed if it helps to relocate
resources to higher-valuing users.
36
Fennell LA Efficient Trespass: The Case for Bad Faith Adverse Possession (2006) 100 Northwestern
University Law Review 1037-1096.
37
University Law Review 1037-1096 1050.
38
Pealver EM & Katyal SK Property Outlaws (2007) 155 University of Pennsylvania Law Review 1095-
1186.
13
Chapter five focuses on the constitutionality of prescription in terms of section 25 of the

South African Constitution. For purposes of the section 25 analysis, this chapter relies on the
methodology set out by Ackermann J in FNB when dealing with the interpretation and
application of section 25 disputes. The first substantive question in this context is whether
prescription complies with section 25(1), which allows for deprivation of property. I establish
that the two South African prescription acts constitute law of general application, which is the
first requirement of section 25(1). As to the question of arbitrariness, the chapter argues that
prescription amounts to non-arbitrary deprivation of property, since it satisfies both the
procedural and substantive non-arbitrariness legs of the arbitrariness test. The moral and
economic justifications identified in chapter four are central to this conclusion, especially the
fact that prescription fulfils a corrective function and lowers transaction costs in jurisdictions
with a negative registration system. This result finds further support in the judgment of the
Grand Chamber in the Pye case, where it was found that adverse possession in English law
constitutes a regulation or deprivation in South African law of property, which is in line
with the third rule of Article 1. The fact that the Grand Chamber found adverse possession
with its easy animus possidendi requirement to comply with Article 1 provides further
support for the constitutionality of prescription, since it has the more strenuous animus
domini element.
In the wake of the arguments pertaining to section 25(1), the next question is whether
prescription amounts to uncompensated expropriation in terms of section 25(2), along with
whether it constitutes constructive expropriation. The fact that prescription could amount to
uncompensated expropriation is a real possibility, which is analogous to the judgment of the
Fourth Chamber in Pye. Nonetheless, I argue that prescription cannot amount to
expropriation, since the two prescription acts do not empower the state to expropriate
property rights.39 Furthermore, these acts also do not provide for the payment of
compensation, which further indicates that prescription does not amount to expropriation. In
addition, the courts in South African law have no common law authority to order
expropriation, since this power must be expressly or tacitly granted in empowering
legislation. The fact that the prescription acts in no way empower a court to order
expropriation is another indication that it cannot amount to expropriation.
39
The question of whether prescription amounts to expropriation is addressed in section 5.3.2.6 of chapter five
below.
14
Finally, chapter five argues that prescription does not amount to constructive expropriation
either.40 This reasoning is based on the argument that the doctrine of constructive
expropriation, which treats excessive deprivation as de facto expropriation that requires
compensation, does not form part of South African law.41 This doctrine is recognised in
Swiss law, where the constitution provides for this form of expropriation. It is also applied in
US law (where it is known as regulatory takings), although its application in that context is
not free from difficulty. German law does not recognise this doctrine and this is likely to be
the position in South African law as well. According to German constitutional law, an
excessive deprivation will be unconstitutional for being in conflict with the Basic Law. In this
context an unconstitutional deprivation cannot be saved by treating it as constructive
expropriation. Furthermore, if one strictly adheres to the methodology set out in FNB, it is
clear that unconstitutional deprivations will be struck down as arbitrary deprivation under
section 25(1) before one can reach the question as to whether it constitutes constructive
expropriation under section 25(2). Accordingly, I conclude that prescription does not amount
to constructive expropriation. Therefore, this chapter concludes that prescription is in line
with section 25 of the Constitution.
In the final chapter, I conclude that prescription is in line with the property clause, since it
fulfils an important corrective function in jurisdictions with a negative registration system.
Chapter six reaches this conclusion by using the arguments made in chapter three (the
comparative law chapter) concerning prescription in other jurisdictions, together with
assessing the justifications provided by the three liberal property theories investigated in
chapter four. This chapter incorporates the conclusions drawn from chapters three and four in
the FNB methodology to ascertain whether prescription amounts to a non-arbitrary
deprivation, which constitutional analysis confirms that prescription is in line with section 25.
1.3 Qualifications
This dissertation only focuses on prescription in the context of ownership of land and does
not investigate the role of prescription pertaining to either movables or servitudes, since the
justifications and to a lesser degree also the requirements differ from those concerning
ownership of immovable property. For these reasons I do not specifically investigate
40
This question is addressed in section 5.3.2.6 of chapter five below.
41
Van der Walt AJ Constitutional Property Law (2009) 3 Jutas Quarterly Review para 2.2.
15
prescription in the context of boundary disputes either. Accordingly, prescription in these

situations falls outside the scope of this dissertation. In this regard I take cognisance of the
fact that the Draft Common Frame of Reference (DCFR) contains a chapter pertaining to
the prescription of movables, even though it does not allow for the acquisition of land
through prescription.42 It is worth emphasising that the requirements for acquiring movables
through prescription under the DCFR are remarkably similar to those in the German law of
Ersitzung.
Even though chapter two includes and discusses South African cases pertaining to the
acquisition or loss of servitudes through prescription, this is only done for purposes of
clarifying the requirements for prescription under the two prescription acts in relation to land.
This approach is in no way intended to facilitate a discussion as to the acquisition of
servitudes through prescription in South African law.
It is not my intention to analyse the extinction of debts or obligations through extinctive

prescription, since the focus of this dissertation only falls on the acquisition of immovables
through acquisitive prescription. This is because both the requirements and the effects of
extinctive prescription differ from those of acquisitive prescription, since extinctive
prescription fulfils a more important role in the context of the law of obligations than in
property law. Accordingly, since the justifications for extinctive prescription also differ from
those of acquisitive prescription, they fall outside the scope of my dissertation.
Finally, I do not provide an in-depth historical discussion of prescription in the second

chapter. The purpose of the historical analysis is merely to illustrate that prescription has its
roots in Roman and Roman-Dutch law and not to provide a detailed account of the
requirements of prescription during these two eras. An in-depth study to this effect falls
outside the scope of this dissertation.
42
Von Bar C et al (eds) Principles, Definitions and Model Rules of European Private Law Draft Common
Frame of Reference (2009) Chapter 8.
16
CHAPTER 2: ACQUISITIVE PRESCRIPTION: RECEPTION AND

REQUIREMENTS
2.1 Introduction
Acquisitive prescription (prescription) is one of the oldest existing legal institutions,
already recognised by the earliest legal code adopted by the Romans.1 This chapter shows
how prescription developed throughout the Roman law period, as well as how it changed
under the rule of the emperor Justinian. Following this analysis of the ancient sources, the
chapter investigates the position of prescription under Roman-Dutch law. Against this
historical background the focus then shifts to modern South African prescription law.
Specific emphasis is placed on the content of the requirements set out by the two prescription
acts,2 with special consideration for the requirements of possessio civilis, adverse user and
as if owner. Regard is also had to the similarities between these two acts.
2.2 Historical background

2.2.1 Introduction
South African private law, which was greatly influenced by Roman-Dutch law, has its roots
in Roman law. Accordingly, a brief overview is presented of the origins of prescription, as
well as how it developed until the time Roman-Dutch law emerged in the provinces of
Holland. This helps to contextualise the discussion of the modern South African law of
prescription. This section starts by focusing on the position under the old Roman law,3
followed by the late republican and classical periods of law,4 the post-classical period5 and
then the period during the rule of Justinian.6 Afterwards, the acquisition of servitudes through
prescription in Roman law is briefly investigated, ending off with how prescription developed
under Roman-Dutch law.
1
The Twelve Tables.
2
Prescription Act 18 of 1943 and Prescription Act 68 of 1969.
3
This is the period between the adoption of the Twelve Tables (around 450 BC) until the pre-classical period
(around 250 BC).
4
From 250 BC until the classical period, between 27 BC and 250 AD.
5
From 250 AD until around 500 AD.
6
From around 520 AD until 540 AD: See Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994)
10 for this division.
17
2.2.2 Acquisitive prescription under Roman law

The earliest known form of prescription is found in the Twelve Tables,7 which most scholars
agree was adopted by the Romans around 450 BC.8 This legal rule later became known as
usucapio.9 During this early stage, the Romans did not distinguish between acquisitive and
extinctive prescription, hence the unqualified use of the term prescription in the first
sentence of this paragraph.10 According to Tabula 6.3, it was possible to acquire both
movable and immovable objects through prescription.11 The requirements for prescription
(and later usucapio) were numerous and complicated, but for the purposes of this discussion
they may be summarised as follows, according to Tabula 6.3:
i) continuous possession or use of anothers property;

ii) for a certain period of time (two years for immovables and one year for movables).12
These periods applied throughout the republican and classical periods and, regarding
movables, even up until the time of Justinian.13 If a person satisfied these requirements, he
became the owner of the property.14 In other words, he acquired dominium or ownership.
However, this method of acquiring dominium was qualified.15 According to Tabula 3.7,16
prescription could not run in the favour of peregrini (or foreigners). Stolen things (rei
7
Leges Duodecim Tabularum.
8
According to Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 82, Tabula 6.3 states: Usus
auctoritas fundi biennium esto, ceterarum rerum omnium annuus est usus. There is a debate over the exact
meaning of this stipulation, but that is not discussed here. According to Van Oven JC Leerboek van Romeinsch
Privaatrecht (3rd ed 1948) 81, (acquisitive) prescription probably existed even before the adoption of the Twelve
Tables.
9
The word usucapio is of such ancient heritage that no one is certain since when it has been used to refer to
prescription: See Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 81.
10
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 13.
11
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 14; Kaser M Roman Private Law (trans
by Dannenbring R, 3rd ed 1980) 130; Krause LE The History and Nature of Acquisitive Prescription and of
Limitation of Actions in Roman-Dutch Law (1923) 40 South African Law Journal 26-41 30.
12
Gai Inst 2.42; Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 200; Johnston D Roman
Law in Context (1999) 57; Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 14; Kaser M
Roman Private Law (trans by Dannenbring R, 3rd ed 1980) 130 132; De Wet JC Opuscula Miscellanea (1979)
80; Buckland WW A Text-Book of Roman Law from Augustus to Justinian (3rd rev ed Stein P, 1963) 242; Van
Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 82; Krause LE The History and Nature of
Acquisitive Prescription and of Limitation of Actions in Roman-Dutch Law (1923) 40 South African Law
Journal 26-41 30; Wessels JW History of the Roman-Dutch Law (1908) 635.
13
Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 82.
14
Gai Inst 2.41.
15
The qualifications are found in Tabulae 3.7 and 8.17.
16
Adversus hostem aeterna auctoritas (esto). Kaser M Roman Private Law (trans by Dannenbring R, 3rd ed
1980) 130 translates this provision as follows: As against an alien the warranty shall last eternally. See also
Buckland WW A Text-Book of Roman Law from Augustus to Justinian (3rd rev ed Stein P, 1963) 248; Van Oven
JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 83; Krause LE The History and Nature of Acquisitive
Prescription and of Limitation of Actions in Roman-Dutch Law (1923) 40 South African Law Journal 26-41
30-31; Wessels JW History of the Roman-Dutch Law (1908) 635.
18
furtivae) were also excluded from the effects of prescription, which was enhanced by the lex
Atinia (enacted around the beginning of 200 BC).17 This was the case even if a bona fide18
third party obtained possession of stolen property.19 Not until the stolen object was returned
to the hands of the owner did it once more become susceptible to prescription.20 It was not
necessary that the owner be physically reunited with the stolen thing; all that was required
was that the owner needed to know the whereabouts of the property, and thus be able to
reclaim it with his rei vindicatio.21 If these requirements were satisfied, it once more became
possible to acquire the property through usucapio. 22 This exception only applied to movables,
as it is impossible to steal immovable property.23
The justifications for usucapio during this time were much the same as the traditional ones
advanced in favour of prescription in most modern-day jurisdictions, namely
i) to legalise the position of a possessor who may not have complied with the formal
requirements for transfer of dominium (ie transfer by way of traditio of a res
mancipi instead of through mancipatio); and
ii) to afford de iure status to a de facto situation.24
During the late republican and classical law periods,25 prescription finally became known as
usucapio.26 It was important that the possessor exercised legal possession (possessio civilis)
over the property, as opposed to mere custody (detentio), which was not sufficient for
17
This is found in Tabula 8.17, which was extended by the lex Atinia: Quod subruptum erit, eius rei aeterna
auctoritas esto. Kaser M Roman Private Law (trans by Dannenbring R, 3rd ed 1980) 131 translates this
provision as follows: With regard to that which has been obtained from another (by stealth), the warranty shall
last eternally. See also Gai Inst 2.45; Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 203;
Johnston D Roman Law in Context (1999) 57; Buckland WW A Text-Book of Roman Law from Augustus to
Justinian (3rd rev ed Stein P, 1963) 248; Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 82;
Krause LE The History and Nature of Acquisitive Prescription and of Limitation of Actions in Roman-Dutch
Law (1923) 40 South African Law Journal 26-41 30.
18
Good faith.
19
Gai Inst 2.49; Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 203; Marx FE
Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 15.
20
Kaser M Roman Private Law (trans by Dannenbring R, 3rd ed 1980) 131; Van Oven JC Leerboek van
Romeinsch Privaatrecht (3rd ed 1948) 83.
21
Buckland WW A Text-Book of Roman Law from Augustus to Justinian (3rd rev ed Stein P, 1963) 248.
22
23
Gai Inst 2.51; Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 83.
24
Gai Inst 2.41, 2.44; Grotius Inleidinge 2.7.4; Johnston D Roman Law in Context (1999) 57; Sonnekus JC &
Neels JL Sakereg Vonnisbundel (2nd ed 1994) 309-310; Marx FE Verkrygende Verjaring in die Suid-Afrikaanse
Reg (1994) 16-17. The traditional justifications behind prescription are discussed in greater detail in section 4.2
of chapter four below.
25
250 BC until 250 AD.
26
by Dannenbring R, 3rd ed 1980) 131.
19
usucapio.27 At this time legal possession already comprised the two elements known today in
South African law, namely the corpus (physical) and animus (mental) elements.28 Corpus
referred to the physical possession of the property, while the animus required the possessor to
possess the property with the animus domini, or with the intention of an owner.29 The main
difference between usucapio and prescription under the Twelve Tables is the fact that
usucapio required the possessor to possess the thing bona fide30 and iustus titulus. 31 These
new requirements notably restricted the possibility to acquire dominium through usucapio.32
Initially bona fides and iustus titulus did not exist independently from each other, but
overlapped to some extent.33 Accordingly, it was feasible to hold property bona fide without
complying with the iustus titulus requirement, though it was impossible to satisfy the latter
requirement if you were not also in good faith.34
Bona fides required the possessor to be in good faith at the moment of traditio.35 Since the
Romans did not define bona fides, it is difficult to ascertain the exact meaning of this phrase.
The majority of authors state that the possessor must have honestly believed at the moment
of traditio that he indeed became owner of the property concerned.36 In this instance bona
fides differs from the animus domini, which only requires the possessor to hold the thing with
the intention of an owner. Other sources mention that bona fides may be described as the
belief that the holder had a right to hold the property as his own.37 Whatever the precise
definition, bona fides was presumed in favour of the possessor because the law placed the
27
Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 200.
28
Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 116-117.
29
Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 117. Van Oven describes animus domini as
de wil om te zaak als eigenaar onder zich te hebben. ([T]he will to hold the thing as owner.) Hiemstra VG &
Gonin HL Trilingual Legal Dictionary (3rd ed 2006) 157 also translate animus domini as the intention of being
owner.
30
Gai Inst 2.43.
31
Just or valid title: See Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 201; Johnston D
Roman Law in Context (1999) 57; Kaser M Roman Private Law (trans by Dannenbring R, 3rd ed 1980) 131; De
Wet JC Opuscula Miscellanea (1979) 80; Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 84;
32
33
34
35
by Dannenbring R, 3rd ed 1980) 132; De Wet JC Opuscula Miscellanea (1979) 80; Buckland WW A Text-Book
of Roman Law from Augustus to Justinian (3rd rev ed Stein P, 1963) 244.
36
Gai Inst 2.43; Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 201; Van Oven JC
Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 84-85. A debate exists over whether this principle also
applied to contracts of sale, and whether the buyer had to be bona fide at the moment of consensus or traditio, or
both. This interesting topic will, however, not be investigated in this dissertation.
37
Buckland WW A Text-Book of Roman Law from Augustus to Justinian (3rd rev ed Stein P, 1963) 243- 244.
20
burden of proof on the party averring the contrary.38 It was impossible for a mala fide
possessor to acquire dominium over property by way of usucapio. 39
Bona fides was only required when the possessor acquired possession of the property;
subsequent mala fides did not serve to interrupt usucapio.40 This strict approach was certainly
enhanced by adding the iustus titulus requirement. Although the Romans never defined the
latter concept, it may be understood to mean good reason,41 or some fact which is
ordinarily a basis of acquisition.42 In my opinion, iustus titulus may simply be understood as
acquisition under a just or legal title. According to Van Oven, iustus titulus means that
the possessor had to acquire possession over the property in accordance with a legally
recognised ground before usucapio could start running in his favour.43 Although there was no
numerus clausus of iusti tituli during this time, there were some well established iusti tituli
possessionis that could give rise to usucapio.44 There was no presumption in favour of iusti
tituli, and as such it had to be proved by the party that claimed usucapio.45
For a person to acquire property through usucapio, it also had to be res habiles, or property
capable of begin usucaped.46 As seen above, already under the Twelve Tables some forms of
property like stolen property were excluded from the effects of usucapio. These
exceptions largely remained in force during the late republican and classical law eras. The lex
Iulia de vi (from the time of Augustus, between 27 BC and 14 AD) and lex Plautia (enacted
between 73 BC and 68 BC) equated things taken by force (vi) to stolen things and during the
38
Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 202; Kaser M Roman Private Law (trans
by Dannenbring R, 3rd ed 1980) 132; Buckland WW A Text-Book of Roman Law from Augustus to Justinian (3rd
rev ed Stein P, 1963) 245.
39
Gai Inst 2.49.
40
C 7.31.1.3: Mala fides superveniens non nocet. (Supervening mala fides does not break [or interrupt]
prescription.) See also Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 202; Van Oven JC
Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 84.
41
42
43
Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 85. See also De Wet JC Opuscula
Miscellanea (1979) 80.
44
Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 85. See also Kaser M Roman Private Law
(trans by Dannenbring R, 3rd ed 1980) 131. These authors list them as follows: pro emptore (D 41.4), pro donato
(D 41.6), pro dote (D 41.9), pro legato (D 41.8), pro derelicto (D 41.7), pro suo (D 41.10), pro soluto (D 41.3
46) and pro hedere (D 41.5). The content of these iusti tituli possessionis are not important for purposes of this
dissertation and will, therefore, not be investigated. For a comprehensive discussion on this topic, see Van Oven
JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 85-87 and Buckland WW A Text-Book of Roman Law
from Augustus to Justinian (3rd rev ed Stein P, 1963) 247.
45
46
21
Imperial period, property of the fisc or the Emperor was added to this category.47 Sacred
things such as temples and free men could not be acquired through usucapio either.48 The
initial prescription periods of one year for movables and two years for immovables were
retained for purposes of usucapio. 49
Usurpatio or interruption of usucapio could take place in two instances: Either by natural
interruption, when the possessor merely lost possession of the property for whatever reason,
or by civil interruption, which occurred when a legal claim was made to recover the
property.50 Civil interruption was only introduced during the classical period, as this concept
was unknown under the earlier Roman law.51 It seems that any formal claim under
Republican law, even short of litigation, amounted to civil interruption.52 Under classical law,
civil interruption only took place the moment judgment was given against the possessor.53
There existed two exceptions under classical law pertaining to the loss of possession. In the
first instance, an heir could continue the usucapio started by his predecessor in title if such
predecessor received the property under iustus titulus and was bona fide when he took
possession of the property.54 This was known as successio in usucapionem and mala fides on
the side of the heir did not interrupt the running of usucapio.55 However, if the predecessor in
title did not comply with either the iustus titulus or bona fide requirements, interruption took
place regardless of the fides of the heir.56 The second exception was accessio possessionis, or
47
Gai Inst 2.45; Kaser M Roman Private Law (trans by Dannenbring R, 3rd ed 1980) 131; Buckland WW A
Text-Book of Roman Law from Augustus to Justinian (3rd rev ed Stein P, 1963) 249; Van Oven JC Leerboek van
48
Gai Inst 2.48.
49
Gai Inst 2.42.
50
Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 201; Marx FE Verkrygende Verjaring in
die Suid-Afrikaanse Reg (1994) 27; Kaser M Roman Private Law (trans by Dannenbring R, 3rd ed 1980) 132;
51
Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 201; Van Oven JC Leerboek van
52
53
Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 201; Buckland WW A Text-Book of
Roman Law from Augustus to Justinian (3rd rev ed Stein P, 1963) 243.
54
Kaser M Roman Private Law (trans by Dannenbring R, 3rd ed 1980) 132; Buckland WW A Text-Book of
Roman Law from Augustus to Justinian (3rd rev ed Stein P, 1963) 242; Van Oven JC Leerboek van Romeinsch
Privaatrecht (3rd ed 1948) 89.
55
rev ed Stein P, 1963) 242; Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 89.
56
Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 201; Van Oven JC Leerboek van
22
what is better known as coniunctio temporum. This exception only applied in late classical
law and was recognised concerning successors in title to contracts of sale.57
Usucapio with its short prescription periods became impractical in the post-classical
period58 due to socio-political and economic developments, which contributed to the
disappearance of this legal institution from practice regarding immovables.59 In the
provinces, this resulted in the introduction of a new form of prescription for immovables
around 200 AD, namely praescriptio longi temporis.60 The prescription period was 10 years
if the possessor and owner were domiciled in the same municipality (inter praesentes) and if
not, 20 years (inter absentes).61 Movables could still be acquired through usucapio, but a
period of three years now applied.62 Regarding these new forms of prescription, most of the
rules under usucapio, such as bona fides and iustus titulus, were still in force.63 Another
institution developed later on, either under Constantine or his sons, which initially had a 40-
year period.64 This period was later reduced to 30 years and from 449 AD this institution
became imbedded in the law of the day.65
The Eastern Roman Empire no longer recognised usucapio as a method of prescription

during this time.66 Under the rule of the emperor Constantine, praescriptio longi temporis
was a well-established form of prescription, and this institution required iustus titulus and
57
58
250 AD until 500 AD.
59
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 32; Krause LE The History and Nature
of Acquisitive Prescription and of Limitation of Actions in Roman-Dutch Law (1923) 40 South African Law
Journal 26-41 31.
60
by Dannenbring R, 3rd ed 1980) 133; Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 87-88.
61
by Dannenbring R, 3rd ed 1980) 133; De Wet JC Opuscula Miscellanea (1979) 80; Buckland WW A Text-Book
of Roman Law from Augustus to Justinian (3rd rev ed Stein P, 1963) 250; Van Oven JC Leerboek van Romeinsch
Privaatrecht (3rd ed 1948) 88; Krause LE The History and Nature of Acquisitive Prescription and of Limitation
of Actions in Roman-Dutch Law (1923) 40 South African Law Journal 26-41 31; Wessels JW History of the
Roman-Dutch Law (1908) 635.
62
De Wet JC Opuscula Miscellanea (1979) 80; Krause LE The History and Nature of Acquisitive Prescription
and of Limitation of Actions in Roman-Dutch Law (1923) 40 South African Law Journal 26-41 31.
63
Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 204; De Wet JC Opuscula Miscellanea
(1979) 80; Wessels JW History of the Roman-Dutch Law (1908) 635.
64
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 32-33; Buckland WW A Text-Book of
65
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 32-33; Buckland WW A Text-Book of
66
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 33-34.
23
probably also bona fides.67 At this stage the distinction between iustus titulus and bona fides
became clearer.68 The periods of 10 years inter praesentes and 20 years inter absentes also
applied, and both movables and immovables could be acquired through praescriptio longi
temporis.69 Between 326 and 333 AD, Constantine introduced another form of prescription
with a period of 40 years, which is mentioned above.70 This form of prescription merely
required possession.71 Although the old requirements of iustus titulus and bona fides were
dropped, this vacuum was filled by considerably lengthening the prescription period. It seems
that this form of prescription became the forerunner of praescriptio longissimi temporis,
which was later introduced under Justinian.72 If a possessor satisfied the requirements of
praescriptio longi temporis, he could also acquire dominium under this method of
Constantinian prescription.73 However, it seems that praescriptio longi temporis no longer
played any role after Constantines reign.74 The forerunner of praescriptio longissimi
temporis, with its 40-year prescription period, was reduced to 30 years, and iustus titulus was
in all probability still not required.75 Even at this time there was very little differentiation
between acquisitive and extinctive prescription.76
When the emperor Justinian came to power in 527 AD, his great ambition was to revive the
glory of the Roman Empire of old. In order to achieve this goal, he realised that his new
Empire would have to be governed by an up-to-date legal system. He therefore commissioned
the best legal scholars of the day to produce a legal code that later became known as the
Corpus Iuris Civilis.77 This code was a compilation of the works of the five most
authoritative Roman law jurists, namely Gaius, Ulpian, Modestinus, Paulus and Papinian, and
67
68
69
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 34; Buckland WW A Text-Book of Roman
Law from Augustus to Justinian (3rd rev ed Stein P, 1963) 250.
70
die Suid-Afrikaanse Reg (1994) 34; Kaser M Roman Private Law (trans by Dannenbring R, 3rd ed 1980) 133.
71
rev ed Stein P, 1963) 251; Wessels JW History of the Roman-Dutch Law (1908) 636.
72
Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 204.
73
74
75
76
77
Justinians code consisting of the Digest, Institutes, Codex and Novellae did not have an official name; the
name Corpus Iuris Civilis was coined by Gothofredus in 1583: See Thomas PhJ, Van der Merwe CG & Stoop
BC Historiese Grondslae van die Suid-Afrikaanse Privaatreg (2000) 49.
24
formed the precursor for todays civil codes in most civil law countries. These efforts of
Justinian had profound effects on the development of the law of prescription, which consisted
of a reintroduction of a varied form of usucapio for movables, the reinstatement of
praescriptio longi temporis and the creation of a new type of prescription, namely
praescriptio longissimi temporis.78
Justinian attempted to create a uniform prescription law.79 Concerning immovable property,

he fused the old institutions of usucapio (with its short periods) with praescriptio longi
temporis (with its longer period), and thus required a longer period of possession before the
possessor could acquire dominium. 80 Usucapio now only applied to movables, for which
possession of three years was required, together with the requirements of bona fides and
iustus titulus from the classical period.81 As to immovables, the new fused form of
praescriptio longi temporis required a possessor to possess the property for 10 years inter
praesentes, or 20 years inter absentes, together with bona fides and iustus titulus.82 Under
Justinian, the distinction between iustus titulus and bona fides finally crystallised.83 Justinian
also made it clear that usucapio and praescriptio longi temporis were forms of acquisitive
prescription, which he distinguished from extinctive prescription.84 Iustus titulus now applied
to both usucapio and praescriptio longi temporis.85 Although usucapio and praescriptio longi
78
79
Kaser M Roman Private Law (trans by Dannenbring R, 3rd ed 1980) 133.
80
die Suid-Afrikaanse Reg (1994) 36; Kaser M Roman Private Law (trans by Dannenbring R, 3rd ed 1980) 133;
Buckland WW A Text-Book of Roman Law from Augustus to Justinian (3rd rev ed Stein P, 1963) 251; Lee RW
An Introduction to Roman-Dutch Law (5th ed 1953) 140; Krause LE The History and Nature of Acquisitive
Prescription and of Limitation of Actions in Roman-Dutch Law (1923) 40 South African Law Journal 26-41
31.
81
Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 200 204; Kaser M Roman Private Law
(trans by Dannenbring R, 3rd ed 1980) 133; De Wet JC Opuscula Miscellanea (1979) 80; Buckland WW A Text-
Book of Roman Law from Augustus to Justinian (3rd rev ed Stein P, 1963) 251; Van Oven JC Leerboek van
Romeinsch Privaatrecht (3rd ed 1948) 89; Krause LE The History and Nature of Acquisitive Prescription and
of Limitation of Actions in Roman-Dutch Law (1923) 40 South African Law Journal 26-41 31.
82
Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 200, 204; Marx FE Verkrygende
Verjaring in die Suid-Afrikaanse Reg (1994) 36-37; Kaser M Roman Private Law (trans by Dannenbring R, 3rd
ed 1980) 133; De Wet JC Opuscula Miscellanea (1979) 80; Buckland WW A Text-Book of Roman Law from
Augustus to Justinian (3rd rev ed Stein P, 1963) 250; Lee RW An Introduction to Roman-Dutch Law (5th ed
1953) 140-141; Krause LE The History and Nature of Acquisitive Prescription and of Limitation of Actions in
Roman-Dutch Law (1923) 40 South African Law Journal 26-41 31. Inter praesentes and absentes in this
instance no longer referred to the municipality of domicile of the owner and possessor, but to whether these
parties were now domiciled within the same province or not: See Buckland WW A Text-Book of Roman Law
from Augustus to Justinian (3rd rev ed Stein P, 1963) 250.
83
84
85
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 37; Wessels JW History of the Roman-
Dutch Law (1908) 636.
25
temporis were part of Justinians acquisitive prescription law, their effects differed. As such,
usucapio was a derivative method of acquisition of ownership, while praescriptio longi
temporis was an original method of acquisition of ownership.86 Pertaining to the position of
accessio possessionis, Justinian revised the law by ensuring that this doctrine applied to all
types of successors in title, be it under either praescriptio longi temporis or usucapio.87 This
was a significant departure from the position under the classical law, as discussed above.
Even under Justinian, some forms of property were still regarded as res inhabiles, which
could not be acquired through prescription.88 The old res habiles requirement was even
extended in that prescription could not run against the state.89 It seems that this was the first
time in history that the acquisition of state property through acquisitive prescription was
prohibited.
Justinian also introduced a new type of prescription, namely praescriptio longissimi temporis.
It required a period of 30 years and in some cases 40 years.90 Through this form of
prescription all manner of rights could be acquired, which included movable or immovable
property, and even mere rights of action (like servitudes).91 Iustus titulus was no longer
required, although it seems that bona fides was initially still considered a requirement.92 In
this instance, bona fides was also presumed in favour of the possessor, but could be
disproved.93 Bona fides was still only required at the moment of acquisition of possession;
86
87
Buckland WW A Text-Book of Roman Law from Augustus to Justinian (3rd rev ed Stein P, 1963) 242-243,
250; Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 89.
88
rev ed Stein P, 1963) 250.
89
C 7.38: Contra principem non currit praescriptio. (Against the principate [or state], prescription does not
run.) See also Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 37.
90
by Dannenbring R, 3rd ed 1980) 133; De Wet JC Opuscula Miscellanea (1979) 80; Van Oven JC Leerboek van
91
Wessels JW History of the Roman-Dutch Law (1908) 636.
92
die Suid-Afrikaanse Reg (1994) 39; Kaser M Roman Private Law (trans by Dannenbring R, 3rd ed 1980) 133; De
Wet JC Opuscula Miscellanea (1979) 80; Buckland WW A Text-Book of Roman Law from Augustus to
Justinian (3rd rev ed Stein P, 1963) 251; Lee RW An Introduction to Roman-Dutch Law (5th ed 1953) 141; Van
Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 89; Wessels JW History of the Roman-Dutch Law
(1908) 636-637.
93
Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 89; Krause LE The History and Nature of
Journal 26-41 32.
26
subsequent mala fides did not prevent the running of praescriptio longissimi temporis. 94 Later
sources omit bona fides as a requirement, with the effect that even rei furtivae could then be
acquired through this legal institution.95 However, the harsh effects of this development were
tempered by the fact that the nec vi (without violence) requirement was introduced as one of
the requirements of praescriptio longissimi temporis, which required that the possessor must
have acquired possession peaceably and not through violence.96 In this context it is worth
emphasising that Canon law reintroduced bona fides. Indeed, not only did the acquisition of
possession need to be bona fide under Canon law, the possessor had to be bona fide
throughout the whole prescription period.97
Justinian also formalised the postponement and interruption of prescription law.

Postponement had the effect that the completion of the prescription period was postponed due
to a certain factor. A famous example in this regard is the fact that from the earliest times,
prescription did not run against those who were incapable of managing their own affairs, like
minors.98 Interruption occurred when a certain event took place that ended the running of
prescription, which resulted that the prescription period had to begin running de novo. Under
praescriptio longi temporis, interruption occurred at the moment of litis contestatio.99
However, this was not the case under usucapio. Here the possessor could become owner of
the property even after litis contestatio. 100 Cases were decided tempore litis contestatio,
which meant that the possessor could be ordered to give the property back to the original
owner, even after he (the possessor) became owner of it through prescription.101
94
95
96
97
Grotius Inleidinge 2.7.3; Kaser M Roman Private Law (trans by Dannenbring R, 3rd ed 1980) 132; De Wet JC
Opuscula Miscellanea (1979) 80; Krause LE The History and Nature of Acquisitive Prescription and of
Limitation of Actions in Roman-Dutch Law (1923) 40 South African Law Journal 26-41 32; Wessels JW
History of the Roman-Dutch Law (1908) 642.
98
99
Borkowski A & Du Plessis P Textbook on Roman Law (3rd ed 2005) 201; Buckland WW A Text-Book of
Roman Law from Augustus to Justinian (3rd rev ed Stein P, 1963) 250; Van Oven JC Leerboek van Romeinsch
Privaatrecht (3rd ed 1948) 90.
100
101
27
It seems as though it was possible to acquire servitudes through prescription under the old
Roman law, although this was largely prohibited by the lex Scribonia from around 50 BC.102
Nonetheless, this lex did not abolish the acquisition of the urban servitudes of altius tollendi,
officiendi luminibus vicini and stillicidii non avertendi (building higher, obscuring light and
diverting rain water) through prescription.103 Van Oven mentions that during the classical era,
servitudes were viewed as rei incorporales, which could not be legally possessed and that
could thus not be acquired through prescription.104 However, it seems that it was possible to
acquire the servitude of aquaeductus through long-term use (diuturnus usus), which use also
had to be nec vi, nec clam and nec precario. 105 Under the reign of Justinian, the rules relating
to the lex Scribonia and the ban on acquisition of servitudes through prescription were
abolished and henceforth, rei incorporales (like servitudes) could be acquired through
praescriptio longi temporis.106 Yet, prescription as relating to servitudes needs to be
distinguished from that relating to corporeal property. As seen above, the latter required both
bona fides and iustus titulus. For servitudes the requirements were merely:
i) possession or use for the duration of the prescription period (quasi possessio
regarding res incorporales);
ii) exercise of the servitude as of right; and
iii) exercise of the right vis--vis the owner of the property nec vi (without violence),
nec clam (openly) and nec precario (as of right and not by the owners leave and
license).107
2.2.3 Acquisitive prescription under Roman-Dutch law

102
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 40; Van Oven JC Leerboek van
103
Krause LE The History and Nature of Acquisitive Prescription and of Limitation of Actions in Roman-
Dutch Law (1923) 40 South African Law Journal 26-41 33.
104
Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 148. See also Marx FE Verkrygende
Verjaring in die Suid-Afrikaanse Reg (1994) 40-41.
105
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 41; Van Oven JC Leerboek van
Romeinsch Privaatrecht (3rd ed 1948) 151-152.
106
C 7.33.12.4: Eodem observando et si non soli sint, sed incorporales, quae in iure consistunt, veluti
ususfructus et ceterae servitudes. Krause LE The History and Nature of Acquisitive Prescription and of
Limitation of Actions in Roman-Dutch Law (1923) 40 South African Law Journal 26-41 34 translates this
provision as follows: The same rules as to usucapion in 10 or 20 years must be observed even if the property is
not land, but is incorporeal and consists of rights, like usufruct and the other servitudes. See also Van Oven JC
Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 89, 151.
107
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 41; Krause LE The History and Nature
of Acquisitive Prescription and of Limitation of Actions in Roman-Dutch Law (1923) 40 South African Law
Journal 26-41 32-34.
28
Lee describes the difficulty of studying Roman-Dutch prescription law:
In the Netherlands the whole subject of prescription was involved in the greatest uncertainty,
according as local practice approached to or receded from the Roman Law. The situation was
further complicated by the presence of two new terms of prescription, a shorter period of a year
and a day ... and a longer period of a third of a century ...108
Despite the distinction Justinian drew between acquisitive and extinctive prescription, it
seems that Roman-Dutch lawyers did not clearly distinguish between these concepts, which
once more resulted in confusion.109 Nonetheless, it is clear that prescription during this time
required neither bona fides nor iustus titulus.110 According to some authors, the only
requirements were uninterrupted possession for 30 years (or a third of a century)111 that
needed to commence nec vi, nec clam and nec precario.112 Although this is an
oversimplification, as will be seen, these requirements formed the crux of prescription during
this period. Interestingly, it appears that Roman-Dutch prescription law adopted the same
requirements for acquisition of incorporeal property (ie servitudes) under Roman law, namely
possession nec vi, nec clam and nec precario.
Usucapio, with its periods of three, 10 and 20 years, was no longer in force under Roman-
Dutch law.113 Nonetheless, most rules incidental to usucapio according to Voet also
applied to prescription in Roman-Dutch law.114 This included the rules, inter alia, relating to
who could acquire property though prescription,115 what kind of property could be
acquired116 as well as the rules pertaining to stolen and pledged property.117 In the
Netherlands the usual period for prescription was 30 years, but the province of Holland
108
Lee RW An Introduction to Roman-Dutch Law (5th ed 1953) 141 (footnotes omitted). In this regard, see also
Grotius Inleidinge 2.7.5 2.7.7.
109
110
Voet 44.3.9; Lee RW An Introduction to Roman-Dutch Law (5th ed 1953) 142. Unfortunately, Grotiuss
discussion on long prescription in Inleidinge is silent on this matter. This could be construed as implying that
bona fides and iustus titulus were no longer required.
111
A third of a century, according to Voet 44.3.8 and Lee RW An Introduction to Roman-Dutch Law (5th ed
1953) 141.
112
Lee RW An Introduction to Roman-Dutch Law (5th ed 1953) 142; Krause LE The History and Nature of
Journal 26-41 32. The position regarding acquisitive prescription under Roman-Dutch law is not crystal clear,
however, and the presence of local enactments regulating prescription makes it difficult to ascertain how
prescription operated during this time in the Netherlands: See De Wet JC Opuscula Miscellanea (1979) 81.
113
Voet 44.3.7.
114
Krause LE The History and Nature of Acquisitive Prescription and of Limitation of Actions in Roman-
Dutch Law (1923) 40 South African Law Journal 26-41 32-33.
115
Voet 41.3.2.
116
Voet 41.3.11.
117
Voet 41.3.14.
29
adopted a period of 30 years for movables and a third of a century for immovables.118 The
province of Zeeland took over the prescription rules relating to inter praesentes and absentes,
although it extended the periods by requiring 20 years inter praesentes and 30 years inter
absentes. 119 In this sense, iustus titulus and bona fides were also not required.120 As to the
precise periods of prescription, one is struck by the variety of different rules that prevailed in
the different Dutch towns.121 It is clear that the law of Holland recognised many prescription
institutions, each with its own requirements.122 Some of these existed long before Roman law
was introduced in Holland.123 Others came from Germanic law, such as the year and a day
rule, while the influence of Canon law, as well as the reception of Roman law, also had
profound effects on the development of prescription law during this time.124
The Germanic year and a day rule already existed before the 12th century and was also known
as rechte gewere or Verschweigung. 125 The word gewere refers to actual control over an
object and rechte gewere is gewere that was protected by law.126 A person could qualify for
rechte gewere if he acquired control (gewere) over the object by way of a legally (rechte)
recognised method.127 The prescription period only began to run after such a person obtained
gewere by way of a legally recognised method, like a public announcement or delivery in
accordance with the law of that place.128 Rechte gewere was obtained when a person had
gewere over property for a year and a day, without interference from the owner.129 Although
the possessor did not acquire ownership over the property concerned, he could plead this new
118
Grotius Inleidinge 2.7.8; Lee RW An Introduction to Roman-Dutch Law (5th ed 1953) 141-142; Wessels JW
History of the Roman-Dutch Law (1908) 638. There is a debate over whether the period of a third of a century
only applied to immovable property and whether it also applied to movables. For purposes of this dissertation it
can be assumed that in the province of Holland a period of 30 years applied to movables and a third of a
century for immovables: See Wessels JW History of the Roman-Dutch Law (1908) 640-641.
119
Grotius Inleidinge 2.7.8; Voet 44.3.9; Wessels JW History of the Roman-Dutch Law (1908) 638.
120
Voet 44.3.9.
121
122
123
124
125
Hijmans IH De Verjaringsinstituten (1892) 8-9; Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg
(1994) 52. See also Grotius Inleidinge 2.7.7.
126
Hijmans IH De Verjaringsinstituten (1892) 8-9; Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg
(1994) 52.
127
Hijmans IH De Verjaringsinstituten (1892) 9-10; Marx FE Verkrygende Verjaring in die Suid-Afrikaanse
Reg (1994) 52.
128
Grotius Inleidinge 2.7.7; Voet 44.3.8. To the contrary is Van Apeldoorn LJ Inleidinge tot de Hollandsche
Rechts-geleerdheid Beschreven bij Hugo de Groot (4th ed 1939) 130, where he states that a public
announcement was not a requirement in every Dutch town. This is yet another illustration of how prescription
law differed from province to province and town to town, which further complicates the study of this field of
law.
129
Grotius Inleidinge 2.7.7; Hijmans IH De Verjaringsinstituten (1892) 9-10; Marx FE Verkrygende Verjaring
in die Suid-Afrikaanse Reg (1994) 52.
30
right to defeat the owners rei vindicatio.130 In other words, the possessor obtained an
unassailable right over the property in this manner.131 In my opinion, prescription of a year
and a day constitutes a sui generis form of prescription, since it has characteristics common
to both acquisitive and extinctive prescription.132 This is because through rechte gewere the
possessor obtained an unassailable right to the property after possessing it for a year and a
day and by satisfying all the requirements of this legal institution.133 Thus, the owner lost his
rei vindicatio to reclaim possession (an element of extinctive prescription), while the
possessor acquired an unassailable right to the property through rechte gewere (an element of
acquisitive prescription).134 Voet thinks that this form of prescription applied in the
provinces of Holland and Utrecht, and that the possessor must have obtained possession of
the property by way of a just cause (iustus titulus), together with peaceful (nec vi) possession
and good faith (bona fides).135 However, this form of prescription largely fell into disuse by
the end of the seventeenth century.136 Despite this, the year and a day rule survived in a very
unique form, not regarding the acquisition of ownership, but pertaining to encroachments.137
Grotius examines this phenomenon under his discussion of the acquisition of servitudes:
Maer een ghetimmert dat jaer ende dag onbeklaegt heeft ghestaen is daer mede genoegt
verjaert, behoudens den beschadigde redelicke vergoedinge.138
This unique form of prescription only applied to buildings or structures that encroached onto
the land of another and entailed that the encroaching owner could become owner of that part
130
Van Apeldoorn LJ Inleidinge tot de Hollandsche Rechts-geleerdheid Beschreven bij Hugo de Groot (4th ed
1939) 127.
131
Grotius Inleidinge 2.7.7; Van Apeldoorn LJ Inleidinge tot de Hollandsche Rechts-geleerdheid Beschreven bij
Hugo de Groot (4th ed 1939) 127-133.
132
Hijmans IH De Verjaringsinstituten (1892) 11 is of the opinion that rechte gewere cannot be classified as
being either acquisitive or extinctive prescription, while Van Apeldoorn LJ Inleidinge tot de Hollandsche
Rechts-geleerdheid Beschreven bij Hugo de Groot (4th ed 1939) 130-131 mentions that the effect of this
institution is both extinctive and acquisitive at the same time. Nonetheless, the precise categorisation of this
interesting notion falls outside the scope of this dissertation and will, therefore, not be discussed here.
133
Hijmans IH De Verjaringsinstituten (1892) 9-10; Van Apeldoorn LJ Inleidinge tot de Hollandsche Rechts-
geleerdheid Beschreven bij Hugo de Groot (4th ed 1939) 131.
134
Hijmans IH De Verjaringsinstituten (1892) 9-10; Van Apeldoorn LJ Inleidinge tot de Hollandsche Rechts-
geleerdheid Beschreven bij Hugo de Groot (4th ed 1939) 131.
135
Voet 44.3.8.
136
Voet 44.3.8; Hijmans IH De Verjaringsinstituten (1892) 11-12; Marx FE Verkrygende Verjaring in die Suid-
Afrikaanse Reg (1994) 53; Lee RW An Introduction to Roman-Dutch Law (5th ed 1953) 141; Wessels JW
History of the Roman-Dutch Law (1908) 638. Voet discusses this form of prescription under the heading
Prescription in Holland and Utrecht of a year and a day on quite possession with just cause no longer in force:
See Voet 44.3.8.
137
138
Grotius Inleidinge 2.36.5. (An encroachment that has stood for a year and a day without protestation [by the
owner] is through this method regarded as prescribed, subject to reasonable compensation to the owner.) Voet
8.4.6 also examines this form of prescription under his discussion of the acquisition of praedial servitudes
through prescription.
31
of the neighbours property, but in such a case the encroacher had a duty to reasonably
compensate the loss of the other owner.139 However, according to Van Apeldoorn, the Hoge
Raad (the Supreme Court of the Netherlands) rejected this rule in January 1720. The Court
reasoned that it only applied in certain Dutch towns and that Grotius erroneously regarded it
as law of general application (ius generale), which according to the Court was not the
case.140 Van Bijnkershoek discusses the impact of this decision as follows:
Doctrina Grotii ex statutis quarundam urbium originem traxit, ut notat Groenew. ad Grot,
quibus abuti non convenit ad statuendum jus generale, quod tamen Grotio perquam familiare
est.141
Voet also refers to this form of prescription and states that it only applied in cases concerning
encroachment by buildings or structures.142 He describes the rule in cases where a neighbour
builds something into a communal wall, which then constitutes an encroachment:
An exception would be when local custom directs that no one is forced to demolish if he has
had the work there for more than a year and a day, though it was done quite wrongfully and to
the damaging of the neighbour; but that he is released by paying out the damages.143 (Emphasis
added.)
Accordingly, it has to be determined whether this type of prescription forms part of modern
South African prescription law. One of the few cases dealing specifically with this issue is
Rand Waterraad v Bothma en n Ander (Rand Waterraad)144 where the Court, after an
extensive analysis of the old sources, found that the year and a day rule was not a rule of
general application under Roman-Dutch law and was, therefore, not received into South
African law.145 The Court refers to much the same Roman-Dutch sources discussed above.
Support for this argument is even found in writings by contemporary South African authors
139
140
Van Apeldoorn LJ Inleidinge tot de Hollandsche Rechts-geleerdheid Beschreven bij Hugo de Groot (4th ed
1939) 205, who relies on Van Bijnkershoek Obs Tum II 1695.
141
Van Bijnkershoek Obs Tum II 1695. (The doctrine of Grotius originates from the statutes of certain cities, as
Groenewegen notes on Grotius, from which one cannot deduce that it constituted law of general application,
because perhaps only Grotius was familiar with it.)
142
Voet 8.4.6.
143
Voet 8.2.17. Voet refers to it as local custom, which is yet another indication that this rule was not of
general application. See also Cilliers JB & Van der Merwe CG The Year and a Day Rule in South African
Law: Do our Courts have a Discretion to Order Damages Instead of Removal in the Case of Structural
Encroachments on Neighbouring Land? (1994) 57 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 587-595
589.
144
1997 (3) SA 120 (O). For a general source on this case, see Temmers Z Building Encroachments and
Compulsory Transfer of Ownership (LLD Thesis Stellenbosch University 2010).
145
Rand Waterraad v Bothma en n Ander 1997 (3) SA 120 (O) 130. There are other cases where the year and a
day rule was discussed, but in none of them did the Court actually decide whether it applied in South African
law or not. For instance, see Naude v Bredenkamp 1956 (2) SA 448 (O) 451 and Cape Town Municipality v
Fletcher and Carthwrights Ltd 1936 OPD 347 352.
32
before the Rand Waterraad case was decided.146 In the light of this decision, as well as the
discussion of the developments surrounding this rule above, one can safely conclude that it
was not of universal application in Roman-Dutch law and could, therefore, never have
formed part of South African prescription law. There can be no doubt that Hattingh J in Rand
Waterraad was correct to arrive at this conclusion. The correctness of this case is put beyond
doubt by the decision of the Hoge Raad on 19 and 20 January 1720, where it found the rule
not to be of general application in the Netherlands.147
Vetustas, or immemorial use, also applied in Roman-Dutch law, but was only relevant
regarding the acquisition of servitudes through prescription.148 As in modern South African
law, there was not always a clear distinction in this context. Despite the presence of these
many forms of prescription under Roman-Dutch law, for present purposes it is only necessary
to focus on the type of prescription that was received into South African law, namely
prescription of 30 years. The problem, again, with studying this form of prescription is the
fact that many of the towns and cities in the Netherlands during this time had their own
adaptations of this institution.149 Accordingly, one must be careful not to regard all rules used
by some towns concerning prescription as being of universal application.150
Henceforth, I simply refer to prescription of a third of a century as prescription. It is not

known when precisely this institution originated.151 Be that as it may, by the seventeenth
century prescription was regarded as binding law in Holland.152 The law required a person to
possess property before he could acquire ownership in this manner.153 Grotius states that one
must distinguish between bezit (possession) and bezitrecht (right of possession). According to
him, bezitrecht is that which flows forth from bezit.154 He describes bezit as the immediate
holding of a thing with the intention of holding it for ourselves and not for others.155 From
146
Cilliers JB & Van der Merwe CG The Year and a Day Rule in South African Law: Do our Courts have a
Discretion to Order Damages Instead of Removal in the Case of Structural Encroachments on Neighbouring
Land? (1994) 57 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 587-595 588-589, 591.
147
Van Bijnkershoek Obs Tum II 1695.
148
149
150
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 56-57.
151
152
153
Grotius Inleidinge 2.7.1; Voet 44.3.9.
154
Grotius Inleidinge 2.2.1.
155
Grotius Inleidinge 2.2.2: Bezit is dadelyke behouding van een zaak, met wille om die te behouden voor ons
en niet voor een ander. (Possession is the immediate holding of a thing with the intention of holding it for
ourselves and not for others.)
33
this quotation it is clear that possession consisted of two elements, namely a corpus
(physical) element and an animus (intention) element. Although Grotius does not further
describe these two concepts, he states that lessees, borrowers and persons to whom things are
entrusted cannot be said to possess property.156 This qualification made it impossible for such
persons to acquire property through prescription, as they did not have the necessary
possession. It was possible to possess property through an agent, for instance when a lessor
possessed leased property through a lessee.157 Voet requires that the possession must be
peaceful and continuous and that the possessor must hold the property with the intention of
keeping it for himself without acknowledging the rights of the true owner.158 In this instance
the animus and corpus elements of possession are again distinguishable. Interestingly, the
animus required of the possessor at this time did not oblige such possessor to hold the
property with the belief that he was the owner of it (animus domini).159 It was merely
required that the possessor possesses the property animo sibi habendi, which literally
translates as the intention of keeping the thing for yourself.160 Consequently, all that was
necessary was that the possessor possessed the property with the intention of holding it for
himself without acknowledging the rights of the true owner.
At this time the period for prescription was a third of a century and it applied to both
movables and immovables, as well as actions and servitudes.161 A servitude had to be
exercised nec precario. 162 As mentioned, iustus titulus and bona fides no longer formed part
of prescription at this stage.163 The requirements for prescription may be summarised as
follows:
i) possession of the property with the intention of keeping it for oneself (animus rem
sibi habendi);
156
157
158
Voet 44.3.9.
159
This anomaly is pointed out in Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 62.
160
Voet 44.3.9. The original Latin text of Voet refers to the animo sibi habendi, which Gane translates as the
intention of keeping [the property] for himself. Hiemstra VG & Gonin HL Trilingual Legal Dictionary (3rd ed
2006) 157-158 also translate animus sibi habendi as the intention of holding something for oneself.
161
Grotius Inleidinge 2.7.8, 2.36.4; Voet 44.3.8. Some sources state that a third of a century only applied to
immovables, while 30 years applied to movables: See Lee RW An Introduction to Roman-Dutch Law (5th ed
1953) 141 142. For purposes of this discussion, it is assumed that the period of a third of a century applied to
both movables and immovables during this time.
162
163
Voet 44.3.9.
34
ii) possession (for corporeal things) or quasi-possession (for incorporeal things, like
servitudes) needed to be continuous and peaceful (nec vi);
iii) possession without any disturbance by the owner throughout the prescription
period; and
iv) the possessor must in no way have acknowledged the rights of the owner.164
The principle of coniunctio temporum, as seen during the time of Justinian, also applied in
Roman-Dutch law.165 The acquisition of servitudes under Roman-Dutch law largely
conforms to what was required under Roman law. According to Grotius, to acquire a
servitude through prescription, a person needed to make use of a servitude for a third of a
century and such use must have been nec precario, or without the owners consent.166 Voet
also mentions that servitudes can be acquired through prescription over a period of a third of
a century.167 Nec vi (without violence) and nec clam (openly) also formed part of the
requirements to acquire servitudes at this time.168 As to bona fides and iustus titulus, the
common view is that they were not required concerning servitudes either.169 As to
prescription against the state, prescription could run against alienable state property, but not
with regard to inalienable state property, such as property for the public benefit.170
The position surrounding suspension under Roman-Dutch law is unclear. It seems that
prescription did not run against minors or people incapable of administrating their own
affairs.171 In other words, prescription did not run against those who were incapable of
performing juridical acts.172 Consequently, it is clear that the rule of contra non valentem non
currere praescriptionem did apply in Roman-Dutch law, although the precise ambit of the
164
Voet 44.3.9. See also Grotius Inleidinge 2.36.4 and Lee RW An Introduction to Roman-Dutch Law (5th ed
1953) 142.
165
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 63; Lee RW An Introduction to Roman-
Dutch Law (5th ed 1953) 143.
166
167
Voet 8.4.6.
168
Voet 8.4.4; Grotius Inleidinge 2.36.4 2.36.6.
169
Grotius Inleidinge 2.36.4; Voet 8.4.4. Although Voet requires bona fides for acquiring servitudes through
prescription, this view was not common among the other Roman-Dutch legal authors. Grotius, for instance, does
not put bona fides as a requirement for prescription.
170
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 70; Lee RW An Introduction to Roman-
Dutch Law (5th ed 1953) 143.
171
Grotius Inleidinge 2.7.8; Voet 44.3.11; Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994)
70; Lee RW An Introduction to Roman-Dutch Law (5th ed 1953) 143.
172
For examples in this regard, see Voet 44.3.11 and Lee RW An Introduction to Roman-Dutch Law (5th ed
1953) 143.
35
rule was uncertain.173 Interruption fulfilled much the same role as under Roman law, with the
division between natural and civil interruption still forming part of Roman-Dutch law.174
2.3 South African prescription law since 1943

2.3.1 Introduction
Acquisitive prescription (verkrygende verjaring in Afrikaans) is one of the original methods
of acquisition of ownership in South African law,175 which was received when the Dutch East
India Company brought Roman-Dutch law to the Cape in 1652. Property obtained through
this method of acquisition is acquired free from any previous encumbrance, such as limited
real rights and mortgages.176 Furthermore, original acquisition of ownership entails that a
person acquires ownership without the assistance or permission of the previous owner.
South African prescription law was formalised for the first time by the Prescription Act 18 of
1943 (1943 Act),177 later followed by the Prescription Act 68 of 1969 (1969 Act).178
Although the 1969 Act repealed the earlier 1943 Act, it did not do so with retrospective
effect.179 Accordingly, all prescription periods running up until 30 November 1970 (the 1969
Act came into operation on 1 December 1970) have to comply with the requirements as set
out by the 1943 Act, with the remainder of the period having to comply with the requirements
of the 1969 Act. This means that the two acts ran in tandem until 30 November 2000. After
this date, most periods will only have to comply with the requirements set out by the 1969
173
Scholtens JE Praescriptio Jus Possidendi and Rei Vindicatio (1972) 89 South African Law Journal 383-
395 386-387.
174
Lee RW An Introduction to Roman-Dutch Law (5th ed 1953) 142.
175
Section 2(2) of the Prescription Act 18 of 1943 and section 1 of the Prescription Act 68 of 1969. See also
Sonnekus JC Die Rei Vindicatio en Verjaring Of Nie 2010 Tydskrif vir die Suid-Afrikaanse Reg 576-
590 576; Sonnekus JC Sub Hasta-veilings en die Onderskeid tussen Afgeleide en Oorspronklike Wyses van
Regsverkryging 2008 Tydskrif vir die Suid-Afrikaanse Reg 696-727 699; Sonnekus JC & Neels JL Sakereg
Vonnisbundel (2nd ed 1994) 309; Marx FE Eiendomsverkryging deur Verjaring en Beperkte Saaklike Regte
(1994) 15 Obiter 161-171 167, 170-171; Van der Merwe CG & De Waal MJ The Law of Things and Servitudes
(1993) para 149; Van der Merwe CG Sakereg (2nd ed 1989) 268
176
Sonnekus JC Sub Hasta-veilings en die Onderskeid tussen Afgeleide en Oorspronklike Wyses van
(1994) 15 Obiter 161-171 170-171. There exists a debate over whether acquisitive prescription truly
extinguishes existing limited real rights and mortgages regarding prescribed properties. For purposes of this
dissertation it is assumed that property acquired through acquisitive prescription is received free from previous
limited real rights and/or mortgages registered over that property.
177
This Act came into operation on the 19th of April 1943, with the Afrikaans text signed by the Officer
Administering the Government.
178
This Act came into operation on the 1st of December 1970, with the English text signed by the State
President. For a background discussion to this Act, see De Wet JC Opuscula Miscellanea (1979) 77-144.
179
Section 5 of the Prescription Act 68 of 1969.
36
Act. However, this does not imply that all prescription cases brought to court after 30
November 2000 only have to comply with this Act, as situations involving extreme cases of
postponement can still be encountered.180 In such a scenario, a part of the prescription period
may still have to comply with the requirements of the 1943 Act. For this reason, both acts are
discussed in this chapter, with particular focus on the similarities between them. Another
reason for this approach is the fact that most of the case law decided under the 1943 Act still
applies to contemporary prescription law. A brief introduction to the two prescription acts
regarding prescription ensues, followed by a discussion of their requirements.
According to section 2(1) of the 1943 Act, acquisitive prescription (prescription) is the
acquisition of ownership through the possession of another persons movable or immovable
property,181 or the use of a servitude182 in respect of immovable property, continuously for 30
years nec vi, nec clam, nec precario.183 As seen from the historical analysis, these words have
through the development of case law come to be understood as meaning without force
(nec vi), openly (nec clam) and without the owners consent (nec precario).184 Prescription
does not only run against natural persons, but also against public corporations, municipal
councils and the state.185 The possessor or user ipso iure186 becomes the owner of the
property or servitude concerned once the 30-year prescription period expires.187 Since the
possessor acquires full ownership, the South African law of prescription is truly acquisitive
in nature. Should the owner aver absence of negligence on his side, this will be of no avail to
him, as negligence on the part of the owner is not a requirement for prescription in South
African law.188
180
See the discussion of postponement in section 2.3.4 below.
181
In this sense property also includes incorporeal property, such as shares. See, for instance, the cases of
Minnaar v Rautenbach [1999] 1 All SA 571 (NC) and Albert and Others v Ragaven 1966 (2) SA 454 (D),
which dealt with the prescription of shares in immovable property.
182
As mentioned in chapter one, this dissertation does not purport to discuss the acquisition and extinction of
servitudes through prescription. The aim is to only focus on the requirements for the acquisition of servitudes
through prescription to the extent that they overlap with and help clarify the requirements for acquiring real
rights through prescription. The Court in Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another
1972 (2) SA 464 (W) 468 found that the requirements for the acquisition of property and servitudes through
prescription are basically the same.
183
Section 2(1) of the Prescription Act 18 of 1943.
184
These requirements are discussed in sections 2.3.2.2-2.3.2.4 below.
185
Hall CG Maasdorps Institutes of South African Law Volume II The Law of Property (10th ed 1976) 80.
Regarding prescription against the state, see the discussion in section 2.3.6 below.
186
Through operation of law.
187
188
Pienaar v Rabie 1983 (3) SA 126 (A) 138 139. For a more complete discussion in this regard, see section 4.2
of chapter four below.
37
Although not explicitly mentioned in the 1943 Act, the adverse user189 requirement has come
to be accepted through case law as a supplementary requirement for prescription.190 In
this sense it is not possible for a person to acquire prescriptive title to property already
owned.191 Regarding the doctrine of notice, the Supreme Court of Appeal found that it does
not apply to rights acquired through prescription, since prescription is one of the original
methods of acquisition of ownership.192
The 1943 Act did not codify South African prescription law, a fact clearly illustrated by a
strong body of case law.193 This position is confirmed by the fact that the 1943 Act provides
that it only repeals common law rules that are inconsistent with it.194 Common law rules that
are consistent with the Act thus remain in force. Although the 1969 Act is silent on this issue,
the courts have held that the position remains the same.195
According to section 1 of the 1969 Prescription Act, a person acquires ownership over
property that has been
possessed openly and as if he were the owner thereof for an uninterrupted period of thirty
years or for a period which, together with any periods for which such thing was so possessed
by his predecessors in title, constitutes an uninterrupted period of thirty years.
Regarding acquisitive prescription specifically, the similarities between the two prescription
acts are indeed remarkable.196 The 1969 Act also states that servitudes can be acquired
through prescription if the person making use of the servitude has done so openly and as
189
Also referred to as adverse possession. This must not be confused with what is referred to in English law as
adverse possession, which is what South African law knows as acquisitive prescription. For a discussion of
adverse possession in English law, see section 3.2.2.3 of chapter three below.
190
Malan v Nabygelegen Estates 1946 AD 562 574. See further section 2.3.2.4 below.
191
Ploughmann NO v Pauw and Another 2006 (6) SA 334 (C) para 39; Ex Parte Puppli 1975 (3) SA 461 (D)
463.
192
See Cillie v Geldenhuys 2009 (2) SA 325 (SCA) para 13 and Ex Parte Puppli 1975 (3) SA 461 (D) 464,
where it was found that the acquisition of real rights through prescription does not depend on registration in the
deeds office. See also Marx FE Eiendomsverkryging deur Verjaring en Beperkte Saaklike Regte (1994) 15
Obiter 161-171 162.
193
See Pienaar v Rabie 1983 (3) SA 126 (A) 135; Bisschop v Stafford 1974 (3) SA 1 (A) 7; Morkels Transport
(Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 467; Albert Falls Power Co (Pty) Ltd v
Goge 1960 (2) SA 46 (N) 47 and Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (A) 604, where this position is
confirmed. In its preamble, the Act mentions that it aims only to amend and consolidate the laws relating to
prescription, thus not resulting in a codification of prescription law.
194
Section 15(1) of the Prescription Act 18 of 1943. See also Morkels Transport (Pty) Ltd v Melrose Foods
(Pty) Ltd and Another 1972 (2) SA 464 (W) 467.
195
I extrapolate this from the cases mentioned in footnote 193 above. See also Sonnekus JC & Neels JL Sakereg
Vonnisbundel (2nd ed 1994) 309.
196
This fact was acknowledged by the Supreme Court of Appeal in Cillie v Geldenhuys 2009 (2) SA 325 (SCA)
para 8.
38
though he were entitled to do so.197 The greatest difference, it would seem, is the omission of
the nec vi and nec precario requirements from the 1969 Act.198 Unlike the 1943 Act, the 1969
Act specifically regulates coniunctio temporum. Despite this, it was already held in
Stephenson v Lamsley199 that coniunctio temporum was possible under the 1943 Act, since
this was not regarded as one of the cases where the legislator intended to depart from the
common law.200 That decision was followed ever since.201 This phenomenon, also known as
successio in possessionem or accessio possessionis, came to us from Roman-Dutch law and
entails that possession for the purposes of prescription need not have been held by one
person only.202 It allows the aggregation of periods of possession by successors in title in
order to meet the 30-year requirement.203 A derivative link must exist between the
predecessor and successor in title, and the circumstances of either succession or contract are
applicable.204 Furthermore, each possessor in the chain of legal predecessors and successors
should have had the correct mental attitude regarding the possession of the property.205 If one
of the legal predecessors or successors did not satisfy all the requirements for prescription, the
running of prescription would be interrupted.206 Furthermore, the two prescription acts
specifically state that courts may not mero motu take notice of prescription; it must be pleaded
by the parties.207
In addition, the 1969 Act specifically regulates interruption and postponement of

prescription,208 while the 1943 Act is silent on this issue. Under the 1943 Act, resort had to be
had to the common law concerning these issues. If one sets out the requirements for
prescription under the two prescription acts, the following similarities are discernable:
197
198
These requirements are discussed in sections 2.3.2.2 and 2.3.2.4 respectively below.
199
1948 (4) SA 794 (W) 796 797.
200
Minnaar v Rautenbach [1999] 1 All SA 571 (NC) 574; Van Wyk and Another v Louw and Another 1958 (2)
SA 164 (C) 172; Stephenson v Lamsley 1948 (4) SA 794 (W) 796-797.
201
Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 467; Van Wyk and
Another v Louw and Another 1958 (2) SA 164 (C) 172.
202
Voet 44.3.9; Van Wyk and Another v Louw and Another 1958 (2) SA 164 (C) 172; Stephenson v Lamsley
1948 (4) SA 794 (W) 796.
203
Hiemstra VG & Gonin HL Trilingual Legal Dictionary (3rd ed 2006) 149.
204
Van der Merwe CG (with Pope A) Property in Du Bois F (ed) Willes Principles of South African Law (9th
ed 2007) 405-665 514; Carey Miller DL & Pope A Land Title in South Africa (2000) 178; Sonnekus JC & Neels
JL Sakereg Vonnisbundel (2nd ed 1994) 312; De Wet JC Opuscula Miscellanea (1979) 90.
205
Forellendam Bpk v Jacobsbaai Coastal Farms (Pty) Ltd 1993 (4) SA 138 (C) 140. See also Carey Miller DL
& Pope A Land Title in South Africa (2000) 178; Van der Merwe CG Sakereg (2nd ed 1989) 282.
206
For a discussion on the difficulties of proving coniunctio temporum, see Robertson S The Difficulty of
Proving the Essentials of Acquisitive Prescription (2000) 63 Tydskrif vir Hedendaagse Romeins-Hollandse Reg
158-161 161.
207
Section 14 of the Prescription Act 18 of 1943 and section 17 of the Prescription Act 68 of 1969.
208
Sections 2-4 of the Prescription Act 68 of 1969.
39
i) possession (or use, in the case of acquiring limited real rights);

ii) openness (nec clam);
iii) possession as if owner (this clearly corresponds to the animus domini element of
possessio civilis, together with a mixture of the earlier nec precario and adverse
user requirements);209 and
iv) continuous possession for 30 years.210
2.3.2 The requirements for acquisitive prescription in modern South African law
2.3.2.1 Possession
The type of possession required for prescription is not defined in the 1943 Act.211 The 1969
Act is slightly clearer in this regard, stipulating that the possessor needs to possess openly
and as if he were the owner.212 The answer regarding possession, therefore, has to be found
in the common law. In this context the South African courts have consistently held that the
required form of possession is that mentioned by Voet, namely possessio civilis or civil
possession.213 The courts have also held that the successive prescription acts in no way alter
this position, as this was not a case where the common law is inconsistent with the acts.214
209
The animus domini requirement is discussed in section 2.3.2.1.1 below. The as if owner, nec precario and
adverse user requirements are discussed together in section 2.3.2.4 below, where it is shown that these
requirements all inherently form part of the animus domini element of possessio civilis.
210
See Carey Miller DL & Pope A Land Title in South Africa (2000) 160, where a similar breakdown is
followed.
211
See Welgemoed v Coetzer and Others 1946 TPD 701 710, where it was held that the 1943 Act did not alter
the common law position regarding the type of possession required for prescription.
212
Section 1 of the Prescription Act 68 of 1969. The as if owner requirement clearly corresponds to the
animus domini element of possessio civilis.
213
Also known as full juristic possession: See Voet 41.2.1, 41.2.3. This is confirmed in case law: See Sapphire
Dawn Trading 42 BK v De Klerk and Others (693/2008) [2009] ZAFSHC 11 (12 February 2009) paras 8-9;
Cillie v Geldenhuys 2009 (2) SA 325 (SCA) para 8; Joles Eiendom (Pty) Ltd v Kruger and Another 2007 (5) SA
222 (C) para 28; Pienaar v Rabie 1983 (3) SA 126 (A) 134; Wood v Baynesfield Board of Administration 1975
(2) SA 692 (N) 697; Bisschop v Stafford 1974 (3) SA 1 (A) 8; Barker NO v Chadwick and Others 1974 (1) SA
461 (D) 465; Glaston House (Pty) Ltd v Cape Town Municipality 1973 (4) SA 276 (C) 281; Morkels Transport
(Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 474; Campbell v Pietermaritzburg City
Council 1966 (2) SA 674 (N) 677; Albert Falls Power Co (Pty) Ltd v Goge 1960 (2) SA 46 (N) 48; Hayes v
Harding Town Board and Another 1958 (2) SA 297 (N) 299; Welgemoed v Coetzer and Others 1946 TPD
701 712. See further Sonnekus JC & Neels JL Sakereg Vonnisbundel (2nd ed 1994) 311; Van der Merwe CG
Sakereg (2nd ed 1989) 275; Hall CG Maasdorps Institutes of South African Law Volume II The Law of
Property (10th ed 1976) 77.
214
Sapphire Dawn Trading 42 BK v De Klerk and Others (693/2008) [2009] ZAFSHC 11 (12 February 2009)
para 9; Minnaar v Rautenbach [1999] 1 All SA 571 (NC) 574-575; Glaston House (Pty) Ltd v Cape Town
Municipality 1973 (4) SA 276 (C) 281; Welgemoed v Coetzer and Others 1946 TPD 701 710-711.
40
Therefore, the position regarding the type of possession required for prescription before and
after 1970 is the same.215
Possessio civilis consists of two elements, namely the animus domini (mental) and corpus
(physical) elements.216 Both the mental state and the physical act of detention must coincide
for possession to qualify as possessio civilis.217
2.3.2.1.1 The animus domini requirement

The animus domini element218 entails that a possessor needs to possess the property with the
intention of an owner, or, in the words of the 1969 Act, as if [he were] owner.219 The courts
have made it clear that anything less than animus domini, ie the limited possessio naturalis220
of a lessee or usufructuary, detentio,221 commodatarium222 or exercising a servitude over a
servient tenement, is ineffective and does not satisfy this requirement, since all of these fall
short of the intention of possessing the property as owner.223 However, this does not entail
215
para 9; Minnaar v Rautenbach [1999] 1 All SA 571 (NC) 574-575; Glaston House (Pty) Ltd v Cape Town
Municipality 1973 (4) SA 276 (C) 281. See also Van der Merwe CG Sakereg (2nd ed 1989) 280.
216
Carey Miller DL & Pope A Land Title in South Africa (2000) 160-161.
217
Voet 41.2.10; Glaston House (Pty) Ltd v Cape Town Municipality 1973 (4) SA 276 (C) 281; Morkels
Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 474; Welgemoed v Coetzer
and Others 1946 TPD 701 712. See also Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoemans
The Law of Property (5th ed 2006) 162.
218
Also referred to as the animus sibi habendi or the intention of possession for oneself: Voet 44.3.9; Wood v
Baynesfield Board of Administration 1975 (2) SA 692 (N) 701; Hayes v Harding Town Board and Another 1958
(2) SA 297 (N) 299; Welgemoed v Coetzer and Others 1946 TPD 701 712-713. See also Badenhorst PJ, Pienaar
JM & Mostert H Silberberg and Schoemans The Law of Property (5th ed 2006) 162 footnote 254. Some of the
older cases refer to the animus domini as the as of right requirement, see for instance Morkels Transport (Pty)
Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 476.
219
Section 1 of the Prescription Act 68 of 1969. See further Voet 44.3.9; Wood v Baynesfield Board of
Administration 1975 (2) SA 692 (N) 701; Hayes v Harding Town Board and another 1958 (2) SA 297 (N) 299;
Welgemoed v Coetzer and Others 1946 TPD 701 712-713. See also Badenhorst PJ, Pienaar JM & Mostert H
Silberberg and Schoemans The Law of Property (5th ed 2006) 162 and Van der Merwe CG Sakereg (2nd ed
1989) 275. In Bisschop v Stafford 1974 (3) SA 1 (A) 5, Jansen JA describes animus domini as the intention to
act adversely to the owners rights. Regarding the similarities between animus domini and the adverse user
requirement, see the discussion in section 2.3.2.4 below.
220
Mere or natural possession, according to Hiemstra VG & Gonin HL Trilingual Legal Dictionary (3rd ed
2006) 256-257.
221
Detention of a thing, according to Hiemstra VG & Gonin HL Trilingual Legal Dictionary (3rd ed 2006)
177.
222
One to whom something is entrusted, according to Hiemstra VG & Gonin HL Trilingual Legal Dictionary
(3rd ed 2006) 165.
223
Joles Eiendom (Pty) Ltd v Kruger and Another 2007 (5) SA 222 (C) para 30; Wood v Baynesfield Board of
Administration 1975 (2) SA 692 (N) 702; Glaston House (Pty) Ltd v Cape Town Municipality 1973 (4) SA 276
(C) 281; Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 474; Hayes
v Harding Town Board and Another 1958 (2) SA 297 (N) 299; Welgemoed v Coetzer and Others 1946 TPD
41
that the possessor needs to possess with the belief that he is the owner; all that is required is
that the possessor intends to keep the property as if he is the owner.224 Therefore, the
necessary animus is present in scenarios where the possessor mistakenly believes that he is
the owner (bona fide) and even in situations where he knows (mala fide) that he is not the
owner.225 In this sense it has been decided that even in cases where the plaintiff, or his
predecessors in title, realise that they are in fact not owners of the property, this will not
negate the adverse user of the property.226 This is because the Roman law requirements of
bona fides227 and iustus titulus228 no longer form part of South African prescription law.229
Therefore, it is possible for mala fides to co-exist with the necessary animus domini.230
Strictly speaking, it is even possible for a thief to possess (movable) property with the animus
domini, although it is unlikely that he will succeed in practice with a case based on
prescription, as the thief might be unable to satisfy the openness requirement.231
If the possessor recognises the rights of the owner, for instance by asking him whether he (the
possessor) may lease or buy the property, possession will immediately cease to be animo
domini.232 This will be the case even if such an acknowledgment is not followed by any
701 712-713. This position is in line with Roman-Dutch law as described by Grotius Inleidinge 2.2.3: See
section 2.2.3 above.
224
Ploughmann NO v Pauw and Another 2006 (6) SA 334 (C) para 36; Minnaar v Rautenbach [1999] 1 All SA
571 (NC) 577; Bisschop v Stafford 1974 (3) SA 1 (A) 9 7, 10; Pienaar v Rabie 1983 (3) SA 126 (A) 137;
Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 474; Campbell v
Pietermaritzburg City Council 1966 (2) SA 674 (N) 680. See also Marx FE Verkrygende Verjaring in die Suid-
Afrikaanse Reg (1994) 265 and Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoemans The Law of
Property (5th ed 2006) 162.
225
Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 474; Campbell v
Pietermaritzburg City Council 1966 (2) SA 674 (N) 680. See also Badenhorst PJ, Pienaar JM & Mostert H
Silberberg and Schoemans The Law of Property (5th ed 2006) 160-161.
226
Wood v Baynesfield Board of Administration 1975 (2) SA 692 (N) 701; Campbell v Pietermaritzburg City
Council 1966 (2) SA 674 (N) 680. In this sense I agree with the Campbell decision by equating adverse user
to possessio civilis, and thus to the animus domini: See the discussion in this regard in section 2.3.2.4 below.
227
Good faith.
228
Just title.
229
Voet 44.3.344.3.9
230
Voet 41.2.3; Minnaar v Rautenbach [1999] 1 All SA 571 (NC) 577; Morkels Transport (Pty) Ltd v Melrose
Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 474; Welgemoed v Coetzer and Others 1946 TPD 701 711.
See also Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 268 and Van der Merwe CG
Sakereg (2nd ed 1989) 275. As to the desirability of this position, see Van der Walt AJ Property in the Margins
(2009) 173-174. Section 4.5 of chapter four below specifically focuses the anomaly of the mala fide possessor.
231
Minnaar v Rautenbach [1999] 1 All SA 571 (NC) 577; Morkels Transport (Pty) Ltd v Melrose Foods (Pty)
Ltd and Another 1972 (2) SA 464 (W) 474. See also Van der Merwe CG (with Pope A) Property in Du Bois F
(ed) Willes Principles of South African Law (9th ed 2007) 405-665 512; Badenhorst PJ, Pienaar JM & Mostert
H Silberberg and Schoemans The Law of Property (5th ed 2006) 165; Van der Merwe CG Sakereg (2nd ed 1989)
275. For examples of scenarios involving animus domini, see Morkels Transport (Pty) Ltd v Melrose Foods
(Pty) Ltd and Another 1972 (2) SA 464 (W) 475.
232
Voet 44.3.9; Sapphire Dawn Trading 42 BK v De Klerk and Others (693/2008) [2009] ZAFSHC 11 (12
February 2009) para 9; Minister van Landbou v Sonnendecker 1979 (2) SA 944 (A) 945; Wood v Baynesfield
42
permission (precarium), expressed or implied, from the side of the owner.233 Uncertainty
exists surrounding the question of which acts by the possessor amount to an acknowledgment
of the owners rights in the property.234 According to an obiter dictum by Broome JP in Payn
v Estate Rennie and Another,235 the mere mental recognition or acknowledgment by the
claimant does not suffice to terminate the animus domini.236 According to the judge, it only
operates as a bar if the state of mind is accompanied by some overt act.237 This approach is
founded on sound principles, as it is impossible to determine the mental attitude or intention
with which a person possesses property if there is no outward manifestation of such
intention.238 Thus, the courts look at all the surrounding circumstances and evidence to
determine whether a possessor is holding property animo domini.239 In this regard Miller J
in Campbell v Pietermaritzburg City Council240 said that it is safer, by far, to rely on the
Board of Administration 1975 (2) SA 692 (N) 698; Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and
Another 1972 (2) SA 464 (W) 467, 477; Campbell v Pietermaritzburg City Council 1966 (2) SA 674 (N) 680;
Pratt v Lourens 1954 (4) SA 281 (N) 282; Malan v Nabygelegen Estates 1946 AD 562. In this regard, see
Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoemans The Law of Property (5th ed 2006) 162,
where the authors state that an acknowledgment of the owners right and a willingness to give up possession if
the owner should enforce his or her right before the period of prescription has been completed, should not per se
be inconsistent with the animus domini requirement. It is doubtful whether this statement is correct, as it is
clear from the main text, as well as from the authorities quoted, that an acknowledgment of the owners rights
will negate the animus domini. Nevertheless, this area of South African law is not free from uncertainty or
difficulty.
233
Pratt v Lourens 1954 (4) SA 281 (N) 282. For a more detailed discussion regarding precarium, see section
2.3.2.4 below.
234
See Joles Eiendom (Pty) Ltd v Kruger and Another 2007 (5) SA 222 (C) para 37, where the Court preferred
to leave this question open. De Wet JC Opuscula Miscellanea (1979) 93-94 is of the opinion that a mere
informal (verbygaande) acknowledgment of the owners rights should not suffice in terminating the running
of prescription. However, he qualifies this by stating that if the informal acknowledgment should be followed by
a factual situation where the possessor no longer possess as owner, such as a lessee, then the running of
prescription will be terminated. To much the same effect is Van der Merwe CG Sakereg (2nd ed 1989) 281 and
Van der Merwe CG Original Acquisition of Ownership in Zimmermann R & Visser D (eds) Southern Cross
Civil Law and Common Law in South Africa (1996) 701-717 713, where he mentions that a mere
acknowledgment of the owners rights will not succeed to terminate the running of prescription. According to
him at 281, this will only happen if the acknowledgment is followed by a duidelik waarneembare berusting or
a clearly discernable acceptance of the owners rights. Henckert HG Die Animus Domini-vereiste by Verjaring
(1986) 5 Responsa Meridiana 138-142 is also of this view.
235
1960 (4) SA 261 (N).
236
Payn v Estate Rennie and Another 1960 (4) SA 261 (N) 262-263.
237
Payn v Estate Rennie and Another 1960 (4) SA 261 (N) 262-263.
238
Here I am of the same mind as Van der Merwe CG Sakereg (2nd ed 1989) 281, who argues that the mere
acknowledgment of the owners rights, which does not constitute clear outward acknowledgment, will not
negate the animus domini. See also Henckert HG Die Animus Domini-vereiste by Verjaring (1986) 5
Responsa Meridiana 138-142 139.
239
para 9.
240
1966 (2) SA 674 (N).
43
external manifestations of [the possessors] state of mind than on his own clumsy attempts at
verbal reconstruction of his state of mind many years ago.241
Unfortunately, the Appellate Division of the Supreme Court242 as it then was

unnecessarily complicated matters with its decision in Minister of Landbou v
Sonnendecker. 243 In an obiter dictum by Rumpff CJ, the Court mentioned the possibility that
a possessor could possess property as if owner, even though he knew it belonged to another
person and was willing to return possession to the owner, should such owner arrive and claim
the property.244 This part of the decision attracted criticism, and rightly so.245 According to
Marx, the animus domini requirement is not satisfied if one holds property with the intention
of becoming owner.246 As seen above, it is possible to hold property with the necessary
animus domini247 even if a person realises that he is not owner. Yet, the animus domini will
probably be terminated should a possessor be willing to hand over the property once the
owner arrives at the scene. In this regard the willingness of the possessor to hand over the
property must be clearly discernable from his conduct.248 Nonetheless, Rumpff CJ preferred
not to answer this question, since it was not relevant to the case and thus the matter remains
open.249 As mentioned, the possessors mental attitude must be deduced from physical
manifestations, as it is impossible to look into the mind of another. Thus, the possessors state
of mind depends on the circumstances.250 As to the question whether the animus domini will
241
Campbell v Pietermaritzburg City Council 1966 (2) SA 674 (N) 679. See also Wood v Baynesfield Board of
Administration 1975 (2) SA 692 (N) 701 and Smith and Others v Martins Executor Dative (1899) 16 SC 148
148-151.
242
Since 1996 known as the Supreme Court of Appeal: See section 166(b) of the Constitution.
243
1979 (2) SA 944 (A).
244
Minister van Landbou v Sonnendecker 1979 (2) SA 944 (A) 947.
245
Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoemans The Law of Property (5th ed 2006) 162-
163 contend that this obiter dictum by Rumpff CJ is correct. However, Van der Merwe CG Sakereg (2nd ed
1989) 281 and Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 237 differ, since they think
that this state of affairs is unacceptable. Of the same view is Carey Miller DL & Pope A Land Title in South
Africa (2000) 174. I agree with Van der Merwe, Marx, Carey Miller and Pope, should it be possible to clearly
discern the possessors state of mind from his conduct.
246
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 237. See also Van der Merwe CG
Original Acquisition of Ownership in Zimmermann R & Visser D (eds) Southern Cross Civil Law and
Common Law in South Africa (1996) 701-717 715.
247
Here I equate as if owner with the animus domini requirement. This topic is further discussed in section
2.3.2.4 below.
248
As stated by Miller J in Campbell v Pietermaritzburg City Council 1966 (2) SA 674 (N) 679: [I]t is safer, by
far, to rely on the external manifestations of [the possessors] state of mind than on his own clumsy attempts at
verbal reconstruction of his state of mind many years ago.
249
Minister van Landbou v Sonnendecker 1979 (2) SA 944 (A) 947.
250
For an interesting instance in this regard, see the discussion of Sapphire Dawn Trading 42 BK v De Klerk
and Others (693/2008) [2009] ZAFSHC 11 (12 February 2009) in the next paragraph.
44
be terminated through recognition vis--vis the owner or vis--vis his representative, South
African law is unclear.251
An interesting argument regarding the animus domini arose in Sapphire Dawn Trading 42 BK
v De Klerk and Others,252 where the third respondent claimed to have acquired certain
property through prescription. The plaintiff objected and stated that the third respondent
acknowledged the rights of the owner. The third respondent replied that he only recognised
the owners rights after the 30-year period had already expired, since he was unaware of the
fact that he had already acquired the property through prescription. The Court rejected this
argument:
Die probleem hiermee is egter dat die derde respondent se optrede n verloop van die termyn
onteenseglik dui op die gesindheid waarmee hy tot dan toe sy besit op daardie stadium
uitgeoefen het. Sy optrede strook bloot eenvoudig net met n erkenning van die oorledene [the
owner] se eiendomsreg op die eiendom en dit alleen is fataal vir sy aanspraak op verkrygende
verjaring.253
2.3.2.1.2 The corpus requirement

One has to carefully scrutinise whether the possessors actions satisfy the corpus
requirement,254 which actions must be judged objectively with specific regard to the
circumstances.255 An example of conduct that is prima facie construed as the necessary
corpus is when the possessor makes permanent improvements to the claimed property, such
as by building on land or fencing it.256 Then again, it has been decided that the paying of rates
concerning certain immovable property serves merely as an indication of the possessors
mental attitude toward the property and does not in itself amount to a physical holding or
251
Payn v Estate Rennie and Another 1960 (4) SA 261 (N) 263.
252
(693/2008) [2009] ZAFSHC 11 (12 February 2009).
253
para 9. (The problem with this is that the third respondents actions, after the expiration of the prescription
period, undeniably illustrate the mental attitude with which he possessed the property up until that stage. His
actions simply boil down to an acknowledgment of the ownership of the deceased [owner] over the property and
that alone is fatal for his allegation of acquisitive prescription.)
254
The physical requirement.
255
Carey Miller DL & Pope A Land Title in South Africa (2000) 161.
256
Joles Eiendom (Pty) Ltd v Kruger and Another 2007 (5) SA 222 (C) para 31; Van Wyk and Another v Louw
and Another 1958 (2) SA 164 (C) 170. See also Hall CG Maasdorps Institutes of South African Law Volume II
The Law of Property (10th ed 1976) 78. See further Glaston House (Pty) Ltd v Cape Town Municipality 1973
(4) SA 276 (C), where the Court held that the building of a stoep that protrudes onto a public road is sufficient to
amount to adverse user, which also constitutes the necessary animus domini and corpus. For a discussion
concerning the similarities between adverse user and animus domini, see section 2.3.2.4 below.
45
detention of the property.257 In some cases, grazing on its own may constitute the necessary
corpus, but one will have to look at the specific land as well as the degree of grazing to
establish this.258 Consequently, regard must be had to the context to determine whether the
plaintiffs actions necessarily constitute corpus.
It is not required that every part or area of the property be occupied or used to constitute
corpus, as this is sometimes simply impractical.259 The test is whether there was such use of
a part or parts of the ground as amounts, for practical purposes, to possession of the
whole.260 In this regard much depends on the nature of the property and the type of use or
possession to which it is put.261 In other words, the possessor must use the property to a
certain degree to meet the required physical possession. Total and exclusive physical
possession is, therefore, not required. In Joles Eiendom (Pty) Ltd v Kruger and Another,262
the Court held that the mere fact that the owner and/or his employees had occasional access
to the property concerned did not, in itself, detract from the possessors effective control of it,
nor did it serve to interrupt prescription.263 Clearly, there is not a numerus clausus of forms of
physical possession that may constitute the necessary corpus.
Corbett J made the following remark concerning the question of satisfying the corpus
requirement through an agent:
257
Hayes v Harding Town Board and Another 1958 (2) SA 297 (N) 299; Minister van Lande v Swart en Andere
1957 (3) SA 508 (C) 511. See also Carey Miller DL & Pope A Land Title in South Africa (2000) 172.
258
See, for instance, Van Wyk and Another v Louw and Another 1958 (2) SA 164 (C). See also Minister van
Lande v Swart en Andere 1957 (3) SA 508 (C) 511, where the Court held that mere grazing was not enough to
constitute corpus. According to Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoemans The Law of
Property (5th ed 2006) 163, the acts of the possessor must be in accordance with his animus domini before he
will succeed in a claim based on prescription. If only the necessary intention is present, without sufficient
corpus from which to deduce the intention, the possessor will not be able to succeed with his claim. However,
the possessor may still be able to acquire something less than ownership, such as a grazing servitude, depending
on the circumstances and the form of physical possession.
259
Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 467; Van Wyk and
Another v Louw and Another 1958 (2) SA 164 (C) 170; Minister of Forestry v Michaux 1957 (2) SA 32 (N) 39;
Welgemoed v Coetzer and Others 1946 TPD 701 720; Smith and Others v Martins Executor Dative (1899) 16
SC 148-151. See also Carey Miller DL & Pope A Land Title in South Africa (2000) 162; Sonnekus JC & Neels
JL Sakereg Vonnisbundel (2nd ed 1994) 311.
260
Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 468. See also
Welgemoed v Coetzer and Others 1946 TPD 701 720.
261
Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 468; Mocke v
Beaufort West Municipality 1939 CPD 135 142; Boshoff and Another v Reinhold and Co 1920 AD 29 33.
262
2007 (5) SA 222 (C). The part of this decision that dealt with the question of prescription was confirmed by
the Supreme Court of Appeal in Kruger v Joles Eiendomme (Pty) Ltd and Another 2009 (3) SA 5 (SCA) para
13.
263
Joles Eiendom (Pty) Ltd v Kruger and another 2007 (5) SA 222 (C) para 29.
46
Where a person erects or acquires a building which wholly or partially encroaches upon the
land of another, then, in my opinion, he legally possesses the land taken up by the encroachment
irrespective of whether he occupies the building himself or whether he lets it to someone else.
The soundness of this proposition is clearly demonstrated by the case where the encroachment
is not a stoep, as in the present instance, but a room forming part of the building. Could it ever
be said that the owner of the building did not exercise legal possession of the land upon which
the room was built merely because the building as a whole was let to the tenant? 264
This argument illustrates that it is possible to satisfy the corpus requirement by possessing
property through another, ie through an agent, such as when a landlord exercises possession
through his tenant.265 In such a case one has to comply with the requirements laid down by
the law of agency, which may be summarised as follows:
i) the agents intention must be to acquire possession not for himself but on behalf of
the possessor (principal);
ii) the possessor (principal) must have the intention of acquiring possession over the
property concerned; and
iii) a juridical relation must exist between the possessor (principal) and the agent, ie
there must be an order or a commission that precedes the acquisition.266
Prescription only commences in favour of the principal from the moment he becomes aware
that the agent has indeed taken control of the property.267 If the agent should acknowledge the
rights of the owner, the animus domini will also be terminated.268 However, in such a case
one has to determine whether the agent acted within the scope of his authority.269
The onus rests on the person that claims prescription to prove uninterrupted possession, as
well as the other requirements.270 Although the courts will carefully scrutinise the evidence
264
Glaston House (Pty) Ltd v Cape Town Municipality 1973 (4) SA 276 (C) 282.
265
Grotius Inleidinge 2.2.4; Voet 41.2.12; Forellendam Bpk v Jacobsbaai Coastal Farms (Pty) Ltd 1993 (4) SA
138 (C) 140-142; Glaston House (Pty) Ltd v Cape Town Municipality 1973 (4) SA 276 (C) 282; Van Wyk and
Another v Louw and Another 1958 (2) SA 164 (C) 171.
266
Welgemoed v Coetzer and Others 1946 TPD 701 714.
267
Welgemoed v Coetzer and Others 1946 TPD 701 714. See also Badenhorst PJ, Pienaar JM & Mostert H
Silberberg and Schoemans The Law of Property (5th ed 2006) 163.
268
Pratt v Lourens 1954 (4) SA 281 (N) 282. In this case the Court referred to the termination of the adverse
possession. This case is included in this discussion for practical purposes, since I argue that there are few
material differences between the concepts of adverse user and possessio civilis. This topic is discussed in section
2.3.2.4 below.
269
For an example of this sort, see Pratt v Lourens 1954 (4) SA 281 (N).
270
Minnaar v Rautenbach [1999] 1 All SA 571 (NC) 575; Wood v Baynesfield Board of Administration 1975
(2) SA 692 (N) 698; Bisschop v Stafford 1974 (3) SA 1 (A) 6 9; Morkels Transport (Pty) Ltd v Melrose Foods
(Pty) Ltd and Another 1972 (2) SA 464 (W) 469; Du Toit and Others v Furstenberg and Others 1957 (1) SA
501 (O) 503; City of Cape Town v Abelsohns Estate 1947 (3) SA 315 (C) 326; Welgemoed v Coetzer and
Others 1946 TPD 701 720; Smith and Others v Martins Executor Dative (1899) 16 SC 148 148-151.
47
before depriving a person of property due to the effects of prescription, the burden of proof is
still that of a civil case, namely on a balance of probabilities.271
It is, of course, also possible to satisfy the corpus requirement by possessing the property as
co-possessor. Yet, what should happen if one possessor doesnt meet all the requirements for
prescription, while the other possessor does? The answer is that the failure of one co-
possessor to successfully assert ownership of property through prescription does not in itself
result in the failure of a claim for prescription by the other co-possessor.272
In pleadings it must be averred that the claimants possession was possessio civilis, as mere
assertion of possession will not be sufficient to find a case for prescription.273 This is because
the term possession, used without qualification, has a wide connotation, which can mean
anything from possessio civilis to mere detentio, and therefore it must be qualified.274 In
cases concerning co-owners, it is also possible for one co-owner to acquire the joint property
through prescription.275 Under these circumstances the claimant has to prove that he
appropriated the whole property and enjoyed the exclusive use of it adversely to the other co-
owner(s) before he can satisfy the corpus requirement.276
It is worth emphasising that in some cases the argument was put forward that prescription
could be presumed on the basis of vetustas. 277 Vetustas can be understood as a presumption
based on immemorial use.278 The difference between prescription and vetustas is as follows:
when prescription is proved, it creates a legal situation, as opposed to vetustas, which only
raises a rebuttable presumption.279 Vetustas merely creates a rebuttable presumption in favour
271
Du Toit and Others v Furstenberg and Others 1957 (1) SA 501 (O) 503; Minister of Forestry v Michaux
1957 (2) SA 32 (N) 39; Welgemoed v Coetzer and Others 1946 TPD 701 720.
272
Ploughmann NO v Pauw and Another 2006 (6) SA 334 (C) para 72; Barker NO v Chadwick and Others 1974
(1) SA 461 (D) 465.
273
Albert Falls Power Co (Pty) Ltd v Goge 1960 (2) SA 46 (N) 48.
274
Jansen J in Albert Falls Power Co (Pty) Ltd v Goge 1960 (2) SA 46 (N) 48.
275
Albert and Others v Ragaven 1966 (2) SA 454 (D); Payn v Estate Rennie and Another 1960 (4) SA 261 (N).
276
Albert and Others v Ragaven 1966 (2) SA 454 (D) 455; Payn v Estate Rennie and Another 1960 (4) SA 261
(N) 262.
277
Forellendam Bpk v Jacobsbaai Coastal Farms (Pty) Ltd 1993 (4) SA 138 (C); Bisschop v Stafford 1974 (3)
SA 1 (A); De Beer v Van der Merwe 1923 AD 378.
278
Hiemstra VG & Gonin HL Trilingual Legal Dictionary (3rd ed 2006) 305.
279
De Beer v Van der Merwe 1923 AD 378 383.
48
of the existence of public rights.280 As this is the difference, it has been held that it is not
possible to support a claim for prescription on the basis of vetustas.281
The possession of the property must be uninterrupted for the full 30-year period. This does
not mean that absolute continuity of occupation is required, as long as there is no substantial
interruption during the prescription period.282 It will be sufficient if the right is exercised
from time to time as occasion requires and with reasonable continuity.283 The requirement of
continuity must relate not only to the possessors animus domini and his corpus, but also to
the other elements required for prescription, for example the nec vi, nec clam and nec
precario requirements of the 1943 Act.284 To constitute a cause of action, it is important that
the plaintiffs cause of action must exist at the time the proceedings begin, or, in other words,
the 30 years must already have elapsed when summons was issued or served.285 If the
possessor satisfies all the requirements for prescription, he becomes owner of the property the
moment the 30-year period expires.286 In the case of immovable property, the rights in the
land pass to the possessor even without registration, after which he may demand that the land
be registered in his name.287
2.3.2.2 Nec vi
The nec vi requirement obliges the possessor to possess the property without force, or
peaceably.288 This requirement does, however, not entail that the acquisition of possession
needs to be without force; it only requires that the continued possession of the property must
280
Forellendam Bpk v Jacobsbaai Coastal Farms (Pty) Ltd 1993 (4) SA 138 (C) 143. See also Van der Merwe
CG Sakereg (2nd ed 1989) 547.
281
Forellendam Bpk v Jacobsbaai Coastal Farms (Pty) Ltd 1993 (4) SA 138 (C) 143-144; Bisschop v Stafford
1974 (3) SA 1 (A) 4; De Beer v Van der Merwe 1923 AD 378 383-384.
282
Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 468; Minister of
Forestry v Michaux 1957 (2) SA 32 (N) 39; Welgemoed v Coetzer and Others 1946 TPD 701 720. See also
Carey Miller DL & Pope A Land Title in South Africa (2000) 176.
283
Van Wyk and Another v Louw and Another 1958 (2) SA 164 (C) 170; Minister of Forestry v Michaux 1957
(2) SA 32 (N) 39; Welgemoed v Coetzer and Others 1946 TPD 701 720
284
Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoemans The Law of Property (5th ed 2006) 169.
285
Van Wyk and Another v Louw and Another 1958 (2) SA 164 (C) 169.
286
Section 2(2) of the Prescription Act 18 of 1943 and section 1 of the Prescription Act 68 of 1969.
287
See Du Toit and Others v Furstenberg and Others 1957 (1) SA 501 (O). See also Sonnekus JC Die Rei
Vindicatio en Verjaring Of Nie 2010 Tydskrif vir die Suid-Afrikaanse Reg 576-590 578; Sonnekus JC Sub
Hasta-veilings en die Onderskeid tussen Afgeleide en Oorspronklike Wyses van Regsverkryging 2008 Tydskrif
vir die Suid-Afrikaanse Reg 696-727 698.
288
Wood v Baynesfield Board of Administration 1975 (2) SA 692 (N) 697; Bisschop v Stafford 1974 (3) SA 1
(A) 8; Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 468.
49
be without force.289 The 1969 Act omits nec vi, which may seem to imply that property
retained by force can now also be acquired through prescription. However, many authors290
state that the omission of the nec vi requirement is of little practical relevance, since forceful
possession of property is unlikely to be consistent with the animus domini requirement.291
Furthermore, the fact that the possessor has to possess the property continuously for 30 years
also eliminates the possibility of acquiring ownership through forceful possession, as it is
highly unlikely that someone will be able to forcefully maintain possession over property for
the entire 30-year period.292
As regards illegal possession, one needs to distinguish between two scenarios, namely (i)
where the possessors possession is illegal simply because it is without the owners consent
(ie unlawful possession), and (ii) where it is illegal irrespective of such consent due to
statutory restrictions (ie in contravention of the law).293 If property is held without the
consent of the owner, such possession is nec precario.294 The act of possession is then merely
unlawful, since there is no entitlement to possession.295 Concerning the second instance, if the
law forbids even the owner to use the property in the way used by the possessor, then a case
for prescription cannot succeed.296 Yet, if the possessor exercises rights of a wider scope than
those forbidden by law, then he is able to acquire those rights through prescription. There
may also be cases in which the possession relied on, though attended by illegal acts, can be
regarded as separable from the illegality for purposes of prescription.297 Thus, an owner must
289
Sonnekus JC & Neels JL Sakereg Vonnisbundel (2nd ed 1994) 312; Van der Merwe CG Sakereg (2nd ed 1989)
275.
290
Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoemans The Law of Property (5th ed 2006) 165;
Carey Miller DL & Pope A Land Title in South Africa (2000) 168; Sonnekus JC & Neels JL Sakereg
Vonnisbundel (2nd ed 1994) 312-313; Van der Merwe CG Sakereg (2nd ed 1989) 275-276.
291
Carey Miller DL & Pope A Land Title in South Africa (2000) 168; Van der Merwe CG Sakereg (2nd ed 1989)
275.
292
275-276; De Wet JC Opuscula Miscellanea (1979) 87.
293
Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (A) 604-605.
294
Campbell v Pietermaritzburg City Council 1966 (2) SA 674 (N) 681.
295
Campbell v Pietermaritzburg City Council 1966 (2) SA 674 (N) 681. See also Mostert H & Pope A (eds) The
Principles of the Law of Property in South Africa (2010) 181.
296
Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (A) 605. For a good example, see Swanepoel v Crown Mines
Ltd 1954 (4) SA 596 (A), where legislation effectively took away control of the ground from the owner and
vested it in the mining authorities. The claimant was not able to possess the property adversely vis--vis the
owner due to the illegality of his possession and, thus, his claim for prescription failed. See also Mostert H &
Pope A (eds) The Principles of the Law of Property in South Africa (2010) 181.
297
Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (A) 605. See also Badenhorst PJ, Pienaar JM & Mostert H
Silberberg and Schoemans The Law of Property (5th ed 2006) 166.
50
have the right to prevent the possessor from possessing the property.298 It follows that if an
owner is unable to prevent the possessor from occupying the property, then prescription
cannot run in favour of such possessor.299
2.3.2.3 Nec clam

The nec clam requirement entails that possession be open300 and was retained as one of the
requirements for prescription in the 1969 Act.301 Carey Miller and Pope describe the rationale
behind this requirement as follows:
There are two reasons why possession must be open rather than secret or clandestine. First, in
that prescription is justified by the impression created by outward appearances, in the world at
large, it stands to reason that the exercise of rights must be patent: without this the element of
publicity could not be satisfied. Secondly, from the owners point of view, the security of
ownership entitles an owner to leave his or her property and it would be unfair to expect him or
her to take steps to recover possession maintained secretly by another.302
Occupation is open even without actual knowledge on the part of the owner, as long as the
possession is open for all to see who want to see, including the owner.303 Stated differently,
the possession must be open vis--vis the general public, as well as vis--vis the owner.304 The
possession must be so open that an owner, exercising reasonable care, would have observed
it.305 To determine openness is a matter of considering the evidence before the Court. As with
the nec vi requirement, nec clam does not require that possession of property must have been
298
Joles Eiendom (Pty) Ltd v Kruger and Another 2007 (5) SA 222 (C) para 26; Minnaar v Rautenbach [1999]
1 All SA 571 (NC) 577; Barker NO v Chadwick and Others 1974 (1) SA 461 (D) 466; Morkels Transport (Pty)
Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 479; Swanepoel v Crown Mines Ltd 1954 (4)
SA 596 (A) 606.
299
Joles Eiendom (Pty) Ltd v Kruger and Another 2007 (5) SA 222 (C) para 26.
300
Bisschop v Stafford 1974 (3) SA 1 (A) 8; Ex Parte Puppli 1975 (3) SA 461 (D) 463.
301
De Wet JC Opuscula Miscellanea (1979) 86-87.
302
Carey Miller DL & Pope A Land Title in South Africa (2000) 164, quoted with approval in Ploughmann NO
v Pauw and Another 2006 (6) SA 334 (C) para 59.
303
Bisschop v Stafford 1974 (3) SA 1 (A) 7; Van Wyk and Another v Louw and Another 1958 (2) SA 164 (C)
170; Minister of Forestry v Michaux 1957 (2) SA 32 (N) 39; Welgemoed v Coetzer and Others 1946 TPD 701
720.
304
Bisschop v Stafford 1974 (3) SA 1 (A) 8; Welgemoed v Coetzer and Others 1946 TPD 701 723; De Beer v
Van der Merwe 1923 AD 378; Smith and Others v Martins Executor Dative (1899) 16 SC 148 148-151. See
also Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoemans The Law of Property (5th ed 2006)
165. Van der Merwe CG Sakereg (2nd ed 1989) 277 and Van der Merwe CG (with Pope A) Property in Du
Bois F (ed) Willes Principles of South African Law (9th ed 2007) 405-665 512 differ from this approach and
states that the possession need only be open vis--vis the public. There is merit in this argument, as it is clear
that actual knowledge of the possessors actions on the part of the owner is not required for purposes of
prescription.
305
Wood v Baynesfield Board of Administration 1975 (2) SA 692 (N) 697; Ex Parte Puppli 1975 (3) SA 461 (D)
463; Bisschop v Stafford 1974 (3) SA 1 (A) 8; Welgemoed v Coetzer and Others 1946 TPD 701 721; Smith and
Others v Martins Executor Dative (1899) 16 SC 148 148-151.
51
obtained openly; only the continued possession needs to be open.306 Van der Merwe questions
whether the nec clam requirement is in fact not inherently part of the required form of
possession (possessio civilis) and, therefore, redundant.307 This is indeed the case in Dutch
and French law, where openness is regarded as an inherent element of possession.308
2.3.2.4 Nec precario, adverse user and as if owner

There has been quite a significant development surrounding the nec precario requirement in
South African prescription law. Therefore, a brief discussion of the historical development
concerning the ambit of this requirement is necessary to obtain clarity. Until 1923 the South
African courts have interpreted the nec precario widely, in such a way that it included the
concept of adverse user.309 In De Beer v Van der Merwe,310 the Appellate Division of the
Supreme Court held as follows in the context of prescription: [T]he right must have been
non precario or as it is alleged in our modern pleadings, the right must have been exercised
adversely and as of right.311 The Court elaborated on the previous by finding that [w]hen
the owner of the dominant tenement is also lessee of the servient tenement, the former has
not, by diverting the water on to the latter tenement, done so adversely and as of right, but
precario.312 By equating a lease contract to a precarium, it follows that adverse user was
once regarded by the Appellate Division of the Supreme Court as forming part of the nec
precario requirement.313 I argue that this wide interpretation of nec precario is legally
unsound, since a precarium is not an overarching concept that includes contracts such as a
lease.314 I return to this issue in the next few paragraphs. Nonetheless, this wide interpretation
was abandoned in Malan v Nabygelegen Estates, 315 where the same Appellate Division of the
306
Carey Miller DL & Pope A Land Title in South Africa (2000) 164; Van der Merwe CG Sakereg (2nd ed 1989)
277.
307
Van der Merwe CG Sakereg (2nd ed 1989) 277. See also Marx FE Verkrygende Verjaring in die Suid-
Afrikaanse Reg (1994) 180. To the contrary are Carey Miller DL & Pope A Land Title in South Africa (2000)
166 and De Wet JC Opuscula Miscellanea (1979) 86-87.
308
See section 3.3.2.2.1 for Dutch law and section 3.4.2.1 for French law in chapter three below.
309
De Beer v Van der Merwe 1923 AD 378 384. This chapter argues that adverse user was wrongly incorporated
into South African prescription law, as it merely constitutes part of the possessio civilis requirement. Hence me
placing included in inverted commas. This issue is discussed in the next few paragraphs.
310
1923 AD 378.
311
312
313
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 183 supports this view. Adverse user is
discussed in the next few paragraphs.
314
Reinsma M Adverse User of Adverse Possession (1969) 32 Tydskrif vir Hedendaagse Romeins-
Hollandse Reg 293-298 295. Van der Merwe CG Sakereg (2nd ed 1989) 278 opines that the wide interpretation
of nec precario renders this requirement unusable (onbruikbaar).
315
1946 AD 562.
52
Supreme Court opted for the narrow interpretation of nec precario, an approach followed in
subsequent cases.316 In this decision, Watermeyer CJ described nec precario as follows:
[A] precarium is the legal relationship which exists between parties when one party has the use
or occupation of property belonging to the other on sufferance, by the leave and licence of the
other. Its essential characteristic is that the permission to use or occupy is revocable at the will
of the person granting it.317
This obiter dictum establishes that a precarium is a bilateral legal relationship,318 where the
grantor agrees (consents) that the grantee may exercise possession over the property
concerned, which consent is revocable at the will of the grantor. While the grantee enjoys the
precarium from the grantor, he has the ius possidendi to control the property, and through
this he (continuously) acknowledges the ownership of the grantor.319 Thus, a precarium is
something of which the use is granted at the request of the grantee for as long as the grantor
is willing to allow him to have it.320 Nec precario, therefore, postulates the absence of such a
grant or request.321 Nec precario may also be understood as meaning not by virtue of a
precarious consent, not by virtue of a revocable permission or not on sufferance.322 The
onus rests on the person claiming prescription to prove that neither he nor his predecessors in
title held the property precario, or (in other words) that they held it nec precario throughout
the prescription period.323
Concerning the nature of a precarium, as seen above, a person holds something precariously
when he holds it on sufferance or by virtue of permission that is revocable at the will of the
grantor.324 A precarium may be of two kinds, namely:
316
See for instance Bisschop v Stafford 1974 (3) SA 1 (A) 8 and Wood v Baynesfield Board of Administration
1975 (2) SA 692 (N) 697, where this departure is confirmed.
317
Malan v Nabygelegen Estates 1946 AD 562 573.
318
City of Cape Town v Abelsohns Estate 1947 (3) SA 315 (C) 327; Campbell v Pietermaritzburg City Council
1966 (2) SA 674 (N) 681.
319
Sonnekus JC & Neels JL Sakereg Vonnisbundel (2nd ed 1994) 313.
320
Wood v Baynesfield Board of Administration 1975 (2) SA 692 (N) 697. See also Van der Merwe CG Sakereg
(2nd ed 1989) 278.
321
Bisschop v Stafford 1974 (3) SA 1 (A) 8.
322
Du Toit and Others v Furstenberg and Others 1957 (1) SA 501 (O) 503; Albert Falls Power Co (Pty) Ltd v
Goge 1960 (2) SA 46 (N) 48; Malan v Nabygelegen Estates 1946 AD 562 574.
323
Cillie v Geldenhuys 2009 (2) SA 325 (SCA) para 8; Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd
and Another 1972 (2) SA 464 (W) 470. Robertson S The Difficulty of Proving the Essentials of Acquisitive
Prescription (2000) 63 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 158-161 underlines the difficulty of
proving the absence of a precarium.
324
(A) 8; Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 470; Malan v
Nabygelegen Estates 1946 AD 562 573.
53
i) in the nature of the concession of a servitude; or

ii) it may be a precarium proper, described by the authorities as tot wederzeggens
toe.325
If a precarium is present, the possessors claim for prescription will fail.326 For possession to
be precario, it is essential that some sort of permission should have been given to the
possessor by the owner, as mere acquiescence by the owner will not suffice.327 The
permission (precarium) may be granted either expressly or tacitly.328
City of Cape Town v Abelsohns Estate329 dealt with the question whether a precarium given
to one person would automatically attach to the possession of his successors in title.
According to this case, the mere fact that a person occupied property by virtue of a precarium
does not in itself mean that his predecessors in title also hold the property precariously.330
The nature and scope of the precarious right depends on the intention of the parties when the
precarium was granted, which has to be decided on the evidence.331 As mentioned above, a
precarium may be granted either expressly or tacitly.332 Normally, a personal concession
terminates at the grantees death, and his legal successors only occupy precario if there was a
tacit re-grant of the concession to them.333 Such tacit re-grant, being a bilateral relationship,
only arises if both parties had knowledge of the situation; the position would then be that the
grantor tacitly intended and the occupier tacitly recognised that continuous occupation would
be precario.334 Interestingly enough, the Court in Abelsohn held in an obiter dictum that it
may be possible to presume the tacit extension of precarium in the circumstances of certain
325
Tot wederzeggens toe may be understood as until I revoke or until I say differently: See City of Cape
Town v Abelsohns Estate 1947 (3) SA 315 (C) 326; Texas Co (SA) Ltd v Cape Town Municipality 1926 AD
467 499.
326
para 6.
327
Malan v Nabygelegen Estates 1946 AD 562 576-577; Pratt v Lourens 1954 (4) SA 281 (N) 282. See also
Van der Merwe CG Sakereg (2nd ed 1989) 278.
328
(A) 8; Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 470; Malan v
Nabygelegen Estates 1946 AD 562 573.
329
1947 (3) SA 315 (C).
330
City of Cape Town v Abelsohns Estate 1947 (3) SA 315 (C) 326.
331
Voet 8.4.18; City of Cape Town v Abelsohns Estate 1947 (3) SA 315 (C) 326.
332
Voet 43.26.1; Bisschop v Stafford 1974 (3) SA 1 (A) 8; City of Cape Town v Abelsohns Estate 1947 (3) SA
315 (C) 327. See also Van der Merwe CG Sakereg (2nd ed 1989) 278.
333
City of Cape Town v Abelsohns Estate 1947 (3) SA 315 (C) 327.
334
City of Cape Town v Abelsohns Estate 1947 (3) SA 315 (C) 327-328; Campbell v Pietermaritzburg City
Council 1966 (2) SA 674 (N) 681. For an extensive discussion of the nec precario requirement, see City of Cape
Town v Abelsohns Estate 1947 (3) SA 315 (C).
54
types of precario when there is an absence of evidence for the party averring
prescription.335
It must be emphasised that a contract, such as one allowing someone to lease property or to
exercise a servitude, does not constitute revocable permission granted by one person to
another.336 For instance, if a possessor exercises rights in property in terms of a contract, he
exercises those rights as of right and not by virtue of consent in the sense of revocable
permission (precarium).337 The reason why prescription does not run in favour of the
possessor in this context is because the possessor due to the presence of the contract does
not possess the property animo domini. Such possession merely amounts to the limited
possessio naturalis,338 which falls short of the intention of possessing as owner.339 This is
why the wide approach adopted in De Beer v Van der Merwe,340 where the Court held that
rights performed in terms of a contract are exercised precariously, is legally unsound.
However, the fact that possession originated in contract does not necessarily preclude the
acquisition of property through prescription.341 For instance, if the possessor exercises rights
pertaining to the property that falls outside those granted by the contract such as drawing
water from a fountain in the context of a lease contract not permitting such drawing of water
it is possible to acquire such right as a servitude through prescription.342 If the possessor
had no right to take water from a fountain on the property in terms of the lease contract, such
335
City of Cape Town v Abelsohns Estate 1947 (3) SA 315 (C) 328-329: It may be that, in the circumstances
of certain types of precario, the absence of evidence by the person, who claims a prescriptive title as to the
terms under which he occupies, the tacit extension of the precarium to cover his occupation may be presumed.
336
Malan v Nabygelegen Estates 1946 AD 562 576-577; Du Toit and Others v Furstenberg and Others 1957 (1)
SA 501 (O) 504.
337
Malan v Nabygelegen Estates 1946 AD 562 576-577; Du Toit and Others v Furstenberg and Others 1957 (1)
SA 501 (O) 504.
338
Mere or natural possession, according to Hiemstra VG & Gonin HL Trilingual Legal Dictionary (3rd ed
2006) 256-257.
339
701 712-713. See also Reinsma M Adverse User of Adverse Possession (1969) 32 Tydskrif vir
Hedendaagse Romeins-Hollandse Reg 293-298 295. This was also the position in Roman-Dutch law as
described by Grotius Inleidinge 2.2.3: See section 2.2.3 above.
340
1923 AD 378.
341
Malan v Nabygelegen Estates 1946 AD 562 574; Du Toit and Others v Furstenberg and Others 1957 (1) SA
501 (O) 504.
342
Malan v Nabygelegen Estates 1946 AD 562 574; Du Toit and Others v Furstenberg and Others 1957 (1) SA
501 (O) 504. The example of drawing water from a fountain is based on the facts of Malan v Nabygelegen
Estates 1946 AD 562.
55
an act will in the absence of a grant or precarium to that effect be performed nec
precario. 343
The nec precario requirement has, like the nec vi requirement, also been omitted from the
1969 Act. Even so, the fact that the type of possession required for prescription is possessio
civilis probably makes this requirement superfluous, since holding property precariously is
clearly inconsistent with the animus domini.344 This position is strengthened by the fact that
the 1969 Act merely requires the possessor to possess the property openly and as if he were
the owner, the latter requirement clearly being similar to the animus domini element of
possessio civilis. 345 Furthermore, the Court in Campbell v Pietermaritzburg City Council346
held that [if] the court is satisfied that possession was nec precario ... it will also have been
civilis possessio [and thus animus domini].347
Although adverse user does not appear as a requirement in either the 1943 or 1969 Act, it has
been viewed as constituting a supplementary requirement for prescription since the decision
of Pratt v Lourens348 in 1954.349 One observes this position from the authoritative decision of
Malan v Nabygelegen Estates, 350 where the Appellate Division of the Supreme Court held as
follows:
In order to avoid misunderstanding, it should be pointed out here that mere occupation of
property nec vi, nec clam, nec precario for a period of thirty years does not necessarily vest in
the occupier a prescriptive title to the ownership of that property. In order to create a
prescriptive title, such occupation must be a user adverse to the true owner and not occupation
343
Malan v Nabygelegen Estates 1946 AD 562 577.
344
Vonnisbundel (2nd ed 1994) 313; Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 276-277;
Van der Merwe CG Sakereg (2nd ed 1989) 278. To the same effect is Campbell v Pietermaritzburg City Council
1966 (2) SA 674 (N) 680.
345
Mostert H & Pope A (eds) The Principles of the Law of Property in South Africa (2010) 180-181; Badenhorst
PJ, Pienaar JM & Mostert H Silberberg and Schoemans The Law of Property (5th ed 2006) 162; Carey Miller
DL & Pope A Land Title in South Africa (2000) 164-165, 169-170; Robertson S The Difficulty of Proving the
Essentials of Acquisitive Prescription (2000) 63 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 158-
161 158; Sonnekus JC & Neels JL Sakereg Vonnisbundel (2nd ed 1994) 311; Van der Merwe CG Sakereg (2nd ed
1989) 280; Henckert HG Die Animus Domini-vereiste by Verjaring (1986) 5 Responsa Meridiana 138-
142 138. This point is discussed in greater detail in the next few paragraphs.
346
1966 (2) SA 674 (N).
347
Campbell v Pietermaritzburg City Council 1966 (2) SA 674 (N) 680. See also Bisschop v Stafford 1974 (3)
SA 1 (A) 8-9, where the Court held that the requirements of nec precario, adverse user and possessio civilis are
synonymous.
348
1954 (4) SA 281 (N).
349
Pratt v Lourens 1954 (4) SA 281 (N) 282. See also Van der Merwe CG Sakereg (2nd ed 1989) 279.
350
1946 AD 562.
56
by virtue of some contract or legal relationship such as lease or usufruct which recognises the
ownership of another.351
This position has subsequently been followed in many cases regarding prescription.352 As
seen from the above quotation, the essence of adverse user is that the possessor must use or
possess the property without recognising the rights of the owner.353 Accordingly, one can
regard adverse user as meaning the use and enjoyment of a thing without molestation by,
and in conflict with the rights of, the owner thereof.354 Therefore, the possessor must possess
the property adversely vis--vis the owner, as possessing the property adversely toward a
non-owner does not suffice.355 In this light, Sonnekus and Neels describe adverse user as a
strydige daad.356 Recognition occurs when the possessor has a legal relationship with the
owner, such as a lease, where the possessor implicitly acknowledges the ownership of the
owner. In this context the Appellate Division of the Supreme Court in Swanepoel v Crown
Mines Ltd357 confirmed that adverse user precludes lessees and usufructuaries from acquiring
property through prescription.358 According to the Court, it is inconceivable that the Act
could have intended that these persons should become owner after possessing the property
continuously for 30 years.359 Although this conclusion is legally sound, it is doubtful whether
the additional requirement of adverse user is at all necessary to achieve this purpose in South
African law. This is because lessees, usufructuaries, detentors and persons who exercise
servitudes are in any event precluded from acquiring ownership through prescription, since
they by having mere possessio naturalis lack the requisite animus domini.360
351
Malan v Nabygelegen Estates 1946 AD 562 574. This approach was followed in Albert Falls Power Co (Pty)
Ltd v Goge 1960 (2) SA 46 (N) 47 and Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (A) 604.
352
See for instance Wood v Baynesfield Board of Administration 1975 (2) SA 692 (N) 697; Barker NO v
Chadwick and Others 1974 (1) SA 461 (D) 465; Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and
Another 1972 (2) SA 464 (W) 467; Hayes v Harding Town Board and Another 1958 (2) SA 297 (N) 299;
Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (A) 604; City of Cape Town v Abelsohns Estate 1947 (3) SA
315 (C) 326; Malan v Nabygelegen Estates 1946 AD 562 574.
353
This is also a feature of the animus domini requirement: See the discussion in section 2.3.2.1.1 above.
354
Payn v Estate Rennie and Another 1960 (4) SA 261 (N) 262. See similarly Wood v Baynesfield Board of
Administration 1975 (2) SA 692 (N) 697; Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another
1972 (2) SA 464 (W) 480.
355
Wood v Baynesfield Board of Administration 1975 (2) SA 692 (N) 702-703; Morkels Transport (Pty) Ltd v
Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 477; Hayes v Harding Town Board and Another
1958 (2) SA 297 (N) 299.
356
Sonnekus JC & Neels JL Sakereg Vonnisbundel (2nd ed 1994) 313. (An act that is in conflict with the rights
of the owner.)
357
1954 (4) SA 596 (A).
358
Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (A) 604.
359
Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (A) 604.
360
57
Consequently, a debate exists over whether adverse user indeed constitutes an independent
requirement for prescription or whether it simply forms part of possessio civilis. 361 It is
mostly accepted before and after 1954 that adverse user is not an additional requirement,
but merely an element of possessio civilis.362 This view finds support in Campbell v
Pietermaritzburg City Council, 363 where the Court held adverse user and possessio civilis to
be synonymous.364 Scholtens is of the opinion that to add adverse user to the as if owner
requirement as an additional requirement only leads to confusion.365 In any event, it is
doubtful whether the concept of adverse user should ever have entered South African
prescription law, as it contains elements of the English law rule of adverse possession, which
greatly differs from acquisitive prescription.366 Be that as it may, this issue is largely made
redundant by the as if owner requirement of the 1969 Act.367 Nonetheless, Van der Merwe
is of the opinion that adverse user can still be a useful factor to determine whether a person
had the requisite animus domini, even though it does not constitute an independent
requirement.368
701 712-713. This position is in line with Roman-Dutch law as described by Grotius Inleidinge 2.2.3: See
361
Van der Walt AJ Property in the Margins (2009) 172 footnote 7; Sonnekus JC & Neels JL Sakereg
Vonnisbundel (2nd ed 1994) 313; Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 193, 275;
Van der Merwe CG Sakereg (2nd ed 1989) 279-280; De Wet JC Opuscula Miscellanea (1979) 85 and cases
cited. See also Carey Miller DL & Pope A Land Title in South Africa (2000) 165-166, where adverse user is
regarded as correlative to the animus domini requirement.
362
Bisschop v Stafford 1974 (3) SA 1 (A) 8-9; Albert Falls Power Co (Pty) Ltd v Goge 1960 (2) SA 46 (N) 48
(per Jansen J); Malan v Nabygelegen Estates 1946 AD 562 574. See also Carey Miller DL & Pope A Land Title
in South Africa (2000) 165-166; Sonnekus JC & Neels JL Sakereg Vonnisbundel (2nd ed 1994) 313-314; Van der
Merwe CG Sakereg (2nd ed 1989) 279-280; Henckert HG Die Animus Domini-vereiste by Verjaring (1986) 5
Responsa Meridiana 138-142 138; Scholtens JE Praescriptio Jus Possidendi and Rei Vindicatio (1972) 89
South African Law Journal 383-395 384; Reinsma M Adverse User of Adverse Possession (1969) 32
Tydskrif vir Hedendaagse Romeins-Hollandse Reg 293-298 295. To the same effect is Marx FE Verkrygende
Verjaring in die Suid-Afrikaanse Reg (1994) 193, 197, 273-275.
363
1966 (2) SA 674 (N).
364
Campbell v Pietermaritzburg City Council 1966 (2) SA 674 (N) 680. See also Wicks and Others v Place NO
1967 (1) SA 561 (E) 567. The Court held in Bisschop v Stafford 1974 (3) SA 1 (A) 8-9 that nec precario,
adverse user and possessio civilis are synonymous.
365
Scholtens JE Praescriptio Jus Possidendi and Rei Vindicatio (1972) 89 South African Law Journal 383-
395 384. De Wet JC Opuscula Miscellanea (1979) 86 and Reinsma M Adverse User of Adverse
Possession (1969) 32 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 293-298 298 are to the same effect.
Sonnekus JC & Neels JL Sakereg Vonnisbundel (2nd ed 1994) 314 think that adverse user is embodied in the as
if owner requirement.
366
Of the same opinion are Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 275; De Wet JC
Opuscula Miscellanea (1979) 86 and Reinsma M Adverse User of Adverse Possession (1969) 32 Tydskrif
vir Hedendaagse Romeins-Hollandse Reg 293-298 294-295. Adverse possession in English law is discussed in
section 3.2.2.3 of chapter three below.
367
I address this issue in the next few paragraphs.
368
Van der Merwe CG Sakereg (2nd ed 1989) 280. Carey Miller DL & Pope A Land Title in South Africa (2000)
165 and Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 275 are of the same mind.
58
The as if owner requirement was introduced for the first time by the 1969 Act, on
suggestion from De Wet, the so-called father of this Act.369 This requirement bears a
striking resemblance to the animus domini element and, thus, to possessio civilis. Indeed, the
as if owner requirement does not in any way differ from possessio civilis, 370 a view
confirmed in case law.371 The post-30 November 2000 prescription cases illustrate an
interesting trend in this context. These cases tend to discuss the 1969 Act requirements for
prescription with reference to the terminology introduced under the previous Act.372 In most
of these cases, the courts still discuss and use the nec precario and adverse user requirements
to determine whether the possessor complied with the as if owner requirement.373 This
approach is in line with the view that some of the older requirements, such as adverse user,
can still play a useful role to establish whether a person holds property animo domini.374
As indicated above, the nec precario requirement is rendered superfluous by requiring a

person to possess property possessio civilis for purposes of prescription.375 As to adverse
user, it has been shown that also this requirement is made redundant by the possessio civilis
369
See section 1 of the Prescription Act 68 of 1969 and De Wet JC Opuscula Miscellanea (1979) 85-86. With
regard to the acquisition of servitudes, section 6 of the Prescription Act 68 of 1969 requires the user to exercise
his use openly and as though he were entitled to do so. Clearly, there is no material difference between the
requirements for the acquisition of property or servitudes through acquisitive prescription.
370
Mostert H & Pope A (eds) The Principles of the Law of Property in South Africa (2010) 180-181; Badenhorst
PJ, Pienaar JM & Mostert H Silberberg and Schoemans The Law of Property (5th ed 2006) 162; Carey Miller
DL & Pope A Land Title in South Africa (2000) 164-165, 169-170; Robertson S The Difficulty of Proving the
Essentials of Acquisitive Prescription (2000) 63 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 158-
161 158; Sonnekus JC & Neels JL Sakereg Vonnisbundel (2nd ed 1994) 311; Van der Merwe CG Sakereg (2nd ed
1989) 280; Henckert HG Die Animus Domini-vereiste by Verjaring (1986) 5 Responsa Meridiana 138-142
138.
371
Cillie v Geldenhuys 2009 (2) SA 325 (SCA) para 8; Sapphire Dawn Trading 42 BK v De Klerk and Others
(693/2008) [2009] ZAFSHC 11 (12 February 2009) paras 7, 9; Joles Eiendom (Pty) Ltd v Kruger and Another
2007 (5) SA 222 (C) para 28; Minnaar v Rautenbach [1999] 1 All SA 571 (NC) 574-575.
372
Prescription Act 18 of 1943. See especially Sapphire Dawn Trading 42 BK v De Klerk and Others
(693/2008) [2009] ZAFSHC 11 (12 February 2009); Cillie v Geldenhuys 2009 (2) SA 325 (SCA); Joles
Eiendom (Pty) Ltd v Kruger and Another 2007 (5) SA 222 (C); Ploughmann NO v Pauw and Another 2006 (6)
SA 334 (C); Minnaar v Rautenbach [1999] 1 All SA 571 (NC).
373
See the cases referred to in the previous footnote.
374
Van der Merwe CG Sakereg (2nd ed 1989) 280; Carey Miller DL & Pope A Land Title in South Africa (2000)
165-166; Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 275.
375
Vonnisbundel (2nd ed 1994) 313; Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 276-277;
Van der Merwe CG Sakereg (2nd ed 1989) 278-279. To the same effect is Campbell v Pietermaritzburg City
Council 1966 (2) SA 674 (N) 680. Van der Merwe CG Sakereg (2nd ed 1989) 278-279 is of the opinion that the
nec precario requirement is redundant, since it can be seen as simply forming part of the animus domini and as
if owner requirements.
59
requirement.376 In this context it is illuminating to quote the following passage from

Campbell v Pietermaritzburg City Council:377
[I]f the Court is sati[s]fied that there was possessio civilis ... it is superfluous to inquire further
whether there was adverse user and that if, on the other hand, the Court is satisfied that
possession was nec precario and adverse to the owner's rights, it will also have been civilis
possessio.378
Since the as if owner requirement is the same as possessio civilis, it can be safely deduced
that the as if owner requirement encapsulates both the nec precario and adverse user
requirements.
2.3.3 Interruption of acquisitive prescription

Concerning interruption it is necessary to distinguish once more between the law as it stood
prior to and after 30 November 1970. The 1943 Act does not specifically regulate
interruption, which means that one must rely on the common law in this regard. Interruption
of prescription ensues when a specific event occurs that terminates the running of the
prescription, causing the 30-year period to start running de novo.379 A distinction is drawn
between two types of interruption, namely (i) natural interruption and (ii) civil interruption.380
Natural interruption entails that the possessor loses possession of the property either by
giving it up voluntarily or by having it taken from him forcibly, namely by the owner, another
person or by vis maior. 381 Mere protest by the owner is not enough; the possessors
possession must be terminated.382
376
Bisschop v Stafford 1974 (3) SA 1 (A) 8-9; Albert Falls Power Co (Pty) Ltd v Goge 1960 (2) SA 46 (N) 48
(per Jansen J); Malan v Nabygelegen Estates 1946 AD 562 574. See also Badenhorst PJ, Pienaar JM & Mostert
H Silberberg and Schoemans The Law of Property (5th ed 2006) 167; Carey Miller DL & Pope A Land Title in
South Africa (2000) 165-166; Sonnekus JC & Neels JL Sakereg Vonnisbundel (2nd ed 1994) 313-314; Van der
Merwe CG Sakereg (2nd ed 1989) 279-280; Henckert HG Die Animus Domini-vereiste by Verjaring (1986) 5
Responsa Meridiana 138-142 138; Scholtens JE Praescriptio Jus Possidendi and Rei Vindicatio (1972) 89
South African Law Journal 383-395 384; Reinsma M Adverse User of Adverse Possession (1969) 32
Tydskrif vir Hedendaagse Romeins-Hollandse Reg 293-298 295. To the same effect is Marx FE Verkrygende
Verjaring in die Suid-Afrikaanse Reg (1994) 193, 197, 273-275.
377
1966 (2) SA 674 (N).
378
Campbell v Pietermaritzburg City Council 1966 (2) SA 674 (N) 680. See also Bisschop v Stafford 1974 (3)
SA 1 (A) 8-9 and Wicks and Others v Place NO 1967 (1) SA 561 (E) 567.
379
Voet 41.3.17; Van der Merwe CG (with Pope A) Property in Du Bois F (ed) Willes Principles of South
African Law (9th ed 2007) 405-665 514.
380
Voet 41.3.17.
381
Such as war or flooding: See Van der Merwe CG (with Pope A) Property in Du Bois F (ed) Willes
Principles of South African Law (9th ed 2007) 405-665 514-515; Van der Merwe CG Sakereg (2nd ed 1989) 282-
283.
382
ed 2007) 405-665 515; Van der Merwe CG Sakereg (2nd ed 1989) 283.
60
Civil interruption occurs by the serving of a process (warrant, notice of motion, interdict) in
which the owners claim to ownership is clearly stated to the possessor.383 Thus, a mere claim
for rent or compensation because of unlawful occupation does not suffice. The prescription
period is also interrupted if the possessor acknowledges the rights of the owner.384 This is in
line with the adverse user requirement, which requires the possessor to possess the property
in conflict with the rights of the owner of the property.385 In Joles Eiendom (Pty) Ltd v
Kruger and Another, 386 the Court found that if the owner and/or his employees had
occasional access to the property, this did not interrupt prescription.387
The 1969 Act, as opposed to its 1943 counterpart, expressly regulates interruption.388
According to the 1969 Act, the running of prescription is judicially (civilly) interrupted by
the service of a process389 on the possessor, whereby the owner claims ownership of the
property.390 However, any interruption in terms of section 4(1) shall lapse and the running
of prescription be deemed to not have been interrupted if the person claiming ownership
does not successfully prosecute the claim under the process in question to final judgment, or
if he does prosecute the claim but abandons the judgment or if the judgment is set aside.391
Should prescription be interrupted,392 a new period of prescription shall commence to run if
at all only on the day on which final judgment is given.393 In accordance with the advice of
De Wet,394 the legislator included an exception to the normal working of interruption by
providing that the running of prescription shall not be interrupted by involuntary loss of
383
Section 4(1)-(4) of the Prescription Act 68 of 1969. See also Sonnekus JC & Neels JL Sakereg Vonnisbundel
(2nd ed 1994) 314.
384
Joles Eiendom (Pty) Ltd v Kruger and Another 2007 (5) SA 222 (C) para 37. For a discussion regarding
which acts by the possessor amounts to an acknowledgment, see the discussion under the animus domini
element in section 2.3.2.1.1 above.
385
Wood v Baynesfield Board of Administration 1975 (2) SA 692 (N) 697; Morkels Transport (Pty) Ltd v
Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 480; Payn v Estate Rennie and Another 1960 (4) SA
261 (N) 262. The adverse user requirement is discussed in section 2.3.2.4 above.
386
2007 (5) SA 222 (C).
387
Joles Eiendom (Pty) Ltd v Kruger and Another 2007 (5) SA 222 (C) para 29.
388
389
According to section 4(4), this includes a petition, notice of motion, rule nisi and any document whereby
legal proceedings are commenced. See for instance Ploughmann NO v Pauw and Another 2006 (6) SA 334 (C)
para 40, where the Court confirmed that the running of prescription is interrupted by the service of a notice of
motion for evicting the possessor.
390
391
392
As contemplated in section 4(1) of the Prescription Act 68 of 1969.
393
394
De Wet JC Opuscula Miscellanea (1979) 88-89.
61
possession,395 should possession be regained at any time through legal proceedings instituted
within six months after the loss for the purpose of regaining possession, or if possession is
regained in any other lawful way within one year of the loss of possession.396 This approach
is similar to the position in Dutch prescription law.397 As with the 1943 Act, voluntary loss of
possession also interrupts prescription under the 1969 Act.
2.3.4 Postponement of acquisitive prescription398

As with interruption, the 1943 Act does not provide for the postponement of prescription
either. Accordingly, one must again rely on the common law in this context.399 Postponement
is based on the principle of contra non valentem agere non currit praescriptio,400 which
entails that prescription does not run against persons without the capacity to act. According to
the common law, this group includes:
i) minors;
ii) insane persons;
iii) persons under curatorship;
iv) persons who were absent due to service to the state or by reason of war;
v) married women subject to their husbands marital power;
vi) fideicommisarii pending the fulfilment of the condition of the fideicommissum,
where the fideicommissary property was alienated by a fiduciarius who did not
have the power to do so; and
vii) generally those who were prevented from enforcing their rights.401
As soon as the impending situation or event falls away, the running of prescription continues
for the remainder of the 30-year period.402 For instance, if a person possessed immovable
395
Such as war or flooding.
396
397
See sections 3.3.2.3.1-3.3.2.3.2 of chapter three below.
398
Also known as suspension or delay.
399
This position was confirmed in Estate Dambuza v Estate Mcikwa 1946 NPD 94 98.
400
Prescription does not run against a party who cannot take action.: See Hiemstra VG & Gonin HL
Trilingual Legal Dictionary (3rd ed 2006) 169. See also Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd
and Another 1972 (2) SA 464 (W) 479.
401
Voet 44.3.9; Estate Dambuza v Estate Mcikwa 1946 NPD 94 98. See also Van der Merwe CG (with Pope A)
Property in Du Bois F (ed) Willes Principles of South African Law (9th ed 2007) 405-665 515; Badenhorst PJ,
Pienaar JM & Mostert H Silberberg and Schoemans The Law of Property (5th ed 2006) 171; Sonnekus JC &
Neels JL Sakereg Vonnisbundel (2nd ed 1994) 316.
62
property for 20 years and the owner then suddenly became insane, prescription would not run
against him. In other words, the running of prescription is postponed until he regains the
capacity to act. Only then will the running of prescription continue for the remainder of the
30-year period.
The 1969 Act altered the common law position by specifically regulating the issue of
postponement.403 In this regard the 1969 Act refers to two specific groups of people, the first
being those against whom prescription is running404 and the second being those in favour of
whom prescription is running.405 The former group includes persons who are minors, insane,
under curatorship or are prevented by vis maior406 from interrupting the running of
prescription.407 The second group includes persons who are outside the Republic of South
Africa, married to the person against whom prescription is running or are members of the
governing body of a juristic person against whom prescription is running.408 The 1969 Act
provides for a unique chain of events, should a person fall into one of the mentioned groups.
Should the prescription period have been completed, but for the impediment mentioned
above, before or on, or within three years after the day on which the relevant impediment has
fallen away, the prescription period shall not be completed before the expiration of three
years after the postponing impediment has fallen away.409 An example will clarify this
situation: In the case of prescription running against a minor, if the prescription period would
have been completed before or on the day the minor came of age, the prescription period
shall have to run for an additional three years after the minor come of age before it is
completed. Furthermore, should the prescription period have been completed within three
years following the termination of the impediment (the day the minor comes of age), the
completion will also be postponed for three years from the date the impediment fell away.410
In this sense the 1969 Act provides that the period of prescription in relation to
fideicommissary property shall not be completed against a fideicommissarius before the
402
285-286.
403
Section 3 of the Prescription Act 68 of 1969. See De Wet JC Opuscula Miscellanea (1979) 91-92 for a
general discussion in this regard.
404
Section 3(1)(a) of the Prescription Act 68 of 1969.
405
Section 3(1)(b) of the Prescription Act 68 of 1969.
406
Superior force.
407
Section 3(1)(a) of the Prescription Act 68 of 1969.
408
Section 3(1)(b) of the Prescription Act 68 of 1969.
409
Section 3(1)(c) of the Prescription Act 68 of 1969.
410
See Carey Miller DL & Pope A Land Title in South Africa (2000) 185-191 for a more complete discussion in
this regard.
63
expiration of a period of three years after the day on which the right of the fideicommissarius
to the property has vested in him.411
2.3.5 Rationale for acquisitive prescription

Chapter four discusses the rationale for prescription, since it specifically focuses on this
aspect.
2.3.6 Prescription against the state

During the discussion of Roman-Dutch law, it was seen that under certain circumstances it
was possible to acquire alienable state property through prescription.412 Since the
commencement of the 1943 Act, as well as the 1969 Act, this matter has been regulated by
statute. The 1943 Act explicitly states that it binds the state and that prescription shall not run
against the state unless the property in question is capable of being alienated by the state and
of being owned by a private person.413 The 1969 Act is to the same effect, explicitly stating
that it binds the state and that its provisions shall not affect the provision of any law that
prohibits the acquisition of land or any right in land by prescription.414 At first glance these
sections might seem to be in conflict, but a better interpretation is probably that the 1969 Act
binds the state in so far as the state has not enacted legislation that prohibits the acquisition of
property through prescription.415 For instance, the State Land Disposal Act 48 of 1961
prohibits the acquisition of state land through prescription since it came into operation in
1971.416 However, persons are still able to acquire state property through prescription that
does not fall under the definition of immovable property, such as movable state property,
for instance.
2.4 Conclusion
411
412
See Voet 41.3.12. Prescription under Roman-Dutch law is discussed in section 2.2.3 above.
413
Section 13(1) and (3) of the Prescription Act 18 of 1943.
414
Sections 18-19 of the Prescription Act 68 of 1969.
415
See the argument in favour of this approach in Badenhorst PJ, Pienaar JM & Mostert H Silberberg and
Schoemans The Law of Property (5th ed 2006) 173.
416
Section 3 of Act 48 of 1961.
64
It is clear that prescription is of ancient heritage and came to South African law through its
Roman-Dutch legal heritage. Through the ages it has undergone many changes and
developments, which in South African law culminated in the enactment of the two
prescription acts. Despite uncertainty concerning some of the requirements for prescription,
this legal institution is mostly regarded as legally certain and unproblematic in modern-day
South African law. Much of the confusion pertaining to the requirements for prescription can
be overcome if one views the nec precario and adverse user requirements as forming part of
the animus domini element of possessio civilis. Such a conclusion is strengthened by the 1969
Act, which merely requires a possessor to possess property openly and as if owner.
Although prescription may appear to be a harsh rule, it still serves the legitimate purpose of
promoting legal certainty by affording de iure status to long-existing de facto situations.
Although not entirely free of uncertainty and potential problems, as mentioned, it was seen
that the requirements under the two acts are indeed similar and mainly unproblematic. The
biggest difficulty seems to be in the reconciliation of the fact that both bona and mala fide
possessors can profit from prescription. In the next chapter, the focus shifts to modern
English, Dutch, French and German law to show how prescription operates in those legal
systems. Specific attention is paid to the similarities of the requirements for prescription in
the civil law systems mentioned, together with how English law regulates prescription or
adverse possession today. Chapter three also emphasises how these systems solve the
problem of the mala fide possessor.
65
CHAPTER 3: ACQUISITIVE PRESCRIPTION IN FOREIGN JURISDICTIONS
3.1 Introduction
The purpose of this chapter is to compare the South African law of acquisitive prescription
(prescription) discussed in chapter two with the legal institutions that fulfil the same
purpose in English, Dutch, French and German law. English and Dutch law are thoroughly
investigated, with special reference to the Pye case1 in the discussion of English adverse
possession law.2 The reason for specifically focusing on English law is because the
constitutionality of English adverse possession law was recently challenged under Article 1 of
Protocol No 1 (Article 1) to the European Convention for the Protection of Human Rights
and Fundamental Freedoms 1950 (the Convention) in JA Pye (Oxford) Ltd v United
Kingdom.3 This necessitates an investigation as to how adverse possession operated at the
time it was challenged under Article 1. The chapter also scrutinises Dutch prescription law, as
it shares the Roman-Dutch legal heritage with South Africa and demonstrates notable
similarities with South African prescription law. However, Dutch prescription law attaches
different consequences to good and bad faith prescription by having different prescription
periods in this regard. This phenomenon deserves attention, since South African prescription
law sets a period of 30 years for both bona and mala fide possessors.
The analysis of English adverse possession law reveals that adverse possession requires a
different type of intention to obtain ownership than its civil-law counterparts. In this sense
adverse possession requires mere animus possidendi (intention to possess),4 while
prescription in the civil law jurisdictions under discussion requires the more strenuous animus
domini (intention of an owner).5 As a result, it is easier to have possession for purposes of
adverse possession than in the context of prescription. Consequently, a possessor is more
likely to acquire title through adverse possession than to succeed with a case based on
prescription in the civil-law sense. The Pye case illustrates this fact, where the adverse
possessors succeeded in acquiring title despite their willingness to rent the land from the
owner. Such willingness would have negated the animus domini, as was illustrated during the
1
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676; JA Pye (Oxford) Ltd v Graham
[2001] Ch 804; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419.
2
See section 3.2.3 below.
3
(2006) 43 EHRR 3 (IV). The decision by the Grand Chamber is reported as JA Pye (Oxford) Ltd v United
Kingdom (2008) 46 EHRR 45 (GC).
4
See section 3.2.2.3.2.3 below.
5
See section 3.3.2.2.1 for Dutch law, section 3.4.2.1 for French law and section 3.5 for German law below.
66
discussion of South African prescription law.6 Nonetheless, English adverse possession law
underwent fundamental alterations with the enactment of the Land Registration Act 2002
(LRA or 2002 Act), which now prevents the extinguishment of title in registered land
through mere adverse possession.7 Accordingly, the LRA now offers better protection to
owners of registered land than at the time of Pye. However, the LRA does not affect the
substantive requirements of adverse possession, as it merely creates procedural safeguards
that prevent owners of registered land from losing title through adverse possession.
German and English law (after the enactment of the LRA) have strict requirements in the
context of prescription and adverse possession. Since both these systems currently have a
positive registration system, guaranteeing the correctness of the register,8 people now look to
the register instead of possession to ascertain ownership. Consequently, the traditional
justifications for prescription and adverse possession such as that it affords de iure status to
long-existing de facto situations no longer carry weight in these systems. Chapter four
expands this line of reasoning and investigates the justifications for prescription and adverse
possession.
Dutch and French prescription law, with their negative registration systems, do not have the
same protective mechanisms as found in German and post-LRA English law. However, this
chapter indicates that the prescription regimes of these systems do protect the interests of
owners indirectly by requiring possession to be animo domini, coupled with longer
prescription periods for mala fide possessors.
3.2 English law

3.2.1 Introduction
English land law, unlike most civil law systems, does not have a rule similar to prescription
relating to land. The nearest concept is adverse possession, which is wholly a creature of
statute and not an original method of acquisition of ownership.9 This is because adverse
6
See section 2.3.2.1.1 of chapter two above. For the position in Dutch, French and German law, see sections
3.3.2.2.1, 3.4.2.1 and 3.5 respectively below.
7
The amendments by the Land Registration Act 2002 are discussed in section 3.2.4 below.
8
See section 3.2.4 for English law and section 3.5 for German law below.
9
Roberts v Swangrove Estates Ltd [2008] Ch 439 para 20 per Mummery LJ. See also Gray K & Gray SF
Elements of Land Law (5th ed 2009) para 9.1.3; Smith RJ Property Law (6th ed 2009) 79.
67
possession as opposed to prescription only extinguishes the owners title in land and not
the interests of third parties pertaining to that title.10
Although English law recognises prescriptive acquisition for purposes of the acquisition of
easements (or servitudes), this is not the same as adverse possession.11 Nourse LJ neatly
summed up the difference between these two legal institutions in one of the most
authoritative decisions12 on adverse possession in English law:
The essential difference between prescription and [adverse possession] is that in the former
case title can be acquired only by possession as of right [possession nec vi, nec clam, nec
precario]. That is the antithesis of what is required for [adverse possession], which perhaps can
be described as possession as of wrong. It can readily be understood that with prescription the
intention of the true owner may be of decisive importance, it being impossible to presume a
grant by someone whose intention is shown to have been against it. But with [adverse
possession] it is the intention of the squatter which is decisive. He must intend to possess the
land to the exclusion of all the world, including the true owner, while the intention of the latter
is, with one exception, entirely beside the point.13
It is worth emphasising at this point that the law of adverse possession recently underwent
fundamental changes with the enactment of the LRA. The recommendations from the English
Law Commission resulted in its enactment, as the Commission established that the traditional
justifications for adverse possession such as that it promotes legal certainty were no
longer valid in cases that involve registered land when the register provides conclusive proof
of title.14
The Pye case,15 decided before the LRA came into operation, is a classic illustration of the
reasons why the Law Commission advised the legislature to amend the rules of adverse
10
Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.3; Smith RJ Property Law (6th ed 2009) 79.
11
This dissertation does not discuss the acquisition of easements (servitudes) by prescriptive acquisition in
English law. What is interesting, though, is that the period required for prescriptive acquisition of easements is
set at 20 years, while the much more odious adverse possession (before the Land Registration Act 2002)
required only 12 years.
12
The authoritative position established in Buckinghamshire County Council v Moran [1990] Ch 623, together
with Powell v McFarlane (1979) 38 P & CR 452, was confirmed by the House of Lords in JA Pye (Oxford) Ltd
v Graham [2003] 1 AC 419 432 per Lord Browne-Wilkinson.
13
Buckinghamshire County Council v Moran [1990] Ch 623 644.
14
See especially the two reports by the English Law Commission, namely Land Registration for the Twenty-
First Century: A Conveyancing Revolution Number 271 (July 2001) and Land Registration for the Twenty-
First Century: A Consultative Document Number 254 (September 1998). I discuss these reasons more fully in
section 4.3 of chapter four below, which chapter specifically focuses on the justifications behind prescription
and adverse possession.
15
Although there were five decisions in total, the first three decided in the United Kingdom and last two decided
by the European Court of Human Rights, this case is referred to in the singular form (for instance Pye case as
opposed to Pye cases). The decisions are as follows: JA Pye (Oxford) Ltd and Another v Graham and Another
[2000] Ch 676; JA Pye (Oxford) Ltd v Graham [2001] Ch 804; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419;
68
possession pertaining to registered land. In essence, the LRA makes it much more difficult to
obtain an estate in land (or ownership, to put it simply) than it traditionally was under the law
preceding its enactment. However, it does not go so far as to abolish adverse possession in its
entirety, since the amendments did not alter the substantive requirements that a person has to
satisfy in order to succeed with a case based on adverse possession. The 2002 Act merely
provides additional requirements (or safeguards) that the possessor, or squatter, now has to
satisfy. However, the LRA does not amend pre-200316 adverse possession law regarding
unregistered land in any sense.
This section discusses adverse possession law by firstly referring to the law in force
immediately prior to the commencement of the 2002 Act. To achieve this end, the section
examines case law and developments that occurred prior to the enactment of the LRA.
Secondly, I evaluate the first three Pye decisions17 with specific emphasis on the reasons
given by each court as to the animus possidendi requirement, together with how they differed
in this respect. The discussion of the decisions by the Fourth18 and Grand Chambers19 of the
European Court of Human Rights appears in chapter five, as these decisions focus on the
constitutionality of adverse possession under Article 1 of the Convention.20 The reason for
only discussing the two Pye decisions of the European Court of Human Rights in chapter five
is that they do not affect the substantive law requirements for adverse possession as laid
down by the House of Lords in JA Pye (Oxford) Ltd v Graham21 in any way. Thirdly, the
section analyses the alterations introduced by the LRA and illustrates how cases similar to
Pye are unlikely to occur in future. The aim of this discussion is not to provide a doctrinal
analysis of English land law, but rather to illustrate how adverse possession operates in that
system today for purposes of a comparative analysis.
JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV); JA Pye (Oxford) Ltd v United Kingdom (2008)
46 EHRR 45 (GC). The United Kingdom decisions are discussed in section 3.2.3 below, while the decisions by
the European Court of Human Rights form part of the discussion in section 5.3.2.4.2 of chapter five below.
16
The Land Registration Act 2002, which fundamentally altered English adverse possession law, only came into
operation on 13 October 2003 and is prospective in nature: See Ofulue v Bossert [2009] UKHL 16 and JA Pye
(Oxford) Ltd v Graham [2003] 1 AC 419.
17
[2001] Ch 804; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419.
18
JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV).
19
20
The decisions by the Fourth and Grand Chambers of the European Court of Human Rights are discussed in
section 5.3.2.4.2 of chapter five below. Chapter five specifically focuses on the constitutionality of prescription
or adverse possession.
21
[2003] 1 AC 419.
69
3.2.2 Adverse possession prior to the Land Registration Act 200222

3.2.2.1 Introduction and relevant statutory provisions
Before embarking on this discussion, it is worth emphasising that a person who holds an
estate in fee simple in registered or unregistered land (which one may equate, more or less, to
ownership in the civil-law sense) is simply referred to as the owner in this chapter.23
Adverse possession which forms part of the law of limitation of actions is a creature of
statute, since it never existed as a common law rule.24 The Limitation Act 1980 (LA or
1980 Act), which was the primary source on limitation law before the LRA came into
force, lays down three limitation periods. Of these three, only the 12-year period for the
recovery of land25 is relevant for the present discussion.26 Section 15(1) of the LA27 provides
as follows:
No action shall be brought by any person [the owner] to recover any land after the expiration
of twelve years from the date on which the right of action accrued to him or, if it first accrued to
some person through whom he claims, to that person.
The essence of this provision is that an owner of land will be unable to reclaim possession
thereof after a period of 12 years has expired from the day that the owner, or the person
through whom she claims, obtained the right to reclaim possession of that land. Section 38(1)
of the 1980 Act the interpretation section defines action as including any proceedings
in a court of law, including an ecclesiastical court ... The courts have held that an originating
summons amounts to an action, although it does not seem to extend to an application to the
Land Registry.28
22
This act only came into operation on 13 October 2003.
23
Although one cannot regard the common law estate in fee simple as being the same as civilian ownership on a
theoretical level, one can regard the two as similar on a practical level. Interestingly, some authors argue that
after the commencement of the Land Registration Act 2002 (which obliges all land in the United Kingdom to be
registered), a new conceptualism of ownership or dominium has emerged in English land law: See Gray K &
Gray SF Elements of Land Law (5th ed 2009) para 9.1.20.
24
Roberts v Swangrove Estates Ltd [2008] Ch 439 para 20 per Mummery LJ.
25
Land in this sense includes any legal or equitable interest in land: See section 38(1) of the Limitation Act
1980.
26
The Land Registration Act 2002 reduced the limitation period for registered land to 10 years, but the 12-year
period is still applicable to unregistered land. This dissertation does not investigate the longer periods of
limitation in so-called special cases, which require a 30-year limitation period for crown lands and
corporations sole (60 years under Schedule 6, paragraph 13 of the Land Registration Act 2002): See Schedule 1,
paragraph 10 of the Limitation Act 1980.
27
This Act has been in force since 1 May 1981.
28
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 699.
70
Part 1 of Schedule 1 to the LA contains the provisions used to determine the date of accrual
of the right of action to recover land.29 It is headed Accrual of Rights of Action to Recover
Land and provides as follows:
1 Where the person bringing an action to recover land, or some person through whom he
claims, has been in possession of the land, and has while entitled to the land been dispossessed
or discontinued his possession, the right of action shall be treated as having accrued on the date
of the dispossession or discontinuance.30
It is plain that the right of action (to reclaim possession) accrues to the owner on the date on
which she discontinues possession or has been dispossessed of it. Under the 1980 Act, persons
that claim title through adverse possession must prove either (i) discontinuance by the owner
followed by possession, or (ii) dispossession of that owner.31 Therefore, it is necessary to
distinguish between these two concepts.
The accrual of the action for recovering possession is further qualified in Part 1 of Schedule 1
to the LA. This qualification is headed Right of action not to accrue or continue unless there
is adverse possession and provides as follows:
8(1) No right of action to recover land shall be treated as accruing unless the land is in the
possession of some person in whose favour the period of limitation can run (referred to below in
this paragraph as adverse possession); and where under the preceding provisions of this
Schedule any such right of action is treated as accruing on a certain date and no person is in
adverse possession on that date, the right of action shall not be treated as accruing unless and
until adverse possession is taken of the land.
8(2) Where a right of action to recover land has accrued and after its accrual, before the right
is barred, the land ceases to be in adverse possession, the right of action shall no longer be
treated as having accrued and no fresh right of action shall be treated as accruing unless and
until the land is again taken into adverse possession.32
It follows that the right of action will not accrue before the land is in the possession of a
person in whose favour the limitation period can run, which possession is known as adverse
possession. Limitation or adverse possession in cases regarding unregistered land
extinguishes the title of the owner the moment the limitation period expires.33 However, the
expiration of the limitation period does not extinguish the title of the owner of registered land,
29
Section 15(6) of the Limitation Act 1980.
30
Schedule 1, paragraph 1 of the Limitation Act 1980.
31
Buckinghamshire County Council v Moran [1990] Ch 623 635 per Slade LJ; Treloar v Nute [1976] 1 WLR
1295 1300.
32
33
Section 17 of the Limitation Act 1980.
71
since the law then deems the registered owner to hold the land in trust for the squatter.34 The
adverse possessor may then apply to be registered as the owner of that land.35 As mentioned
above, the LRA fundamentally altered this position of adverse possession pertaining to
registered land.36
It is clear from these provisions that limitation (or adverse possession) only commences when:
i) the owner has been dispossessed, or has discontinued her possession; and
ii) the squatter has taken adverse possession of the land.37
Although it may seem simple to distinguish between these requirements on a theoretical level,
for practical purposes they tend to overlap to a certain extent. The crucial question in this
regard is whether the possessor was in adverse possession for the entire duration of the
limitation period. Just as in South African law, negligence or ignorance on the part of the
owner is irrelevant for purposes of adverse possession.38 Accordingly, it is immaterial unless
there is concealed fraud whether an owner is ignorant of the dispossession.39
3.2.2.2 Distinguishing between discontinuance and dispossession

Although the 1980 Act differentiates between these two concepts, parties in the majority of
cases agree to decide a case based on adverse possession in terms of dispossession.40
Nevertheless, it remains necessary to discuss both concepts.
The courts have held that the words possess and dispossess or expressions such as
discontinuance must be afforded their ordinary legal meaning in terms of the LA.41 Fry J
described the difference between dispossession and discontinuance as follows:
34
35
Section 75(2) of the Land Registration Act 1925. See also Lambeth London Borough Council v Blackburn
[2001] EWCA Civ 912 para 8 per Clarke LJ.
36
These alterations are discussed in section 3.2.4 below.
37
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 431 per Lord Brown-Wilkinson; JA Pye (Oxford) Ltd and
Another v Graham and Another [2000] Ch 676 687, 689; Buckinghamshire County Council v Moran [1990] Ch
623 636 per Slade LJ and per Nourse LJ at 644; Powell v McFarlane (1979) 38 P & CR 452 481. See also
Harpum C, Bridge S & Dixon M Megarry and Wade: The Law of Real Property (7th ed 2008) para 35-015.
38
Powell v McFarlane (1979) 38 P & CR 452 480; Rains v Buxton (1880) 14 Ch D 537 540-541. See also Gray
K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.35.
39
Powell v McFarlane (1979) 38 P & CR 452 480.
40
See, for instance, JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 432 per Lord Browne-Wilkinson;
Buckinghamshire County Council v Moran [1990] Ch 623 636 per Slade LJ; Powell v McFarlane (1979) 38 P &
CR 452 468.
72
[T]he difference between dispossession and the discontinuance of possession might be

expressed in this way the one is where a person comes in and drives out the others from
possession, the other case is where the person in possession goes out and is followed into
possession by other persons.42
Since the law no longer requires a squatter to physically remove or oust the owner from
possession, dispossession now occurs when the squatter obtains possession of the land.43 The
courts describe dispossession as the taking of possession in such sense from another without
the others licence or consent.44 A squatter can only dispossess an owner for purposes of
adverse possession if she performs sufficient physical acts on the land and has the requisite
animus possidendi. 45 Therefore, to dispossess the owner, the squatter must satisfy the two
elements of possession, namely factual possession (factum possessionis) coupled with the
intention to possess (animus possidendi).46
Discontinuance, on the other hand, occurs when the owner goes out of possession or abandons
it and the squatter then takes up possession.47 Due to this fine distinction, some sources state
that the intention of the owner may be important in this regard.48 This approach is incorrect,
since the mere intention of the owner cannot prevent a person from having adverse
possession.49 According to the courts, an owner can prevent a discontinuance of possession by
41
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 434 per Lord Browne-Wilkinson; Wretham v Ross [2005]
EWHC 1259 Ch para 16; Buckinghamshire County Council v Moran [1990] Ch 623 637 per Slade LJ.
42
Rains v Buxton (1880) 14 Ch D 537 539-540, quoted with approval in Buckinghamshire County Council v
Moran [1990] Ch 623 636 per Slade LJ and referred to by Nourse LJ at 644.
43
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 434-435 per Lord Browne-Wilkinson and per Lord Hope of
Craighead at 445; Roberts v Swangrove Estates Ltd [2008] Ch 439 para 32 per Mummery LJ; Wretham v Ross
[2005] EWHC 1259 Ch para 16. For an example in this regard, see Lambeth London Borough Council v
Blackburn [2001] EWCA Civ 912 paras 44-46, where Clarke LJ held that by breaking the padlock to a flat and
replacing it with his own, the squatter dispossessed the owner of his possession over the flat. The word ouster
which is derived from pre-1833 adverse possession law and has overtones of confrontational, knowing
removal of the true owner from possession no longer applies in English law: See JA Pye (Oxford) Ltd v
Graham [2003] 1 AC 419 434-435 per Lord Browne-Wilkinson. See also Smith RJ Property Law (6th ed 2009)
70-71 and Dockray M Adverse Possession and Intention Part I 1982 Conveyancer 256-264.
44
Powell v McFarlane (1979) 38 P & CR 452 469, quoted with approval in JA Pye (Oxford) Ltd v Graham
[2003] 1 AC 419 433 per Lord Browne-Wilkinson and in Wretham v Ross [2005] EWHC 1259 Ch para 16. In
this instance dispossession is similar to adverse possession, which also has to be without licence or consent
from the owner: See section 3.2.2.3.2 below.
45
Buckinghamshire County Council v Moran [1990] Ch 623 644 per Nourse LJ.
46
Possession, with its two elements of factual possession and the intention to possess, is discussed in section
3.2.2.3.2 below.
47
See generally JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 694; Buckinghamshire
County Council v Moran [1990] Ch 623 644 per Nourse LJ; Powell v McFarlane (1979) 38 P & CR 452 468.
See also Harpum C, Bridge S & Dixon M Megarry and Wade: The Law of Real Property (7th ed 2008) para 35-
015.
48
49
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 435 per Lord Browne-Wilkinson; Buckinghamshire County
Council v Moran [1990] Ch 623 645 per Nourse LJ.
73
the slightest acts of ownership even by none at all if such owner intends to use the land for
a specific purpose in the future.50 Although this position is correct, it merely indicates that a
squatter must dispossess the owner before she can obtain adverse possession.51
The factual possession and animus possidendi required for dispossession are similar to what is
required for discontinuance, since there is no practical distinction between what is necessary
to exclude all the world in a case where the true owner has retained possession and in one
where he has discontinued it.52 Against this background, it seems that the distinction between
discontinuance and dispossession has indeed become more of a theoretical than practical
reality. Therefore, it is questionable whether a material distinction exists between
dispossession and discontinuance of possession for purposes of adverse possession.53 It seems
that the deciding factor should rather be whether the squatter has dispossessed the owner
through obtaining possession without her consent of the land for the duration of the
limitation period.54 It follows that the taking or continuation of possession by the squatter with
the owners consent does not constitute dispossession or (adverse) possession.55
In cases pertaining to dispossession, the limitation period commences on the date that the
squatter dispossesses the owner.56 As to discontinuance, the period commences on the date
that the possessor obtains possession.57 This again highlights the fact that the distinction
between these two concepts is immaterial.
3.2.2.3 Adverse possession
50
Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 19 per Clarke LJ;
Buckinghamshire County Council v Moran [1990] Ch 623 644 per Nourse LJ; Powell v McFarlane (1979) 38 P
& CR 452 468, 472. See also Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.40.
51
52
Buckinghamshire County Council v Moran [1990] Ch 623 644-645 per Nourse LJ.
53
Buckinghamshire County Council v Moran [1990] Ch 623 645 per Nourse LJ. See also Gray K & Gray SF
Elements of Land Law (5th ed 2009) para 9.1.36; Smith RJ Property Law (6th ed 2009) 71; Harpum C, Bridge S
& Dixon M Megarry and Wade: The Law of Real Property (7th ed 2008) para 35-016; Jourdan S Adverse
Possession (2003) paras 5-185-20.
54
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 435 per Lord Browne-Wilkinson; Wretham v Ross [2005]
EWHC 1259 Ch para 16; Topplan Estates Ltd v Townley [2004] EWCA Civ 1369 para 39 per Parker LJ.
55
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 434-435 per Lord Browne-Wilkinson; Wretham v Ross
[2005] EWHC 1259 Ch para 16.
56
57
Schedule 1, paragraphs 1 and 8(1) of the Limitation Act 1980.
74
3.2.2.3.1 The meaning of adverse in adverse possession58

It is important to clarify the meaning of the word adverse and its place in adverse
possession law before discussing the substantive requirements of this legal institution. This is
by no means a simple feat, since the concepts of adverse possession, factual possession and
animus possidendi sometimes tend to overlap to a certain extent, which makes it difficult to
distinguish them clearly. Therefore, the discussion necessitates a brief historical overview of
the adverse concept, introduced through the notion of non-adverse possession, which
formed part of English limitation law prior to 1833.59
In essence, adverse possession before 1833 denoted an ouster and use of the land by the
squatter of a kind which was clearly inconsistent with the paper title.60 Such inconsistent use
was known as adverse possession.61 It is unnecessary, however, to discuss the content and
ambit of that type of adverse possession here,62 since the Real Property Limitation Act
abolished the doctrine of non-adverse possession in 1833.63 It has since been incorrect to use
these old notions namely adverse possession or ouster from possession in judicial
decisions.64 Nonetheless, adverse possession again made its appearance in the 1939 and
1980 Limitation Acts. Despite this reoccurrence, references to adverse possession in these
acts do not reintroduce the old notions of adverse possession from before 1833.65
The 1980 Act defines adverse possession as being present where land is in the possession of
some person in whose favour the period of limitation can run.66 The courts decided that
adverse possession in this context does not relate to the nature of the possession, but rather to
58
For an extensive analysis of the concept adverse in adverse possession, see Jourdan S Adverse Possession
(2003) paras 6-016-35.
59
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 433 per Lord Browne-Wilkinson. See also Dockray M
Adverse Possession and Intention Part I 1982 Conveyancer 256-264 260.
60
61
62
See JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 433-434 per Lord Browne-Wilkinson for a detailed
discussion. See generally Dockray M Adverse Possession and Intention Part I 1982 Conveyancer 256-264.
63
Later followed by the Real Property Limitation Act 1874.
64
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 433-434 per Lord Browne-Wilkinson. See generally
Paradise Beach Co Ltd v Price-Robinson [1968] AC 1072; Culley v Taylerson (1840) 11 A & E 1008; Nepean v
Doe (1837) 2 M & W 894. See also Dockray M Adverse Possession and Intention Part I 1982 Conveyancer
256-264 260.
65
66
Schedule 1, paragraph 8(1) of the Limitation Act 1980.
75
the capacity of the squatter.67 Accordingly, references to adverse possession under the 1980
Act do not reintroduce the old notions of pre-1833 limitation law.68 According to Lord
Browne-Wilkinson, the question surrounding adverse possession today should rather be
whether the squatter has dispossessed the paper owner by going into ordinary possession of
the land for the requisite period without the consent of the owner.69 This section proceeds to
illustrate the content of adverse possession against this background.
Prima facie the word adverse seems to indicate that it requires possession to be hostile or
aggressive. It was seen above that this is not the case, since the use of the term adverse
possession is now merely meant to indicate that the possession is adverse to the interests of
the owner.70 Possession cannot be adverse if it is enjoyed under a lawful title from the owner,
since it is both semantically and legally impossible to be in adverse possession with an
owners consent.71 If a person occupies or uses land by licence of the owner and that licence
has not been properly determined, such person cannot be in adverse possession.72
Consequently, adverse possession requires the squatter to show that her possession was not
pursuant to a licence, a tenancy, or some other grant, whether express or implied, from the
owner.73 This position is similar to that in South African prescription law, where the
presence of such a grant or licence also prevents the running of prescription.74 If a squatter
occupies land with permission from the owner, it is clear that the squatter and not the owner
then enjoys possession, although such possession cannot be adverse as long as the licence is
67
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 434 per Lord Browne-Wilkinson, subsequently followed in
Roberts v Swangrove Estates Ltd [2008] Ch 439 para 31 per Mummery LJ and Topplan Estates Ltd v Townley
[2004] EWCA Civ 1369 paras 39, 71 per Parker LJ.
68
69
Adverse Possession and Intention Part I (1982) Conveyancer 256-264 260.
70
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 445 per Lord Hope of Craighead. See also Roberts v
Swangrove Estates Ltd [2008] Ch 439 para 30 per Mummery LJ; Topplan Estates Ltd v Townley [2004] EWCA
Civ 1369 para 40 per Parker LJ; Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 18
per Clarke LJ.
71
Roberts v Swangrove Estates Ltd [2008] Ch 439 para 33 per Mummery LJ; Wretham v Ross [2005] EWHC
1259 Ch para 41; JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 693;
CR 452 469. See also Harpum C, Bridge S & Dixon M Megarry and Wade: The Law of Real Property (7th ed
2008) para 35-016
72
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 693; Buckinghamshire County
Council v Moran [1990] Ch 623 636 per Slade LJ; Powell v McFarlane (1979) 38 P & CR 452 469.
73
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 694. See generally Hayward v
Chaloner [1968] 1 QB 107.
74
See sections 2.3.2.1.1 and 2.3.2.4 of chapter two above.
76
in force.75 However, if the squatter remains in occupation after the expiration of the licence,
such possession can then become adverse.76 Although authors disagree on this point, it
appears that the necessary intention to possess will be absent if the squatter believes that
possession is still held with permission from the owner, even though it was terminated.77 Yet,
it is plain that one must be able to discern such a belief from the possessors conduct.
Jourdan, in his authoritative book on adverse possession, describes adverse possession as
wrongful possession.78
3.2.2.3.2 Elements of adverse possession: Factual possession and intention to

possess
3.2.2.3.2.1 Introduction
Since the 1980 Act defines neither possession nor dispossession, one has to use English
common law to ascertain the meaning of these terms.79 The squatter obtains possession (and
such possession is adverse) only if she satisfies both elements of possession, namely:
i) sufficient physical control (factum possessionis); coupled with

ii) the intention to possess the land (animus possidendi).80
75
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 694-695.
76
77
Clowes Developments (UK) Ltd v Walters [2006] 1 P & CR 1 13-16. See also Smith RJ Property Law (6th ed
2009) 74. To the contrary is Wretham v Ross [2005] EWHC 1259 Ch para 40 and Gray K & Gray SF Elements
of Land Law (5th ed 2009) para 9.1.48.
78
Jourdan S Adverse Possession (2003) para 6-06. See also Buckinghamshire County Council v Moran [1990]
Ch 623 644 per Nourse LJ.
79
This is similar to the position under the Prescription Act 18 of 1943 and Prescription Act 68 of 1969 in South
African law, which also do not define possession. For a discussion in this regard, see sections 2.3.1-2.3.2 of
chapter two above.
80
Ofulue v Bossert [2009] UKHL 16 para 67 per Lord Neuberger of Abbotsbury; JA Pye (Oxford) Ltd v Graham
[2003] 1 AC 419 432-433, 435 per Lord Browne-Wilkinson and per Lord Hope of Craighead at 445-446;
Roberts v Swangrove Estates Ltd [2008] Ch 439 para 29 per Mummery LJ; Wretham v Ross [2005] EWHC 1259
Ch paras 16-17; Topplan Estates Ltd v Townley [2004] EWCA Civ 1369 paras 37-38 per Parker LJ; Lambeth
London Borough Council v Blackburn [2001] EWCA Civ 912 para 12 per Clarke LJ; Buckinghamshire County
Council v Moran [1990] Ch 623 636 per Slade LJ; Powell v McFarlane (1979) 38 P & CR 452 469. See also
United States (US) adverse possession law seems also to require mere animus possidendi, although some
authors refer to this intention as the intent to maintain dominion: See Stake JE The Uneasy Case for Adverse
Possession (2001) 89 Georgetown Law Journal 2419-2474 2423-2432. The requirement of an intention to
possess (animus possidendi) is lower than what is required by most civil-law based jurisdictions, namely South
African (discussed in section 2.3.2.1.1 in chapter two above), Dutch (discussed in section 3.3.2.2.1 below),
French (discussed in section 3.4.2.1 below) and German (discussed in section 3.5 below) law, all of which
require the possessor to have the intention of an owner (animus domini). Even Italian and Belgian law require a
person to possess property with the animus domini before such person can qualify as a possessor: See Caterina R
Some Comparative Remarks on JA Pye (Oxford) v. The United Kingdom (2007) 15 European Review of
Private Law 273-279 273 and Sagaert V De Verkrijgende Verjaring van Onroerende Goederen Herbezocht.
77
Neither the occupation of land itself, nor the mere intention to possess without physical
detention, will suffice.81 These requirements (occupation and intention) are complementary
and must coincide for the entire limitation period before a person can be in possession.82 A
person who claims to have dispossessed an owner must likewise fulfil both these
requirements.83 Consequently, if a squatter dispossesses the owner by taking possession of the
land without the owners consent, such dispossession constitutes adverse possession for
purposes of the 1980 Act.84 This confirms that factual possession of land coupled with the
necessary animus possidendi by the squatter (to exclude everyone else) constitutes adverse
possession.85 This state of affairs, namely adverse possession, must exist for the whole
duration of the limitation period.86 Should possession cease to be adverse, it will revert to the
owner and the limitation period will only commence de novo once the squatter regains adverse
possession.87
Possession is normally single and exclusive, the exception being in cases concerning joint
possessors,88 since only one person can be in possession of land at any given time.89 The
owner therefore ceases to enjoy possession the moment the squatter obtains it.90 A squatter
dispossesses an owner if the owner was in possession of the land at one stage, but the
squatters subsequent occupation then constitutes possession.91 The question whether the
squatter possessed the land (factum possessionis) with the requisite intention (animus
Een Aanzet tot het Debat over het Verjaringsrecht (2007) 39 Rechtskundig Weekblad 1582-1597 1587. I am
indebted to Prof Sagaert for bringing his article under my attention.
81
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 446 per Lord Hope of Craighead; Topplan Estates Ltd v
Townley [2004] EWCA Civ 1369 para 40 per Parker LJ.
82
Buckinghamshire County Council v Moran [1990] Ch 623 636 per Slade LJ; Powell v McFarlane (1979) 38 P
& CR 452 469. See also Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.43.
83
& CR 452 469.
84
Powell v McFarlane (1979) 38 P & CR 452 469, although this case dealt with the Limitation Act 1939.
85
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 434 per Lord Browne-Wilkinson, followed in Roberts v
Swangrove Estates Ltd [2008] Ch 439 paras 32, 88 per Mummery LJ.
86
Roberts v Swangrove Estates Ltd [2008] Ch 439 para 33 per Mummery LJ; Lambeth London Borough Council
v Blackburn [2001] EWCA Civ 912 para 29 per Clarke LJ. See also Smith RJ Property Law (6th ed 2009) 77.
87
Schedule 1, paragraph 8(2) of the Limitation Act 1980. See further Roberts v Swangrove Estates Ltd [2008]
Ch 439 para 33 per Mummery LJ.
88
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 435 per Lord Browne-Wilkinson and per Lord Hope of
Craighead at 445; Roberts v Swangrove Estates Ltd [2008] Ch 439 para 33 per Mummery LJ. In the Roberts
case, Mummery LJ stated that joint tenants count as one person. See further Topplan Estates Ltd v Townley
[2004] EWCA Civ 1369 para 40 per Parker LJ.
89
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 445 per Lord Hope of Craighead; Roberts v Swangrove
Estates Ltd [2008] Ch 439 para 33 per Mummery LJ.
90
91
Schedule 1, paragraph 1 of the Limitation Act 1980. See also JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419
435 per Lord Browne-Wilkinson; Treloar v Nute [1976] 1 WLR 1295 1300.
78
possidendi) depends on whether the owner has discontinued possession or was dispossessed
by the squatter.92 In both instances, the crucial question is whether the squatter was in
possession of the land.
The law deems the owner in the absence of evidence indicating otherwise as being in
possession of the land.93 It follows that the law requires clear evidence that the squatter had
both factual possession and held it animo possidendi before the courts will recognise such
squatter as being in adverse possession.94
3.2.2.3.2.2 Factual possession (factum possessionis)95

Slade J, as he then was, defined factual possession as follows:
Factual possession signifies an appropriate degree of physical control. It must be a single and
[exclusive] possession ... Thus an owner of land and a person intruding on that land without his
consent cannot both be in possession of the land at the same time. The question what acts
constitute a sufficient degree of exclusive physical control must depend on the circumstances, in
particular the nature of the land and the manner in which land of that nature is commonly used
or enjoyed.96
It has also been described as [a] sufficient degree of physical custody and control.97 This
description of factum possessionis largely corresponds with what is required to constitute
corpus in South African law.98 A squatter does not have to have complete physical control
over every piece of the occupied land to satisfy the factum possessionis requirement, since this
is simply impractical.99 Consequently, factum possessionis must be determined with reference
92
See generally JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 431 per Lord Browne-Wilkinson.
93
Powell v McFarlane (1979) 38 P & CR 452 470; Roberts v Swangrove Estates Ltd [2008] Ch 439 para 33 per
Mummery LJ; Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 13 per Clarke LJ.
See also Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.40.
94
Powell v McFarlane (1979) 38 P & CR 452 470-472. See also Lambeth London Borough Council v Blackburn
[2001] EWCA Civ 912 para 36 per Clarke LJ, quoted with approval in JA Pye (Oxford) Ltd v Graham [2003] 1
AC 419 448 per Lord Hutton and approved by Lord Hope of Craighead at 446. See generally Wretham v Ross
[2005] EWHC 1259 Ch paras 15, 20.
95
For an extensive analysis of factual possession, see Jourdan S Adverse Possession (2003) paras 8-018-25.
96
Powell v McFarlane (1979) 38 P & CR 452 470-471, quoted with approval in JA Pye (Oxford) Ltd v Graham
[2003] 1 AC 419 436 per Lord Browne-Wilkinson. See also Wretham v Ross [2005] EWHC 1259 Ch para 18;
Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 14 per Clarke LJ; JA Pye (Oxford)
Ltd and Another v Graham and Another [2000] Ch 676 689; Buckinghamshire County Council v Moran [1990]
Ch 623 641 per Slade LJ.
97
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 435 per Lord Browne-Wilkinson.
98
See section 2.3.2.1.2 of chapter two above.
99
Powell v McFarlane (1979) 38 P & CR 452 471. See also Roberts v Swangrove Estates Ltd [2008] Ch 439
para 78 per Mummery LJ. See further Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.52.
79
to an objective standard, which is related to the nature and situation of the land involved.100
Consequently, acts of possession exercised on parts of the land can constitute possession of
the whole, although this depends on the type of land and the degree of use.101 A helpful test to
determine factual possession is whether the alleged possessor has been dealing with the land
in question as an occupying owner might have been expected to deal with it and that no-one
else has done so.102
The question of factum possessionis is related to the animus possidendi, since one deduces
this intention from physical acts of the squatter.103 A person does not obtain possession until
she has exclusive enjoyment of the land.104 The question of what amounts to such exclusive
enjoyment depends on the nature of the property as well as the manner in which land of that
nature is commonly used or enjoyed.105 For instance, fishing could in the way it has done
constitute factual possession.106 A lack of fencing by the squatter is indicative that she did not
have factual possession, although this fact (by itself) is not conclusive.107 Furthermore, factual
possession must also be peaceable and open.108
3.2.2.3.2.3 Intention to possess (animus possidendi)109

A squatter must have the intention to possess together with the factum possessionis before
she can obtain possession over land. Powell v McFarlane110 provides the definition for animus
possidendi:
100
101
Roberts v Swangrove Estates Ltd [2008] Ch 439 para 78 per Mummery LJ; Powell v McFarlane (1979) 38 P
& CR 452 471. See also Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.52.
102
Powell v McFarlane (1979) 38 P & CR 452 471, quoted with approval in JA Pye (Oxford) Ltd and Another v
Graham and Another [2000] Ch 676 689. See also Roberts v Swangrove Estates Ltd [2008] Ch 439 para 78 per
Mummery LJ; Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 15 per Clarke LJ.
103
See especially Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 36 per Clarke LJ,
quoted with approval in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 448 per Lord Hutton and approved by
Lord Hope of Craighead at 446. See also generally Wretham v Ross [2005] EWHC 1259 Ch paras 15, 20.
104
Roberts v Swangrove Estates Ltd [2008] Ch 439 paras 33, 75 per Mummery LJ.
105
Roberts v Swangrove Estates Ltd [2008] Ch 439 paras 33, 75 per Mummery LJ.
106
107
Wretham v Ross [2005] EWHC 1259 Ch para 47.
108
Browne v Perry [1991] 1 WLR 1297 1302 per Lord Templeman. See also Wretham v Ross [2005] EWHC
1259 Ch para 16; Topplan Estates Ltd v Townley [2004] EWCA Civ 1369 para 86 per Parker LJ; Lambeth
London Borough Council v Blackburn [2001] EWCA Civ 912 para 18 per Clarke LJ. This corresponds with the
South African prescription requirements that possession must be open and nec vi (without violence), see section
2.3.2.2 of chapter two above.
109
For an extensive discussion regarding the animus possidendi requirement, see Jourdan S Adverse Possession
(2003) paras 9-019-99.
110
(1979) 38 P & CR 452.
80
[T]he animus possidendi involves the intention, in ones own name and on ones own behalf, to
exclude the world at large, including the owner with the paper title if he be not himself the
possessor, so far as is reasonably practicable and so far as the process of the law will allow.111
It is not the nature of the squatters physical control alone, but also the intention with which
these physical acts are performed that determines whether such squatter has possession.112
However, one can only deduce a persons mental attitude from her physical acts.113 It follows
that factum possessionis offers the best evidence to establish whether the animus possidendi is
present.114 It is helpful to restate that the law deems an owner or another person with the
right to possession of the land to have possession as the point of departure, unless and until
someone presents evidence to the contrary.115
The animus possidendi entails an intention to possess the land and not an intention to
appropriate, own or even to become owner of it.116 The necessary intention is the intent to
exercise exclusive control over the thing for oneself.117 However, it is not required that the
squatter must intend to exclude the owner in all future circumstances.118 This position greatly
differs from South African prescription law, which requires the animus domini (intention of an
owner) to satisfy the possessio civilis requirement for acquisitive prescription.119 Interestingly,
even a squatter who mistakenly believes that she is the owner of the disputed land is able to
111
Powell v McFarlane (1979) 38 P & CR 452 471-472, quoted with approval in JA Pye (Oxford) Ltd v Graham
[2003] 1 AC 419 437 per Lord Browne-Wilkinson and per Lord Hutton at 488. See also Roberts v Swangrove
Estates Ltd [2008] Ch 439 para 79 per Mummery LJ; Wretham v Ross [2005] EWHC 1259 Ch paras 19, 25;
Topplan Estates Ltd v Townley [2004] EWCA Civ 1369 para 43 per Parker LJ; JA Pye (Oxford) Ltd and Another
v Graham and Another [2000] Ch 676 689; Buckinghamshire County Council v Moran [1990] Ch 623 641 per
Slade LJ.
112
113
Townley [2004] EWCA Civ 1369 para 40 per Parker LJ.
114
Townley [2004] EWCA Civ 1369 para 40 per Parker LJ. See also Wretham v Ross [2005] EWHC 1259 Ch para
20.
115
Powell v McFarlane (1979) 38 P & CR 452 472; Lambeth London Borough Council v Blackburn [2001]
EWCA Civ 912 para 19 per Clarke LJ.
116
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 436-437 per Lord Browne-Wilkinson; Wretham v Ross
[2005] EWHC 1259 Ch para 19; Topplan Estates Ltd v Townley [2004] EWCA Civ 1369 para 44 per Parker LJ;
Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 16 per Clarke LJ and per Judge LJ
at para 60; JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 689-690; Buckinghamshire
County Council v Moran [1990] Ch 623 643 per Slade LJ and per Nourse LJ at 646. Butler-Sloss agreed with
both Slade LJ and Nourse at 647. See also Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.53;
Jourdan S Adverse Possession (2003) para 9-07.
117
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 446 per Lord Hope of Craighead, quoted with approval in
118
Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 27 per Clarke LJ, expressly
disapproving on this point of Buckinghamshire County Council v Moran [1990] Ch 623, which is to the
contrary.
119
81
hold it animo possidendi.120 Although such a belief will also not terminate the requisite
intention for prescription in South African law, which must be animo domini, it is worth
emphasising that English law merely requires an intention to possess. 121 Nonetheless, even a
person who knows that the land belongs to another can obtain it through adverse possession,
since the fides of the squatter is irrelevant for purposes of establishing the animus
possidendi.122 The fides of the possessor is also irrelevant in the context of animus domini in
South African prescription law, which has only one prescription period for both good and bad
faith possessors.123
According to case law, equivocal acts by the squatter are unlikely to satisfy the animus
possidendi requirement.124 Therefore, the courts will not treat a squatter as possessing animo
possidendi if her acts are open to more than one interpretation.125 It must be unequivocal from
the squatters acts that she intended to exclude the owner as far as possible.126 Unfortunately,
few acts exist that are prima facie able to demonstrate the animus possidendi. Acts of this
nature include enclosures, as according to Cockburn CJ [e]nclosure is the strongest
possible evidence of adverse possession.127 To the same effect is Russell LJ, who stated that
[o]rdinarily, of course, enclosure is the most cogent evidence of adverse possession and of
dispossession of the paper owner.128 However, not even enclosure (on its own) will always
be conclusive.129
120
Roberts v Swangrove Estates Ltd [2008] Ch 439 para 87 per Mummery LJ. See also generally Hughes v Cork
[1994] EGCS 25.
121
See section 2.3.2.1.1 of chapter two above for the position in South African law.
122
123
124
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 447 per Lord Hutton; Wretham v Ross [2005] EWHC 1259
Ch para 21; Topplan Estates Ltd v Townley [2004] EWCA Civ 1369 para 41 per Parker LJ; Lambeth London
Borough Council v Blackburn [2001] EWCA Civ 912 para 20 per Clarke LJ; Buckinghamshire County Council
v Moran [1990] Ch 623 642 per Slade LJ; Powell v McFarlane (1979) 38 P & CR 452 472; Tecbild Ltd v
Chamberlain (1969) 20 P & CR 633 642 per Sachs LJ.
125
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 447 per Lord Hutton; Topplan Estates Ltd v Townley [2004]
EWCA Civ 1369 para 41 per Parker LJ; Powell v McFarlane (1979) 38 P & CR 452 472; Lambeth London
Borough Council v Blackburn [2001] EWCA Civ 912 paras 19-20 per Clarke LJ.
126
Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 20 per Clarke LJ; Powell v
McFarlane (1979) 38 P & CR 452 471-472 per Slade J. See also Smith RJ Property Law (6th ed 2009) 73.
127
Seddon v Smith (1877) 36 LT 168 169, quoted with approval in both Buckinghamshire County Council v
Moran [1990] Ch 623 641 per Slade LJ and in Powell v McFarlane (1979) 38 P & CR 452 478. See also
Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 paras 23-25 per Clarke LJ; Marshall v
Taylor [1895] 1 Ch 641 645 per Lord Halsbury.
128
George Wimpey & Co Ltd v Sohn [1967] Ch 487 511, quoted with approval in Lambeth London Borough
Council v Blackburn [2001] EWCA Civ 912 para 25 per Clarke LJ and in Buckinghamshire County Council v
Moran [1990] Ch 623 641 per Slade LJ. See also Smith RJ Property Law (6th ed 2009) 71.
129
Seddon v Smith (1877) 36 LT 168 169 per Cockburn CJ. See also generally Littledale v Liverpool College
[1900] 1 Ch 19; George Wimpey & Co Ltd v Sohn [1967] Ch 487. See further Harpum C, Bridge S & Dixon M
82
To plough up and cultivate agricultural land is also likely to satisfy the animus possidendi
requirement.130 To place a new lock and chain on the gate, for example, also unequivocally
points to the possessors intention to possess the land.131 A similar example is a possessor that
breaks the lock of a flat, replaces it with her own and then lives in the flat.132 To put up a
notice on the land that warns intruders to keep out together with actual enforcement of such
a notice is another act that can establish animus possidendi.133
It is worth repeating that the squatters acts must only be open to one interpretation, namely
that she has through her conduct made it clear that she intends to exclude the owner as far
as possible.134 The squatter must also make her intentions sufficiently clear or open so that an
owner, who exercises reasonable care, would have discovered such a squatter.135 This
corresponds to the nec clam (openness) requirement for prescription in South African law.136
The reason why the possessor must only exclude the owner as far as reasonably practicable
is because until such possessor obtains ownership through adverse possession she is not
able to use legal means to exclude the owner.137 Therefore, it will be sufficient if the possessor
intends to keep the owner out until the owner evicts her.138
A court is unlikely to find in the absence of sufficient evidence that the squatter intended
to assert a right to the possession of the land.139 This again emphasises the fact that factum
possessionis and animus possidendi are closely entwined and that it is indeed difficult to find
Megarry and Wade: The Law of Real Property (7th ed 2008) para 35-018; Smith RJ Property Law (6th ed 2009)
71.
130
Powell v McFarlane (1979) 38 P & CR 452 478. See also Seddon v Smith (1877) 36 LT 168.
131
& CR 452 478. See also Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 25 per
Clarke LJ.
132
Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 26 per Clarke LJ. See similarly
133
134
Powell v McFarlane (1979) 38 P & CR 452 472, quoted with approval in JA Pye (Oxford) Ltd v Graham
[2003] 1 AC 419 447 per Lord Hutton. See also Wretham v Ross [2005] EWHC 1259 Ch para 24; Topplan
Estates Ltd v Townley [2004] EWCA Civ 1369 para 73 per Parker LJ; Lambeth London Borough Council v
Blackburn [2001] EWCA Civ 912 para 19 per Clarke LJ. See also Smith RJ Property Law (6th ed 2009) 73.
135
Wretham v Ross [2005] EWHC 1259 Ch para 29; Powell v McFarlane (1979) 38 P & CR 452 480.
136
See section 2.3.2.3 of chapter two above.
137
Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 16 per Clarke LJ; Powell v
McFarlane (1979) 38 P & CR 452 471-472. See also Smith RJ Property Law (6th ed 2009) 73.
138
Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 17 per Clarke LJ.
139
Buckinghamshire County Council v Moran [1990] Ch 623 640 per Slade LJ.
83
a case in which there has been a clear finding of factual possession in which the claim to
adverse possession has failed for lack of intention.140 The intention to possess does not
require an intention to exclude the owner.141
Before the enactment of the 1980 Act, certain court cases seemed to establish a general
doctrine for one special type of case, namely where the acts of the squatter were not
inconsistent with the intentions of the owner pertaining to the future use of the land.
Consequently, the law would then imply a licence without sufficient justifying reasons in
favour of the would-be adverse possessor that permitted her to commit the acts of
possession performed on the land.142 This doctrine, also known as the special rule or
implied licence theory, only applied in one special type of case, namely where the acts of
the squatter did not substantially interfere with the plans the owners might have for the future
use of undeveloped land.143 In such a scenario, the effect of the implied licence would be to
prevent the squatter from possessing animo possidendi. However, paragraph 8(4) of Schedule
1 to the 1980 Act finally laid this debate to rest:
For the purpose of determining whether a person occupying any land is in adverse possession
of the land it shall not be assumed by implication of law that his occupation is by permission of
the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent
with the latters present or future enjoyment of the land. This provision shall not be taken as
prejudicing a finding to the effect that a persons occupation of any land is by implied
permission of the person entitled to the land in any case where such a finding is justified on the
actual facts of the case.
This provision abolishes the assumption that a squatters possession was by implied licence if
it fell within this special type of case. However, it does not affect situations that justify such a
finding on the facts before the Court. It follows that the intention of the owner regarding the
140
Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 36 per Clarke LJ, quoted with
approval in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 448 per Lord Hutton and approved by Lord Hope
of Craighead at 446. See also generally Wretham v Ross [2005] EWHC 1259 Ch paras 15, 20.
141
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 446 per Lord Hope of Craighead, quoted with approval in
Wretham v Ross [2005] EWHC 1259 Ch paras 20, 25 and in Topplan Estates Ltd v Townley [2004] EWCA Civ
1369 para 40 per Parker LJ.
142
Buckinghamshire County Council v Moran [1990] Ch 623 637 per Slade LJ. See also Walliss Cayton Bay
Holiday Camp Ltd v Shell-Mex & BP Ltd [1975] QB 94. For a discussion on the conceptual difficulties raised by
this doctrine, see especially Powell v McFarlane (1979) 38 P & CR 452 484 per Slade LJ. See further Smith RJ
Property Law (6th ed 2009) 75.
143
Buckinghamshire County Council v Moran [1990] Ch 623 637 per Slade LJ. As to the content of this
doctrine, see generally Treloar v Nute [1976] 1 WLR 1295; Walliss Cayton Bay Holiday Camp Ltd v Shell-Mex
& BP Ltd [1975] QB 94 and Leigh v Jack (1879) 5 Ex D 264. See also Powell v McFarlane (1979) 38 P & CR
452 484.
84
land today is still not wholly irrelevant.144 In this sense, Slade LJ in Buckinghamshire County
Council v Moran145 said the following:
If in any given case the land in dispute is unbuilt land and the squatter is aware that the owner,
while having no present use for it, has a purpose in mind for its use in the future, the court is
likely to require very clear evidence before it can be satisfied that the squatter who claims a
possessory title has not only established factual possession of the land, but also the requisite
intention to exclude the world at large, including the owner with the paper title, so far as is
reasonably practicable and so far as the processes of the law will allow. In the absence of clear
evidence of this nature, the court is likely to infer that the squatter neither had had nor had
claimed any intention of asserting a right to the possession of the land.146
The two preconditions for the application of Slade LJs observations are that:
i) the owner has a purpose in mind for the future use of the land, although she has
no present use for the land; and
ii) that the squatter has knowledge of this.147
Yet, even if a factual situation complies with both (i) and (ii), this may merely provide support
for a finding that the squatter did not intend to possess the land but only intended to occupy it
until needed by the owner.148 Lord Browne-Wilkinson thinks that there will be few scenarios
where one can draw such an inference if the owner is excluded from the land.149 As to whether
the squatters acts must be inconsistent with the intentions of the owner today, Lord Browne-
Wilkinson answered as follows:
The suggestion that the sufficiency of the possession can depend on the intention not of the
squatter but of the true owner is heretical and wrong. It reflects an attempt to revive the pre-
1833 concept of adverse possession requiring inconsistent user.150
As Nourse LJ is of much the same opinion in Buckinghamshire County Council v Moran,151

one can safely conclude that the intention of the owner has mostly become irrelevant in
144
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 691. See also Harpum C, Bridge S &
Dixon M Megarry and Wade: The Law of Real Property (7th ed 2008) para 35-019.
145
[1990] Ch 623.
146
Buckinghamshire County Council v Moran [1990] Ch 623 639-640, quoted with approval in JA Pye (Oxford)
Ltd and Another v Graham and Another [2000] Ch 676 691.
147
Hounslow London Borough Council v Minchinton (1997) 74 P & CR 221 229 per Millett LJ.
148
149
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 438 per Lord Browne-Wilkinson, followed in Topplan
Estates Ltd v Townley [2004] EWCA Civ 1369 para 45. See further Smith RJ Property Law (6th ed 2009) 73-75,
where it is said that [s]imply taking possession of [the owners] land will not justify implying a licence.
150
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 438 per Lord Browne-Wilkinson, quoted with approval in
Topplan Estates Ltd v Townley [2004] EWCA Civ 1369 para 45 per Parker LJ.
151
[1990] Ch 623.
85
practice, although it may possibly still have some influence in theory.152 It follows that there
is now no reason why the words possess and dispossess or similar expressions should not
be given their ordinary legal meaning in the context of the Act of 1980.153 Accordingly, one
must deduce the intention to possess from the possessors factum possessionis, since the law
requires unequivocal evidence before a possessor can establish the animus possidendi in the
context of the special type of case. Thus, the question simply boils down to whether the
possessor was in adverse possession.
In the recent decision of Beaulane Properties Ltd v Palmer, 154 Strauss QC attempted to
reintroduce the implied licence theory from before the 1980 Act.155 This approach is
unattractive, not only because it is in conflict with the decision of the House of Lords in JA
Pye (Oxford) Ltd v Graham,156 but also because it affords different meanings to adverse
possession in different contexts.157 After the Grand Chamber of the European Court of Human
Rights found adverse possession to be compatible with Article 1 of the First Protocol to the
Convention in JA Pye (Oxford) Ltd v United Kingdom,158 it is safer to simply regard Beaulane
as being of no more than historical value.
The last controversial aspect of the animus possidendi concerns the scenario where the
squatter may be willing or prepared to pay rent or take a tenancy should an owner request it.
This crucial issue was one of the main questions in the Pye decisions decided in the United
Kingdom. Lord Diplock provides the answer as follows:
152
Buckinghamshire County Council v Moran [1990] Ch 623 645 per Nourse LJ. See also Gray K & Gray SF
Elements of Land Law (5th ed 2009) para 9.1.5; Smith RJ Property Law (6th ed 2009) 75; Harpum C, Bridge S &
Dixon M Megarry and Wade: The Law of Real Property (7th ed 2008) para 35-019; Jourdan S Adverse
Possession (2003) para 9-78. To the contrary is Beaulane Properties Ltd v Palmer [2006] Ch 79 140 per Strauss
QC. See Dixon M Adverse Possession and Human Rights 2005 Conveyancer 345-351 for a discussion of the
Beaulane case.
153
Buckinghamshire County Council v Moran [1990] Ch 623 637 per Slade LJ. To the same effect is
Buckinghamshire County Council v Moran [1990] Ch 623 639-640 per Slade LJ and per Nourse LJ at 646. See
also Wretham v Ross [2005] EWHC 1259 Ch para 16.
154
Beaulane Properties Ltd v Palmer [2006] Ch 79.
155
Beaulane Properties Ltd v Palmer [2006] Ch 79 140. For a discussion of this case, see Radley-Gardner O
Pye (Oxford) Ltd v. United Kingdom: The View from England (2007) 15 European Review of Private Law
289-308 292-294; Dixon M Adverse Possession and Human Rights 2005 Conveyancer 345-351; Cloherty A
Heresies and Human Rights (2005) 64 Cambridge Law Journal 558-560.
156
It being described as a heresy: See [2003] 1 AC 419 438 per Lord Browne-Wilkinson.
157
Radley-Gardner O Pye (Oxford) Ltd v. United Kingdom: The View from England (2007) 15 European
Review of Private Law 289-308 294; Dixon M Adverse Possession and Human Rights 2005 Conveyancer 345-
351 350; Cloherty A Heresies and Human Rights (2005) 64 Cambridge Law Journal 558-560.
158
(2008) 46 EHRR 45 (GC).
86
Their lordships do not consider that an admission of this kind [willingness to pay rent or take a
tenancy], which any candid squatter hoping in due course to acquire a possessory title would be
almost bound to make, indicates an absence of the animus possidendi necessary to constitute
adverse possession.159
It is now trite law that a willingness of this kind, even where the squatter regards herself as a
tenant, will not negate the animus possidendi.160 This is because the animus possidendi
encompasses an intention to exclude everyone from the land, including the owner, but only as
far as it is possible for her to do so.161 Consequently, although an offer by the squatter to pay
rent or to take a tenancy amounts an acknowledgement of the owners title, such acts are not
inconsistent with possessing land animo possidendi.162 Indeed, Neuberger J states that [t]he
mere recognition of the owners ability, if he chooses to exercise it, to reclaim possession is
not an acknowledgement that the owner actually has possession.163 The position is wholly the
opposite in South African law. Should the squatter acknowledge the ownership of the owner
in South African prescription law in any way, such as by being prepared to pay rent if so
requested, she will no longer possess animo domini, since the intention will then simply be to
hold the land as a detentor and not of possessing it as owner. 164 Yet, such a willingness must
be clearly discernable from the possessors actions before it will terminate the animus domini
in South African law, since it is impossible to look into the mind of another.165
However, should the squatter request the owner to keep out other people, such request results
in an acknowledgement that the owner rather than the squatter is in possession, which will
159
Ocean Estates Ltd v Pinder [1969] 2 AC 19 24 per Lord Diplock, quoted with approval in JA Pye (Oxford)
Ltd v Graham [2003] 1 AC 419 438 per Lord Browne-Wilkinson and referred to with approval by Lord Hutton
at 448. Also quoted with approval in JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676
692 and in Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 34 per Clarke LJ and by
Judge LJ at para 60.
160
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 438 per Lord Browne-Wilkinson, quoted with approval in
Wretham v Ross [2005] EWHC 1259 Ch para 42. See also Lambeth London Borough Council v Blackburn
[2001] EWCA Civ 912 para 34 per Clarke LJ; JA Pye (Oxford) Ltd and Another v Graham and Another [2000]
Ch 676 692; Lodge v Wakefield Metropolitan City Council [1995] 2 EGLR 124 126; Ocean Estates Ltd v Pinder
[1969] 2 AC 19 24 per Lord Diplock. See also Gray K & Gray SF Elements of Land Law (5th ed 2009) para
9.1.48.
161
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 438 per Lord Browne-Wilkinson; JA Pye (Oxford) Ltd and
Another v Graham and Another [2000] Ch 676 693. See also Buckinghamshire County Council v Moran [1990]
Ch 623; Powell v McFarlane (1979) 38 P & CR 452.
162
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 438 per Lord Browne-Wilkinson; JA Pye (Oxford) Ltd and
Another v Graham and Another [2000] Ch 676 693.
163
164
Voet 44.3.9. See especially Sapphire Dawn Trading 42 BK v De Klerk and Others (693/2008) [2009]
ZAFSHC 11 (12 February 2009) para 9; Minister van Landbou v Sonnendecker 1979 (2) SA 944 (A) 945; Wood
v Baynesfield Board of Administration 1975 (2) SA 692 (N) 698; Morkels Transport (Pty) Ltd v Melrose Foods
(Pty) Ltd and Another 1972 (2) SA 464 (W) 467 477. See further section 2.3.2.1.1 of chapter two above.
165
87
negate the animus possidendi. 166 By contrast, an offer to pay rent is an offer to change the
basis upon which the squatter maintains possession; she still has possession and the animus
possidendi will be consistent with it.167 Consequently, the mere preparedness of a squatter to
take a licence or tenancy from the owner will not prevent such squatter from possessing animo
possidendi.168 This is because the informed squatter knows that she cannot lawfully exclude
the owner.169 However, it is possible for a squatter to express an offer in such a way that may
be able to terminate the animus possidendi.170 To summarise, if a squatter communicates a
preparedness to lease the land from the owner, this alone does not prevent the squatter from
possessing animo possidendi.171 However, this preparedness may impede the squatters ability
to prove that she possessed the land animo possidendi.172
When a squatter declares that she possessed the land animo possidendi, the law attaches little
evidentiary value to such oral evidence.173 This is because such evidence is capable of being
merely self-serving, while being difficult for an owner to refute.174 Thus, one must infer the
intention to possess from the squatters (unequivocal) actions,175 which is also the position in
South African prescription law to determine the presence of the animus domini.176
166
Pavledes v Ryesbridge Properties Ltd (1989) 58 P & CR 459 481, followed in JA Pye (Oxford) Ltd and
Another v Graham and Another [2000] Ch 676 693.
167
168
Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 para 34 per Clarke LJ; JA Pye
(Oxford) Ltd and Another v Graham and Another [2000] Ch 676 695; Lodge v Wakefield Metropolitan City
Council [1995] 2 EGLR 124 126; Ocean Estates Ltd v Pinder [1969] 2 AC 19 24 per Lord Diplock.
169
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 697; Lodge v Wakefield
Metropolitan City Council [1995] 2 EGLR 124 126; Ocean Estates Ltd v Pinder [1969] 2 AC 19 24 per Lord
Diplock. See also Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.48.
170
(Oxford) Ltd and Another v Graham and Another [2000] Ch 676 697.
171
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 697. See also Gray K & Gray SF
Elements of Land Law (5th ed 2009) para 9.1.48.
172
(Oxford) Ltd and Another v Graham and Another [2000] Ch 676 697; Lodge v Wakefield Metropolitan City
Council [1995] 2 EGLR 124 126; Ocean Estates Ltd v Pinder [1969] 2 AC 19 24 per Lord Diplock. See also
Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.48.
173
(Oxford) Ltd and Another v Graham and Another [2000] Ch 676 691; Powell v McFarlane (1979) 38 P & CR
452 476-477.
174
(Oxford) Ltd and Another v Graham and Another [2000] Ch 676 691; Powell v McFarlane (1979) 38 P & CR
452 476-477.
175
Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 paras 21, 46 per Clarke LJ;
CR 452 476-477; Tecbild Ltd v Chamberlain (1969) 20 P & CR 633 643 per Sachs LJ. See also Gray K & Gray
SF Elements of Land Law (5th ed 2009) para 9.1.55.
176
88
3.2.2.3.3 Postponement (suspension) and interruption of the running of

limitation
Postponement or extension of the limitation period, as opposed to interruption, occurs when
some impediment suspends the completion of the limitation period in the normal 12-year
period while said postponing impediment exists. One or more of the following grounds can
postpone the running of limitation in English law: disability, fraud, concealment or
mistake.177 Interruption, by contrast, ensues when a certain event stops the running of
limitation, after which it has to commence de novo.
Disability entails the situation where a person is a minor or lacks capacity to conduct legal
proceedings.178 If an owner suffers from a disability when the right of action accrues, she is
allowed an alternative period of six years to reclaim the property from the time when she
ceases to be under the disability or dies (whichever occurred first), irrespective of whether the
limitation period has expired.179 However, no possessor may bring an action for the recovery
of land after the expiration of 30 years from the date on which the right of action accrued to
the person who suffers from the disability or some person through whom she claims.180 It
follows that if a squatter takes possession of an owners land when that owner is a mental
patient, such owner then has 12 years from the date of the dispossession or six years from her
recovery to reclaim possession, whichever is longer.181 However, as mentioned above, the
owner cannot reclaim possession of land after the expiration of a period of 30 years from the
date of dispossession. An owners disability only postpones the running of limitation if it
existed before or on the date when the right of action accrued.182 Postponement will not take
place if the owners disability arose after the date of accrual.183
A further ground for postponement is fraud or deliberate concealment.184 The limitation

period will not begin to run where
177
Sections 28 and 32 of the Limitation Act 1980.
178
179
180
Section 28(4) of the Limitation Act 1980. See Harpum C, Bridge S & Dixon M Megarry and Wade: The Law
of Real Property (7th ed 2008) paras 35-04535-047 for a more complete discussion in this regard.
181
Example taken from Harpum C, Bridge S & Dixon M Megarry and Wade: The Law of Real Property (7th ed
2008) para 35-045.
182
183
184
89
i) the action is based on the fraud of the squatter; or

ii) any fact relevant to the owners right of action has been deliberately concealed
from her by the squatter.185
Under these circumstances, the limitation period will not commence until the owner has
discovered the fraud or concealment, or could have discovered it with reasonable diligence.186
Similar provisions apply to an action for relief from the consequences of a mistake.187
According to Harpum, Bridge and Dixon, [t]his rule has a narrow scope, and applies only
where the mistake is the gist of the action, i.e. where it is the mistake itself that gives a right to
apply to the court for relief.188
The LA provides as follows concerning the interruption or fresh accrual of limitation periods:
If the person in possession of the land ... acknowledges the title of the person to whom
the right of action has accrued
(a) the right shall be treated as having accrued on and not before the date of the
acknowledgment ...189
An acknowledgement of the owners title or ownership interrupts the running of the limitation
period, which causes the period to commence de novo. To institute a claim against the squatter
for repossession also interrupts the running of limitation, but only once final judgment is
given.190
An owners right to reclaim possession cannot be revived through an acknowledgement by the

squatter once it has been barred under the LA.191 Consequently, it is necessary to obtain
185
Section 32(1) of the Limitation Act 1980. See Harpum C, Bridge S & Dixon M Megarry and Wade: The Law
of Real Property (7th ed 2008) paras 35-04835-050 for a more complete discussion in this regard.
186
187
Section 32(1)(c) and 32(3)-(4) of the Limitation Act 1980.
188
See Harpum C, Bridge S & Dixon M Megarry and Wade: The Law of Real Property (7th ed 2008) para 35-050
for a more complete discussion in this regard.
189
Section 29(2)(a) of the Limitation Act 1980.
190
BP Properties Ltd v Buckler (1987) 55 P & CR 337 344 per Dillon LJ. See also Smith RJ Property Law
Cases and Materials (4th ed 2009) 90-91.
191
Section 29(7) of the Limitation Act 1980, read with section 15(1): See Ofulue v Bossert [2009] UKHL 16
para 69 per Lord Neuberger of Abbotsbury. See also Smith RJ Property Law Cases and Materials (4th ed
2009) 90-91. In Sapphire Dawn Trading 42 BK v De Klerk and Others (693/2008) [2009] ZAFSHC 11 (12
February 2009), the Court held (in the context of South African law) that an acknowledgment of the owners
title after the 30-year prescription period has elapsed merely illustrates the mental state with which that property
was possessed during the running of prescription, which will be less than the requisite animus domini. See
90
clarity as to what acts constitute an acknowledgment. Section 30(1) of the LA provides that
[t]o be effective ... an acknowledgement must be in writing and signed by the person making
it. It seems that a written offer to purchase the land from the owner or to take a tenancy from
her constitutes such an acknowledgement.192 However, mere oral offers to purchase the land
from the owner or to request a licence to use the land are insufficient to constitute an
acknowledgment.193 An application by the squatter for some entry in the owners register of
title will also not be sufficient in this regard.194 Although these actions do not amount to an
acknowledgment, they may assist the contention that the squatter did not have the intention to
possess.195 Yet, the investigation as to whether there is sufficient animus possidendi is quite a
separate question from [whether] there is an acknowledgement such as to start time running
afresh.196 In South African law, it is uncertain which acts by the squatter constitute an
acknowledgment as well as whether it will be sufficient when made to the owners agent.197
An offer to purchase an interest even if made expressly subject to contract also amounts
to an acknowledgment of the owners title.198 Furthermore, an admission of title in the
defence199 and an offer in a letter can both amount to acknowledgments.200 However, if
defence was served more than 12 years before proceedings were brought, it will not be
regarded as an acknowledgement, since it does not amount to a continuing
acknowledgment.201 The effect of section 15 of the LA is that one cannot rely on a formal
record such as a conveyance or entry in the register after the expiration of 12 years of
adverse possession.202 Furthermore, an action that refers to the future such as a payment of
Sapphire Dawn Trading 42 BK v De Klerk and Others (693/2008) [2009] ZAFSHC 11 (12 February 2009) para
9, together with the discussion in section 2.3.2.1.1 of chapter two above.
192
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 696. See also generally Edginton v
Clark [1964] 1 QB 367.
193
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 696-697. See also Gray K & Gray
SF Elements of Land Law (5th ed 2009) para 9.1.49.
194
195
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 697. See also Gray K & Gray SF
Elements of Land Law (5th ed 2009) para 9.1.49.
196
Pavledes v Ryesbridge Properties Ltd (1989) 58 P & CR 459 480. See also JA Pye (Oxford) Ltd and Another
v Graham and Another [2000] Ch 676 696.
197
See the discussion of the animus domini requirement in section 2.3.2.1.1 of chapter two above.
198
Ofulue v Bossert [2009] UKHL 16 para 76 per Lord Neuberger of Abbotsbury, relying on Edginton v Clark
[1964] 1 QB 367.
199
This includes a statement in a pleading or statement of case or any other court document: See Ofulue v
Bossert [2009] UKHL 16 para 79 per Lord Neuberger of Abbotsbury.
200
Ofulue v Bossert [2009] UKHL 16 para 77 per Lord Neuberger of Abbotsbury.
201
202
91
rent in advance only stops time running up to the date it occurs.203 If the squatter
acknowledges the owners title in a document headed without prejudice, such document
does not amount to an acknowledgement of title, since it will normally be excluded from
evidence.204
3.2.2.3.4 Adverse possession in relation to leasehold land

Adverse possession in the case of leasehold land has been refined in English law, which
necessitates a brief discussion of this topic.205 There are three main categories in this context,
namely adverse possession
i) by the tenant against her landlord;

ii) by the tenant against a third party; or
iii) against the tenant herself.206
It is trite law that the tenants possession of the leased premises cannot be adverse as long as
the lease persists, since the tenant occupies the premises with the consent of the landlord.207
When a tenant encroaches on land of a third party, which falls in the second category, the law
regards her adverse possession as operating in favour of the landlord in reversioner.208
Therefore, the tenant under these circumstances acquires title on behalf of the landlord.209
As to the final category, a person that claims to have obtained title to freehold land subject to
a lease must prove adverse possession for the requisite period against both the tenant and the
landlord.210
203
See Schedule 1, paragraph 5(2) of the Limitation Act 1980 and Ofulue v Bossert [2009] UKHL 16 para 81
per Lord Neuberger of Abbotsbury.
204
Ofulue v Bossert [2009] UKHL 16 paras 91, 101 per Lord Neuberger of Abbotsbury.
205
As this forms an entire subcategory to the law of adverse possession that is not relevant for purposes of this
dissertation, the discussion in this regard will be brief. For a more detailed discussion, see Gray K & Gray SF
Elements of Land Law (5th ed 2009) paras 9.1.589.1.71.
206
See generally Gray K & Gray SF Elements of Land Law (5th ed 2009) paras 9.1.58-9.1.71.
207
Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.60. It is possible for a landlord to adversely
possess against her own tenant: See Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.60.
208
Tower Hamlets London Borough Council v Barrett [2006] 1 P & CR 9 paras 26-30, 90 per Neuberger LJ. See
also Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.62; Smith RJ Property Law (6th ed 2009)
82.
209
210
92
3.2.2.3.5 Aggregation of periods of adverse possession (coniunctio

temporum)211
Immediately consecutive periods of possession may be aggregated to establish title through
adverse possession, as long as the period of adverse possession is continuous.212 This is also
the position in South African law.213 Yet, successive possessors can only aggregate their
periods of possession if the periods of adverse possession were strictly continuous.214 If a
second squatter takes adverse possession of land initially abandoned by a previous adverse
possessor, the second squatter cannot add to her own possession the period established by
the first adverse possessor.215 It speaks for itself that to aggregate successive periods of
adverse possession, consecutive squatters must satisfy all the requirements for adverse
possession. If this is not the case, the break in adverse possession will restore the owners title
to its pristine force.216 A first squatter may also transfer her possession to a second squatter
through delivery, who will then continue the period of limitation.217 It seems that this may
even be the case in situations where the second squatter dispossesses the first squatter,
although English law is not clear in this regard.218
3.2.3 The Pye case: The three United Kingdom decisions

3.2.3.1 Introduction
Since the substantive requirements for English adverse possession law prior to the enactment
of the LRA were already discussed, this section focuses on one of the most recent and
controversial cases regarding adverse possession, namely the Pye case.219 As this case was
taken on appeal twice, with each court taking a different view on especially the animus
211
For an extensive discussion in this regard, see Jourdan S Adverse Possession (2003) paras 6-366-46.
212
Allen v Matthews [2007] 2 P & CR 21 para 85 per Lawrence Collins LJ. See also Gray K & Gray SF
Elements of Land Law (5th ed 2009) para 9.1.4; Smith RJ Property Law (6th ed 2009) 77.
213
See section 2.3.1 of chapter two above.
214
Allen v Matthews [2007] 2 P & CR 21 para 85 per Lawrence Collins LJ. See also Gray K & Gray SF
Elements of Land Law (5th ed 2009) para 9.1.4; Smith RJ Property Law (6th ed 2009) 77-78.
215
Schedule 1, paragraph 8(2) of the Limitation Act 1980. See further Gray K & Gray SF Elements of Land Law
(5th ed 2009) para 9.1.4; Jourdan S Adverse Possession (2003) para 6-37.
216
217
Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.4; Jourdan S Adverse Possession (2003) para
6-37.
218
Jourdan S Adverse Possession (2003) para 6-40.
219
The three decisions are JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676, JA Pye
(Oxford) Ltd v Graham [2001] Ch 804 and JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419. The two further
decisions decided by the European Court of Human Rights in Strasbourg are reported as JA Pye (Oxford) Ltd v
United Kingdom (2006) 43 EHRR 3 (IV) and JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC).
These two decisions by the European Court of Human Rights are discussed in section 5.3.2.4.2 of chapter five
below.
93
possidendi requirement, it is preferable to discuss each decision on its own. This discussion
does not include the judgments by the Fourth and Grand Chambers of the European Court of
Human Rights, as indicated earlier, since these decisions do not affect the substantive
requirements for adverse possession in English law.220 These two judgments are dealt with in
chapter five, which specifically focuses on the constitutional aspects of prescription or
adverse possession.
3.2.3.2 The facts

Because the facts were not in dispute, one can divide the period of occupation by the Grahams
into different stages. This aids the discussion as to how the different courts dealt with the
question of adverse possession and specifically the animus possidendi.
JA Pye (Oxford) Ltd (Pye) was the registered owner of land (the disputed land) that
until 31 December 1983 the Grahams, who owned property adjacent to the disputed land,
occupied under a grazing agreement. Pye had fully enclosed the disputed land with hedges
and it was only accessible, except by foot, through a gate kept padlocked by the Grahams.
They also had the keys in their possession. On 30 December 1983, Pye instructed the
Grahams to vacate the land, as the grazing agreement was about to expire. This was the first
stage.
Pye expressly refused to renew the grazing agreement for 1984, as it did not want anyone to
graze the land while it applied for planning permission. Despite this refusal, the Grahams
remained in occupation and continued to use the land. In June 1984, Pye agreed to sell to them
the standing crop of grass on the land, which cut was completed by 31 August 1984. This was
the second stage.
Further requests from the Grahams in December 1984 and again in May 1985 to renew the
grazing agreement or to take cuts of grass went unanswered. The Grahams continued to
occupy and maintain the land, which they from then on farmed as a unit with their adjoining
property. After these requests, the Grahams did not attempt to make contact with Pye again
and intended to use the land until requested not to do so. They did this with the hope that a
220
See section 3.2.2.3 above.
94
further agreement would be forthcoming later. Therefore, from 1 September 1984 until 1998,
the Grahams continued to use the whole of the disputed land for farming without Pyes
consent. Pye performed no acts on the disputed land during that time. Indeed, nothing was
done by or on behalf of Pye on the land from 1 January 1984 onwards. In 1997, Mr Graham
registered cautions at the Land Registry against Pyes title on the basis that he obtained title
through adverse possession. Pye sought cancellation of the cautions in the High Court by
April 1998 and issued proceedings, brought in January 1999, seeking repossession of the land.
This period from September 1984 to January 1999 constitutes the third stage.
The Grahams contested the claims under the 1980 Act, which, as seen from the discussion
above, bars action to recovery of land after 12 years of adverse possession. The Grahams also
relied on the Land Registration Act 1925, which provides that after the expiry of the 12-year
limitation period, the registered owner is deemed to hold the land in trust for the squatter until
that squatter is registered as owner at the Land Registry.
At first instance in the High Court, JA Pye (Oxford) Ltd and Another v Graham and
Another,221 Neuberger J found that the Grahams satisfied all the requirements for adverse
possession and gave judgment in their favour. Nevertheless, he lamented the injustice
caused in this instance by the application of the law (as it then stood) of adverse possession
regarding registered land.222
In the Court of Appeal, JA Pye (Oxford) Ltd v Graham,223 Mummery LJ, with Keene and Sir
Martin Nourse LJJ concurring, found that the Grahams did not have the necessary animus
possidendi and overturned the decision of the High Court. The matter then went to the House
of Lords in JA Pye (Oxford) Ltd v Graham,224 where Lord Browne-Wilkinson who gave
judgment on behalf of the majority found that the Grahams did have the requisite intention
to possess and, as a result, overturned the Court of Appeals decision and so restored the High
Courts judgment. However, the House of Lords also emphasised its lack of enthusiasm for
arriving at this apparent unjust result.225 As the animus possidendi requirement was the
221
[2000] Ch 676.
222
See JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 709-710.
223
[2001] Ch 804.
224
[2003] 1 AC 419.
225
See JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 426 per Lord Bingham of Cornhill.
95
main point of contention throughout the three decisions, the focus now falls on how these
courts differed in their approach regarding this requirement.
3.2.3.3 The three Pye decisions: Different approaches to animus possidendi

3.2.3.3.1 JA Pye (Oxford) Ltd and Another v Graham and Another226 (High
Court decision)
The High Court identified three central issues for purposes of its decision:
i) Did the Grahams enjoy adverse possession of the disputed land between 1
January 1984 and 20 January 1999?
ii) If so, when did the period of adverse possession commence?
iii) When did the period of adverse possession end?227
Of these three questions, only the first two are relevant to the discussion. Nonetheless, this
section addresses each of these questions individually.
The High Court held that a squatter who claims adverse possession must show that he
satisfied each of the following requirements for the whole duration of the 12 year period,
namely that:
i) the squatter was in factual possession of the land;

ii) that he had the intention to possess the land (animus possidendi); and
iii) that his possession of the land was adverse in terms of the LA.228
The question regarding factual possession was whether the Grahams ha[ve] been dealing
with the land in question as an occupying owner might have been expected to deal with it and
that no one else has done so.229 Since the Grahams farmed the disputed land as a unit with
their own property (Manor farm), the Court found that the Grahams did enjoy factual
226
[2000] Ch 676.
227
228
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 689, following Buckinghamshire
County Council v Moran [1990] Ch 623 636 per Slade LJ.
229
Powell v McFarlane (1979) 38 P & CR 452 471, applied in Buckinghamshire County Council v Moran
[1990] Ch 623 641 per Slade LJ and followed in JA Pye (Oxford) Ltd and Another v Graham and Another
[2000] Ch 676 703.
96
possession of the land.230 This was because the Grahams went beyond what the old grazing
agreement allowed them to do on it, together with the fact that the Grahams controlled all
vehicular access and egress to and from the land by having the keys to the gates.
Before discussing the reasoning behind the animus possidendi requirement, I briefly address
the issue of adverse possession. As to the adverse element of adverse possession, it
merely requires [the squatter] to show that his possession was not pursuant to a licence, a
tenancy, or some other grant from the owner, whether express or implied.231
The Court relied on the following dictum by Slade J to ascertain the meaning of animus
possidendi:
What is really meant, in my judgment, is that the animus possidendi involves the intention, in
ones own name and on ones own behalf, to exclude the world at large, including the owner
with the paper title ... so far as is reasonably practicable and so far as the processes of the law
will allow.232
Neuberger J identified four issues that related to the content of this intention before he
decided the animus possidendi question. The first was what precisely the squatters intention
needs to reflect. The Court relied on the authoritative case of Buckinghamshire County
Council v Moran233 to answer this question, where Slade LJ held that the required intention
entails an intention for the time being to possess the land to the exclusion of all persons,
including the owner with the paper title.234
The second question pertained to the weight attached to the intention of the owner concerning
the disputed land.235 The Court referred to the abrogation of the implied licence theory,236 as
well as to the disapproval of it in Buckinghamshire County Council v Moran.237 Although the
230
231
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 694. This is in line with the meaning
of adverse, as discussed in section 3.2.2.3.1 above.
232
Powell v McFarlane (1979) 38 P & CR 452 471-472.
233
[1990] Ch 623.
234
Buckinghamshire County Council v Moran [1990] Ch 623 643 per Slade LJ, followed in JA Pye (Oxford) Ltd
and Another v Graham and Another [2000] Ch 676 690.
235
236
Schedule 1, paragraph 8(4) of the Limitation Act 1980.
237
[1990] Ch 623 639 per Slade LJ and per Nourse LJ at 645.
97
Court agreed that the implied licence theory was no longer in force, it stressed the fact that
this did not imply that the intention of the owner regarding the land was now irrelevant.238
The third question concerned the value of statements, as opposed to actions, by the squatter.
Neuberger J accepted that declarations by the squatter as to his past and present intentions
may provide evidence of the absence of the animus possidendi, while he emphasised the fact
that such declarations were of little evidential value and that [i]n general, intent has to be
inferred from the acts themselves.239 The deciding factor, therefore, is whether one could
positively discern the animus possidendi from the squatters actions.
The fourth question considered the effect of the squatter being prepared or keen to pay rent or
to take a tenancy, if the owner requested it.240 The Court relied on Ocean Estates Ltd v
Pinder, 241 where the Privy Council said that it [did] not consider that an admission of this
kind ... indicates an absence of the animus possidendi necessary to constitute adverse
possession.242 Neuberger J also cited Lodge v Wakefield Metropolitan City Council243 to
strengthen this point, where the Court of Appeal held that even if the squatter believed
himself still to be paying rent ... such a belief ... would have no relevance.244 According to
Neuberger J, this approach is consistent with the legal position and he distinguished the case
before him from the decision in R v Secretary of State for the Environment, Ex parte
Davies.245 In that case Neill LJ decided that if the squatter declared that he was prepared to
pay rent, such declaration would prevent the squatter from possessing animo possidendi.246
Neuberger J found that if that case was not distinguishable it must be incorrect, as it did not
refer to the Ocean Estates case247 mentioned above, which was a Privy Council decision.248 In
238
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 691, following Buckinghamshire
County Council v Moran [1990] Ch 623 639-640 per Slade LJ.
239
Tecbild Ltd v Chamberlain (1969) 20 P & CR 633 643 per Sachs LJ, followed in JA Pye (Oxford) Ltd and
Another v Graham and Another [2000] Ch 676 691-692. See also Powell v McFarlane (1979) 38 P & CR 452
476-477.
240
241
[1969] 2 AC 19.
242
[1969] 2 AC 19 24 per Lord Diplock, quoted in JA Pye (Oxford) Ltd and Another v Graham and Another
[2000] Ch 676 692.
243
[1995] 2 EGLR 124.
244
[1995] 2 EGLR 124 126 per Balcombe LJ, with whom Pill LJ and Sir Roger Parker LJ agreed. This is
followed in JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 692.
245
(1990) 61 P & CR 487. Distinguished in JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch
676 692.
246
(1990) 61 P & CR 487 496 per Neill LJ.
247
[1969] 2 AC 19.
248
98
light of this reasoning, Neuberger J concluded that an offer to the owner by the squatter to
pay rent or take a tenancy is not inconsistent with the animus possidendi. 249 Furthermore, the
Court held that if a squatter orally communicates this preparedness to the owner it would not
on its own prevent time from running in the occupiers favour.250 However, Neuberger J
emphasised that the owner may invoke this state of affairs to assist a contention that the
squatter did not possess animo possidendi.251
The Court relied on seven factors when it had to determine whether the Grahams possessed
the disputed land animo possidendi:252
i) Actual activities carried out by the squatter during the limitation period. It is
plain that the Grahams put the disputed land to use after the expiration of the
grazing agreement, which qualified as factual possession.253
ii) The nature and history of the land concerned. Although the Grahams used the
disputed land in the past, they used it in a much wider sense than for mere grazing
after the expiration of the grazing agreement.254
iii) The question of enclosure and access. Although the Grahams did not enclose the
land themselves, the Court held that this fact did not count against them.255 The
main factor was that it was the Grahams, and not Pye, that controlled all vehicular
access to and egress from the land.256
iv) The attitude which the squatter manifests to the land more generally. The
Grahams did not merely benefit from the land on a short-term basis, they looked
after it and used it as one would have expected of an owner who occupied it.257
v) The circumstances under which the squatter allegedly began adversely possessing
the land. Neuberger J found that for the duration of the grazing and hay-cutting
agreements, the Grahams could not have possessed the land animo possidendi,
nor would their possession have been adverse.258 However, in January 1984 Pye
249
250
251
252
For a more detailed discussion, see JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676
704-710.
253
254
255
256
257
258
99
refused to grant another grazing licence. The Court held that this express refusal,
as well as the later requests by the Grahams to renew the agreement which Pye
ignored clearly negates any argument that the Grahams would use the land
under an implied licence from that moment.259 Neuberger J found that the
Grahams had the animus possidendi from then onwards, especially since they
intended to carry on using the land for grazing until requested not to do so.260
Although the hay-cutting agreement would have negated this intention, the Court
decided that after the expiration of that isolated grant to take a cut of hay by the
end of August 1984, the Grahams definitively possessed the land animo
possidendi.261
vi) The intentions of the owner of the land in so far as the squatter was aware of
them. Although the Grahams knew that Pye had no immediate use for the land
and that they hoped to obtain planning permission in the future, Neuberger J held
that the law does not require the Grahams to realise that their use of the land was
not inconsistent with Pyes intentions.262 Accordingly, the Court held that the
future intentions of Pye regarding the disputed land, as far as they were expressly
or impliedly communicated to the Grahams, did not assist Pyes case.263
vii) The expressed and unexpressed intentions of the squatter, as far as they are
invoked to assist the squatter, are of very limited assistance. Mr Graham said in
his draft witness statement that he hoped a further grazing licence would be
forthcoming in 1984 and after receiving no replies to his 1985 inquiries gave up
trying and wanted to see if the plaintiffs contacted him.264 In the light of the
Ocean Estates case265 discussed earlier, the Court concluded that these
communications were not inconsistent with the Grahams having the intention to
possess and, therefore, from 31 August 1984 they had the animus possidendi. 266
The focus now briefly shifts to the question of when the period of adverse possession
commenced, since it was not contested throughout the other cases. It was clear that the
Grahams possession could not have been adverse during the duration of the grazing and hay-
259
260
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 683, 706.
261
262
263
264
265
[1969] 2 AC 19.
266
100
cutting agreements, as these licences prevented their possession from being adverse.267
Although it was not clear when precisely the hay-cutting agreement expired (between the end
of June and 20 September 1984), the Court accepted that the correct date from which time
began to run in favour of the Grahams was 1 September 1984.268
The High Court gave considerable attention to the question of when the period of adverse
possession ended.269 In the light of this issue becoming moot in the Court of Appeal and
House of Lords decisions, this chapter assumes for the sake of simplicity that time
stopped running when Pye instituted proceedings for reclaiming possession on 20 January
1999.270
According to Neuberger J, the findings under each of the above seven points constituted clear
evidence that the Grahams had the animus possidendi.271 Accordingly, the Court held that the
Grahams satisfied all the requirements for adverse possession and were therefore entitled to
be registered as the owners of the disputed land in the Land Registry.272 Despite this
conclusion, Neuberger J ended his judgment by stating that this was a conclusion at which he
arrived with no enthusiasm.273
3.2.3.3.2 JA Pye (Oxford) Ltd v Graham274 (Court of Appeal decision)

The Court of Appeal divided the issues on appeal into two categories, namely:
i) whether the Grahams possessed the disputed land animo possidendi; and
ii) the effect of the Human Rights Act 1998.
The focus of this inquiry falls only on the first category for purposes of the current discussion,
as the second issue is addressed in chapter five.275
267
268
269
270
If the limitation period commenced on 31 August 1984, it would already have expired by 1997. See also JA
Pye (Oxford) Ltd v Graham [2003] 1 AC 419 430 per Lord Browne-Wilkinson and JA Pye (Oxford) Ltd v
Graham [2001] Ch 804 810 per Mummery LJ.
271
272
273
274
[2001] Ch 804.
275
See section 5.3.2.4.2 of chapter five below.
101
Pye did not appeal against the High Courts findings of primary fact pertaining to the
Grahams actual use of the disputed land. The appeal concerned the interpretation (by that
court) of the facts that related to the question of animus possidendi.276 The Court of Appeal
was of much the same mind as the High Court concerning the adverse possession
requirement and stated that possession is never adverse if it is enjoyed under a lawful title or
licence.277
The Court of Appeal relied on the same definition for animus possidendi as quoted above and
emphasised that the law does not require a squatter to establish an intention to own or even
an intention to acquire ownership of the land.278 However, after this the Court diverged from
the reasoning adopted by the High Court by identifying three factors relating to the intention
to possess that were especially relevant, namely:
i) the owners intentions;

ii) the statements of intention; and
iii) oral offers of the squatter.279
Regarding (i), the Court of Appeal acknowledged that for purposes of adverse possession
one has to look to the intention of the squatter, but emphasised the fact that the intentions of
the owner were not irrelevant.280 In terms of (ii), Mummery LJ held that declarations by the
squatter as to his intentions may provide compelling evidence that he did not possess animo
possidendi, though he also said that such declarations are of little evidentiary value when they
relate to the squatters apparent exclusive possession.281 Concerning (iii), the [e]vidence that
the squatter is willing to pay rent to the paper title owner during the relevant period, or to take
a tenancy from him, may be relevant to ascertainment of the squatters intention to possess
276
JA Pye (Oxford) Ltd v Graham [2001] Ch 804 813 per Mummery LJ.
277
278
JA Pye (Oxford) Ltd v Graham [2001] Ch 804 812 per Mummery LJ, following Buckinghamshire County
Council v Moran [1990] Ch 623 643 per Slade LJ.
279
280
JA Pye (Oxford) Ltd v Graham [2001] Ch 804 812 per Mummery LJ, following Slade LJ in Buckinghamshire
County Council v Moran [1990] Ch 623 639-640. In my view, this overemphasises the importance of the
owners intention.
281
JA Pye (Oxford) Ltd v Graham [2001] Ch 804 812 per Mummery LJ, following Powell v McFarlane (1979)
38 P & CR 452 476 and Tecbild Ltd v Chamberlain (1969) 20 P & CR 633 643 per Sachs LJ.
102
the land; but the squatters statements to that effect do not necessarily constitute admission by
him that he lacked the requisite intention to possess ...282
The Court of Appeal attached considerable weight to the grazing agreement of 1 February
1983, which it described as an important document and as constituting a contemporaneous
and irrefutable record of the common intention of Pye and the Grahams regarding possession
of the disputed land.283 Consequently, it created a personal licence for the Grahams to go
onto and use the disputed land for the specified purposes, since Pye was anxious to avoid
giving possession of it to the Grahams.284 The parties plainly did not intend that the Grahams
should have exclusive possession of the disputed land.285 Accordingly, the Court of Appeal
held that [t]his point is relevant to the ascertainment of the probable intentions of the parties
regarding the continued use of the disputed land after the grazing agreement expired.286
Mummerys LJ focus then shifted to the seven factors used in the High Court, which led
Neuberger J to find that the Grahams did have the intention to possess.287 The Court of
Appeal criticised this approach, as it significantly underestimated the importance of
uncontradicted direct evidence, which in the view of Mummery LJ led to the incorrect
conclusion that the Grahams had the animus possidendi.288 After rejecting this reasoning by
the High Court, the Court of Appeal gave eight reasons to justify the conclusion that the
Grahams did not have the intention to possess the disputed land.289 These reasons may be
summarised as follows:
i) The question of the Grahams intentions at the relevant time is one of fact.290
282
JA Pye (Oxford) Ltd v Graham [2001] Ch 804 812 per Mummery LJ, relying on Ocean Estates Ltd v Pinder
[1969] 2 AC 19 24 per Diplock 24, Lodge v Wakefield Metropolitan City Council [1995] 2 EGLR 124 126 and
comparing them to R v Secretary of State for the Environment, Ex parte Davies (1990) 61 P & CR 487 496.
283
284
285
286
JA Pye (Oxford) Ltd v Graham [2001] Ch 804 815 per Mummery LJ. If one interprets this dictum as meaning
exclusive [factual] possession, it cannot be correct, as factual possession is a question of fact, not intention.
However, if one reads it as meaning exclusive [ordinary] possession, that is likely to be correct, since the
agreement will clearly negate any intention to possess that the Grahams could have had. Nevertheless, it is
questionable whether one should attach such weight to an agreement after it expired concerning the parties
intentions regarding the disputed land. This matter was one of the key points of criticism in the decision of the
House of Lords: See section 3.2.3.3.3 below.
287
288
289
JA Pye (Oxford) Ltd v Graham [2001] Ch 804 817 per Mummery LJ. Although nine reasons were given, only
eight of them are relevant for purposes of this discussion.
290
103
ii) Like other facts, a state of mind must be proven.291 The evidence in this instance
may take different forms, such as oral or written evidence as to the occupation as
well as the squatters use of the land.292
iii) The Court of Appeal held that the High Court, by finding an intention to possess,
was wrong in making inferences from circumstantial evidence. According to
Mummery LJ, it is the unchallenged evidence of the Grahams that counts against
them.293
iv) On the expiration of the grazing agreement in December 1983, the Grahams use
of the disputed land was potentially adverse.294 Pye expressly refused to enter into
another agreement and, therefore, the use of the land by the Grahams ceased to be
permissive.295 However, according to Mummery LJ this reason alone was not
enough to constitute dispossession (or ordinary possession). The Court of Appeal
found that the crucial factor was whether there was any other relevant change
affecting the requirements of the 1980 Act and, if so, whether that change
constituted dispossession of Pye.296 In other words, the expiration of permission
alone was not enough to constitute dispossession, even though the Grahams from
then onwards used the land as an occupying owner would and that Pye could have
brought proceedings to evict them.297 It is doubtful whether this argument by the
Court of Appeal holds water, as the only factor that prevented the Grahams from
being in adverse possession during the grazing licence was the licence itself.
However, after the expiration of the license, Mummery LJ required a further
change before he could regard the Grahams as having dispossessed Pye. It is
hard to see how this approach can be in accordance with the law. This approach
by the Appeal Court was, in my opinion, correctly criticised by the House of
Lords.298
v) Nothing changed concerning the actual use of the land, except that the Grahams
no longer occupied the disputed land with the permission from Pye.299 Mummery
LJ found that both the nature and extent of the Grahams use of the land, which
291
292
293
JA Pye (Oxford) Ltd v Graham [2001] Ch 804 817-818 per Mummery LJ.
294
295
296
297
298
See JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 442-443 per Lord Browne-Wilkinson.
299
104
did not amount to factual possession of it during the period of licence, remained
the same.300 The correctness of this finding is also doubtful, as it is clear that the
only persons in factual possession of the land were the Grahams, since the factum
possessionis is a purely factual question. Factual possession cannot depend on a
licence; that can only affect the animus possidendi. Even though nothing changed
except that the licence came to an end, the fact that the Grahams continued using
the land must constitute factual possession. The House of Lord also addressed this
anomaly.301
vi) Mummery LJ continued this line of argument and held that as in the case of (v)
the Grahams intention regarding the land also did not change after the
expiration of the licence.302 The Court of Appeal did not for one moment consider
that the Grahams possession could, but for the licence, amount to full legal
possession. It seems as if the Court of Appeal required an intention of an owner,
instead of the intention to possess, even though it earlier found that this was not
needed.303 Mummery LJ based this finding on the evidence that Graham was
using the land until requested not to.304 It was also clear that, had Pye requested
him, he would happily have paid.305 It appears as if the Court of Appeal
conveniently attached no value to the evidence produced by Graham, since it
stated that he took advantage of the ability to use the land as no one challenged
[him] ...306
vii) Grahams statement regarding his state of mind, together with the licence and the
fact that (after the expiration of the licence) they continued to use the land in the
same way was not that of a person who is using the land with the intention of
possessing it to the exclusion of Pye.307 The Court of Appeal then said the
following:
[The Grahams state of mind] is that of a person who, having obtained the
agreement of Pye to the limited use of the land in the past, continues to use
it for the time being in exactly the same fashion in the hope that in the
300
301
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 442-443 per Lord Browne-Wilkinson.
302
303
304
305
306
307
105
future Pye will again be willing to accede to his requests to enter an

agreement authorising him to use it.308
The crux of this argument is indeed nothing other than an implied licence.
Mummery LJ held that the Grahams never did anything more than they would
have been allowed under an implied grazing licence. However, it is clear that the
owners intention alone cannot be truly decisive, even though the Grahams knew
of Pyes intention regarding the land.309 In my opinion the Court of Appeal erred
by placing far too much emphasis on Pyes intention. Mummery LJ also ignored
the fact that Pye expressly refused to renew the grazing agreement. This nullifies
the argument that the Grahams intention did not change after the expiration of
the grazing licence. The House of Lords also voiced criticism in this regard.310
viii) The Court of Appeal also found that there was no direct evidence that the
Grahams changed their intentions regarding the use of the land after the end of
August 1984.311 After the expiration of the licence, the Grahams merely continued
to use the land in the same fashion, which use was of a limited nature and without
the animus possidendi.312 Mummery LJ based this finding on the fact that after 31
August 1984, the Grahams did not do anything on the disputed land that they
could not have done under the grazing agreement.313 As indicated above, this
argument is founded on an implied licence, for which there can be no justification
on the facts. It seems that Mummery LJ attached too much weight to the
undisputed evidence of the Grahams, while such evidence is supposed to carry the
least weight when adjudicating an adverse possession case. The House of Lords
adopted a similar stance against the Court of Appeal in this instance.314
For these reasons, the Court of Appeal found the Grahams not to have had the intention to
possess the disputed land.
308
JA Pye (Oxford) Ltd v Graham [2001] Ch 804 819-820 per Mummery LJ.
309
See JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 438, where Lord Browne-Wilkinson held that [t]he
suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the paper
owner is heretical and wrong ...
310
311
312
313
314
106
3.2.3.3.3 JA Pye (Oxford) Ltd v Graham315 (House of Lords decision)

The main issue before the House of Lords, as before the Court of Appeal, was whether the
Grahams had the intention to possess the disputed land. The House of Lords accepted that, as
long as the Grahams occupied the disputed land with Pyes consent, they could neither have
dispossessed Pye nor obtained possession of the land.316 Therefore, adverse possession could
not commence in favour of the Grahams before the expiration of the hay-cutting agreement
on or about 31 August 1984.317 Consequently, the key question was whether the Grahams had
dispossessed Pye after 1 September 1984 for the duration of the 12-year period.318 In other
words, the issue to be decided was again whether the Grahams had the animus possidendi.
As to the requisite intention, Lord Browne-Wilkinson held that [i]t is hard to see how the
intentions of the paper title owner (unless known to the squatter) can affect the intention of
the squatter to possess the land.319 The House of Lords confirmed that the taking or
continuation of possession by the squatter with the consent of the owner does not constitute
dispossession or adverse possession.320 Furthermore, one cannot have possession without the
requisite intention, which intention must be deduced from the squatters acts.321 Thus, it is
worth reemphasising that factum possessionis and the animus possidendi, although closely
entwined, remain two separate elements to legal possession.322 In light of these findings, the
Grahams were plainly in factual possession before 30 April 1986.323
The House of Lords identified three main issues concerning the animus possidendi:
i) whether one must intend to own or to possess;

ii) whether the acts by the squatter must be inconsistent with the intentions of the
owner; and
iii) the willingness of the squatter to pay rent or take a tenancy, if asked.
315
[2003] 1 AC 419.
316
317
318
319
320
321
322
323
107
As to the intention to possess or to own, the House of Lords regarded the decision of
Buckinghamshire County Council v Moran324 to be correct, as it found that all that is required
is an intention to possess and not an intention to own or to acquire ownership.325 Lord
Browne-Wilkinson, like the judges in the two previous courts, also followed the formulation
by Slade J in Powell v McFarlane326 by requiring an intention, in ones own name and on
ones own behalf, to exclude the world at large, including the owner with the paper title if he
be not himself the possessor, so far as is reasonably practicable and so far as the processes of
the law will allow.327
In respect of the second question, the House of Lords held that [t]he suggestion that the
sufficiency of the possession can depend on the intention not of the squatter but of the true
owner is heretical and wrong ... [as] [i]t reflects an attempt to revive the pre-1833 concept of
adverse possession requiring inconsistent user.328 Lord Browne-Wilkinson strengthened this
position by stating that
[t]he highest it can be put is that, if the squatter is aware of a special purpose for which the
paper owner uses or intends to use the land and the use made by the squatter does not conflict
with that use, that may provide some support for a finding as a question of fact that the squatter
had no intention to possess the land in the ordinary sense but only an intention to occupy it until
needed by the paper owner.329
The House of Lords found that there would be few cases where one can draw such an
inference if the owner is not present on the land, although Lord Browne-Wilkinson
acknowledged that it remained possible.330
On the subject of the squatters willingness to pay rent or take a tenancy if asked, the House
of Lords approved of the High Court following Ocean Estates Ltd v Pinder,331 where it was
324
[1990] Ch 623.
325
Buckinghamshire County Council v Moran [1990] Ch 623 643 per Slade LJ, approved in JA Pye (Oxford) Ltd
v Graham [2003] 1 AC 419 436 per Lord Browne-Wilkinson.
326
(1979) 38 P & CR 452.
327
Powell v McFarlane (1979) 38 P & CR 452 471-472, approved in JA Pye (Oxford) Ltd v Graham [2003] 1
AC 419 437 per Lord Browne-Wilkinson.
328
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 438 per Lord Browne-Wilkinson, expressly disapproving of
Bramwell LJs heresy in Leigh v Jack (1897) 5 Ex D 264.
329
330
331
[1969] 2 AC 19.
108
held that such a declaration does not negate the animus possidendi.332 Lord Browne-
Wilkinson criticised the Court of Appeal for not attaching enough weight to that decision, as
he found that R v Secretary of State for the Environment, Ex parte Davies333 was wrongly
decided.334 The law only requires the squatter to possess the land, which means that it is
possible for the animus possidendi to co-exist with a willingness to pay the owner.335
The House of Lords identified a chain in the reasoning of the Court of Appeal, which led
Mummery LJ to find that the Grahams did not possess the land animo possidendi.336
According to Lord Browne-Wilkinson, this chain consists of the following three points:
i) the grazing agreement plainly did not give possession to the Grahams;
ii) after the expiration of the grazing and hay-cutting agreements, the Grahams
continued to use the land for grazing in the same way, which did not amount to
factual possession; and finally
iii) Mr Graham made admissions that negated his intention to possess.337
According to the House of Lords, each of these steps of reasoning is suspect.338 However,
Lord Browne-Wilkinson did not decide the first step, merely assuming that the Grahams did
not have possession during this time, in that the ... [grazing] agreement [was] inconsistent
with any clear distinction being drawn by the parties between possession on the one hand and
occupation without possession on the other.339
Pye asked the Grahams to vacate the disputed land when the grazing agreement expired.
Nonetheless, the Grahams did not adhere to this request and continued to use the land from 1
January 1984 onwards, as well as performing acts of a wider nature than those allowed under
the old grazing agreement.340 By continuing to use the land in and after 1984, the Grahams
332
Ocean Estates Ltd v Pinder [1969] 2 AC 19 24 per Diplock, followed in JA Pye (Oxford) Ltd and Another v
Graham and Another [2000] Ch 676 692 and approved in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 438
per Lord Browne-Wilkinson.
333
(1990) 61 P & CR 487.
334
335
336
337
338
339
340
109
not only occupied the land without Pyes permission, but they also did so in a way that was
contrary to the intentions of Pye regarding the future development of the land.341
In respect of the third point, the House of Lords criticised the Court of Appeal for being
selective in its choice of the evidence in Michael Grahams witness statement, relying only
on such evidence as was contrary to his interest.342 Instead, one has to look at the whole of
Mr Grahams evidence on this subject, which indicates that he indeed treated the disputed
land as his own.343 When viewed from this angle, it is clear that the Grahams occupied the
land animo possidendi, even though they were willing to pay rent or take a tenancy.344
Consequently, the House of Lords held the decision by the Court of Appeal to be incorrect.
According to Lord Browne-Wilkinson, it would lead to an anomalous state of affairs if one
accepts the reasons provided by the Court of Appeal. This is because the Court of Appeal
held that Pye was in possession of the disputed land, despite the fact that the Grahams were
the only persons who did anything on the land from 1984 to 1999.345 Consequently, the
House of Lords found that such a conclusion would be so unrealistic as to be an impossible
one.346 On these grounds, the reasoning that the Grahams did not have the animus possidendi
was, in my view, correctly rejected.347
The House of Lords for these reasons restored the decision of the High Court, which
found that the Grahams did indeed have the animus possidendi. 348 However, Lord Bingham
of Cornhill echoed the misgivings of Neuberger J at first instance for finding in favour of the
Grahams.349
This decision concluded the Pye saga in the United Kingdom, with the House of Lords opting
for a friendly interpretation of the animus possidendi requirement.350 Although the case
proceeded to the European Court of Human Rights, those decisions did not influence the
341
342
343
344
345
346
347
348
349
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 426 per Lord Bingham of Cornhill.
350
Van der Walt AJ Property in the Margins (2009) 180.
110
finding of substantive law requirements for adverse possession by the House of Lords.351
Chapter five discusses the latter two decisions, since it focuses on the constitutionality of
adverse possession or prescription.352
3.2.4 Adverse possession under the Land Registration Act 2002

The enactment of the LRA353 did not so much alter the substantive requirements for adverse
possession as that it provides procedural safeguards for owners of registered land. It put
mechanisms in place that protect owners of registered land from simply losing their land
through the limitation effect of adverse possession. According to Lord Hope of Craighead, a
much more rigorous regime has now been enacted in ... the Land Registration Act 2002 ...
[which makes] it much harder for a squatter who is in possession of registered land to obtain
title to it against the wishes of the proprietor.354 The LRA expressly alters the law of adverse
possession by providing that [n]o period of limitation under section 15 of the Limitation Act
1980 ... shall run against any person ... in relation to an estate in land ... the title to which is
registered.355 Thus, the 2002 Act creates a regime where the mere lapse of time no longer
extinguishes the rights of owners in registered land, because section 58(1) of the LRA
stipulates that the register now provides conclusive proof of registered title.356 Thus, English
law at present operates with a positive registration system, which guarantees the correctness of
their register. This section briefly discusses the protective mechanisms introduced by the
LRA, together with how difficult this Act makes it to acquire registered title through adverse
possession. It is worth reemphasising that the law of adverse possession regarding
unregistered land remains mostly the same as it was prior to the enactment of the LRA.
The first major alteration is that the LRA reduced the 12-year limitation period to 10 years in
respect of registered land.357 The 2002 Act stipulates that when a squatter has been in adverse
351
352
See section 5.3.2.4.2 of chapter five below.
353
The Act came into force on 13 October 2003 and is prospective in nature: See Ofulue v Bossert [2009] UKHL
16 and JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419.
354
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 446-447 per Lord Hope of Craighead and also per Lord
Bingham of Cornhill at 426.
355
356
Section 58(1) of the Land Registration Act 2002: If, on the entry of a person in the register as the proprietor
of a legal estate, the legal estate would not otherwise be vested in him, it shall be deemed to be vested in him as
a result of the registration.
357
Schedule 6, paragraph 1(1) of the Land Registration Act 2002. See also Schedule, 6 paragraph 13(1), which
determines that the period of adverse possession applicable to foreshore is 60 years.
111
possession of registered land for the requisite 10-year period, she may apply to the registrar at
the Land Registry to be registered as proprietor of the registered land.358 In this sense it is not
required that the land must have been registered throughout the entire period of adverse
possession.359 Since this only applies to registered land, a squatter is under no obligation to
make such an application if the land is unregistered. When the registrar receives an
application for registration from the squatter, she must give notice to the owner of the
registered land.360 In the case of leasehold land, the registrar must give notice to the proprietor
of any superior registered estate in the land.361 Once the registrar notifies the registered owner
of the squatters application for registration, such owner may object to the application.362 If
the registered owner objects to the squatters application, the squatter may make a further
application to be registered as the owner of the land after she remained in adverse possession
for an additional two years.363 If the squatter manages to remain in adverse possession for that
time, she may be entered in the register as the new owner of the land, irrespective of the
wishes of the owner.364
However, even if the registered owner objects to the squatters application, such squatter is
still entitled to be registered as the new owner if she can establish a 10-year period of adverse
possession, together with proving that she falls under one of three specific categories provided
by the LRA.365 The first category involves situations where it would be unconscionable, due
to estoppel, for the registered owner to attempt to dispossess the squatter.366 In other words, if
the squatter satisfies the requirements for proprietary estoppel, the owner is estopped from
averring her ownership and the squatter is then allowed to be registered as the new owner. The
second category entails the situation where the squatter is for some other reason entitled to
be registered as the owner of the land.367 According to Harpum, Bridge and Dixon, there are
no limitations as to what this other reason may be.368 Such a reason could entail the situation
358
Schedule 6, paragraph 1(1) of the Land Registration Act 2002.
359
360
Schedule 6, paragraph 2(1)(a) of the Land Registration Act 2002.
361
Schedule 6, paragraph 2(1)(c) of the Land Registration Act 2002.
362
363
364
Schedule 6, paragraph 7 of the Land Registration Act 2002.
365
366
Schedule 6, paragraph 5(2)(a)-(b) of the Land Registration Act 2002.
367
368
112
where a squatter, after having been in adverse possession for 10 years, can prove that she is
entitled to the land under the will or intestacy of a deceased owner.369
The third category concerns situations where the disputed land is adjacent to land belonging to
the squatter and where the exact boundary line between the two erven has not been
determined.370 The reason for this exception is that the register, although providing conclusive
proof of title, is normally not conclusive as to boundaries.371 Should the squatter, under these
circumstances, have reasonably believed that the disputed land belonged to her, she is entitled
to be registered as the new owner.372 This requirement seems to have imported good faith into
English adverse possession law, since the requirement of reasonably believed is analogous
to the test for determining the presence of bona fides in some civil law systems.373
Interestingly, it seems that what is required in this context is possession with the intention of
an owner (animus domini), which is denoted by requiring the squatter to reasonably believe
that the adjacent piece of land belongs to her.374 Nonetheless, this good faith requirement is
confined to adverse possession in the limited instances of boundary disputes.
The Pye case is a clear-cut illustration of the injustices that can occur in a system where the
requirements for adverse possession are not too difficult to satisfy, as well as where the
legislature does not afford enough protection to owners. Yet, as I indicate in the next
chapter,375 the arguments for the abolition of adverse possession concerning registered land
seem only to apply in systems where the register provides conclusive proof of title. In this
context, the English land register is now to the same effect through section 58(1) of the LRA
as the German Grundbuch, which also deems the register to provide conclusive proof of title
or ownership.376 Nonetheless, civil-law based jurisdictions without a positive registration
369
370
Schedule 6, paragraph 5(4)(a)-(b) of the Land Registration Act 2002.
371
See section 58 of the Land Registration Act 2002 and Harpum C, Bridge S & Dixon M Megarry and Wade:
The Law of Real Property (7th ed 2008) para 35-083.
372
Schedule 6, paragraph 4, read with paragraph 5(4)(a)-(c) of the Land Registration Act 2002. Schedule 6,
paragraph 4(d) determines that the land to which the application relates must have been registered more than one
year prior to the date of such application.
373
See especially the discussion of Dutch prescription law in section 3.3.2.2.2 below. I am indebted to Dr
Waring for discussions that helped me form this opinion.
374
To the contrary is Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.30.
375
Chapter four below.
376
For the position in German law, see section 3.5 below.
113
system, such as South African,377 Dutch and French law employ other mechanisms that
protect owners from easily losing ownership through prescription. By requiring owners to
possess land animo domini, coupled with longer prescription periods, the law ensures that
owners do not lose ownership through mere inattention or by accident.378 However, English
law affords less protection to landowners in pre-LRA adverse possession law,379 where the
requisite form of intention is mere animus possidendi, coupled with a reasonably short 12-year
limitation period. Consequently, the focus now turns to the requirements for prescription in
Dutch and French law, together with how it operates in German law.
3.3 Dutch law

3.3.1 Introduction
Dutch law unlike its South African counterpart is a codified legal system, which means
that all law is primarily contained in either the Civil Code (Burgerlijk Wetboek or BW) or
in additional legislation. The BW regulates Dutch prescription law, since it codified this field
of law. This stands in contrast to the two prescription acts in South Africa, which do not
codify South African prescription law.380
BW 3:99-3:106 regulates acquisitive prescription or verkrijgende verjaring, while BW 3:306-

3:325 pertains to extinctive prescription. Snijders and Rank-Berenschot refer to extinctive
prescription as being of zwakke werking (weak effect), as it concerns only the extinction of
claims.381 Since Dutch extinctive prescription is of zwakke werking, it follows that acquisitive
prescription is of sterke werking (strong effect), as the latter involves the acquisition of
ownership.382 For this reason acquisitive and extinctive prescription are dealt with in different
377
Although South Africa has a mixed legal system, South African property law is nearer to the civil-law
tradition than to English common law.
378
This position in South African prescription law is discussed in section 2.3.2.1.1 of chapter two above. For the
position in Dutch and French law, see sections 3.3.2.2.1 and 3.4.2.1 respectively below.
379
Since the Land Registration Act 2002 only applies to registered title in land, the protective mechanisms do
not extend to owners of unregistered land.
380
For instance, see Pienaar v Rabie 1983 (3) SA 126 (A) 135 and Bisschop v Stafford 1974 (3) SA 1 (A) 7.
This issue is discussed more fully in section 2.3.1 of chapter two above.
381
Snijders HJ & Rank-Berenschot EB Goederenrecht (4th ed 2007) para 247; Mijnssen FHJ et al Mr C Assers
Handleiding tot de Beoefening van het Nederlands Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht
(15th ed 2006) para 424; Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 329; Van
Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3 419, 940.
382
Snijders HJ & Rank-Berenschot EB Goederenrecht (4th ed 2007) para 248.
114
parts of the BW.383 However, these two concepts can overlap in some instances, as in cases
regarding the extinction of the owners legal claim towards her property after 20 years.384
This discussion focuses on the major aspects of Dutch acquisitive prescription law, while
some regard is also had to the provisions regarding extinctive prescription. This section pays
special attention to the distinction between bona and mala fide possessors for purposes of
prescription, since the fides of the possessor determines the period required for acquiring
ownership through verkrijgende verjaring.385 This is interesting from a South African
perspective, because South African prescription law attaches no legal consequences to the
fides of the possessor, as both good and bad faith possessors are able to acquire ownership in
land after possessing it possessio civilis for 30 years.386
3.3.2 Verkrijgende verjaring (acquisitive prescription)

The main provisions in the Burgerlijk Wetboek relating to acquisitive prescription are BW
3:99.1 and BW 3:105.1, read with BW 3:306. BW 3:99.1 reads as follows:
Rechten op roerende zaken die niet-registergoederen zijn, en rechten aan toonder of order
worden door een bezitter te goeder trouw verkregen door een onafgebroken bezit van drie jaren,
andere goederen door een onafgebroken bezit van tien jaren.387
This provision provides for good faith acquisition of property through acquisitive
prescription. It sets the period at three years for non-registered movable property, together
with rights pertaining to bearer or order. The period required for all other property such as
immovable property and registered movable property is 10 years.388 It is only necessary to
focus on the acquisition of land through verkrijgende verjaring for purposes of this
discussion. BW 3:105.1 provides for bad faith acquisition of ownership through prescription:
383
Acquisitive prescription is dealt with in Book 3 title 4 (acquisition and loss of things) and extinctive
prescription in Book 3 title 11 (obligations).
384
BW 3:105.1, read with BW 3:306. See also Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed
2006) para 329.
385
See BW 3:99.1 for possession in good faith and BW 3:105.1, read with BW 3:306, for possession in bad
faith.
386
See sections 2.3.1 and 2.3.2.1.1 of chapter two above.
387
Rights pertaining to movables that are not registered and rights pertaining to bearer or order are acquired by
a possessor in good faith who possessed the property for an uninterrupted period of three years. For all other
property the prescription period of possession is 10 years.
388
BW 3:99.1 differentiates between unregistered and registered property. Certain movable property can be
registered under Dutch law: See Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening van het
Nederlands Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 427.
115
Hij die een goed bezit op het tijdstip waarop de verjaring van de rechtsvordering strekkende tot
beindiging van het bezit wordt voltooid, verkrijgt dat goed, ook al was zijn bezit niet te goeder
trouw.389
According to this provision, a possessor even when in bad faith acquires property the
moment the owners legal claim towards that property is extinguished.390 BW 3:306
determines the period required for possession in this context by stating that [i]f the law does
not state otherwise, an owners legal claim prescribes at the expiration of a period of 20
years.391
Mijnssen et al capture the essence of Dutch acquisitive prescription law against this
background:
Iemand aan wie een goed niet toebehoort, kan dit goed door verjaring verkrijgen indien hij
gedurende een door de wet bepaalde tijd bezitter van dat goed is geweest. In beginsel is vereist
dat het bezit te goeder trouw was. Ook bezit niet te goeder trouw kan echter tot verkrijgen door
verjaring leiden.392
A person who possessed property in good faith for the requisite period acquires ownership
ipso iure393 through verkrijgende verjaring. 394 Bad faith prescription in terms of BW
3:105.1 is also effected ipso iure, since authors regard it as being acquisitive in nature.395 It
follows that the effect of good and bad faith prescription in Dutch law is similar to that of
389
He who possesses property at the time when the owners legal claim towards that property is extinguished,
obtains that property, even though such persons possession might not have been in good faith.
390
The words legal claim towards the property must be interpreted widely, as including all remedies the owner
has to reclaim possession: See Snijders HJ & Rank-Berenschot EB Goederenrecht (4th ed 2007) para 254;
Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening van het Nederlands Burgerlijk Recht:
Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 431; Reehuis WHM & Heisterkamp AHT
Goederenrecht (12th ed 2006) para 344a; Van Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe
Burgerlijk Wetboek (1981) Book 3 419.
391
Indien de wet niet anders bepaalt, verjaart een rechtsvordering door verloop van twintig jaren. (If the law
does not state otherwise, an owners legal claim prescribes at the expiration of a period of 20 years.)
392
Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 423. (Someone to whom a res does not belong,
can obtain that res by way of prescription by possessing the res for a statutorily determined period of time. In
principle it is required that possession be bona fide. However, mala fide possession can also lead to acquisition
through prescription.) See also BW 3:99 and BW 3:105.1, read with BW 3:306.
393
By operation of law.
394
BW 99.1. See also Snijders HJ & Rank-Berenschot EB Goederenrecht (4th ed 2007) para 258; Mijnssen FHJ
et al Mr C Assers Handleiding tot de Beoefening van het Nederlands Burgerlijk Recht: Goederenrecht
Algemeen Goederenrecht (15th ed 2006) para 441; Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed
2006) para 347; Van Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981)
Book 3 414-415.
395
Goederenrecht (12th ed 2006) para 347; Van Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe
116
acquisitive prescription under section 2(2) of the Prescription Act 18 of 1943 in South
African law, which is also effected ex lege.396 Consequently, acquisitive prescription in Dutch
law is an original method of acquisition of ownership and therefore the possessor acquires the
property free of any encumbrance.397 It is unnecessary for a possessor to plead prescription in
court because she becomes owner of the property through operation of law.398
The possessor only acquires property through prescription once she satisfies all the
requirements for prescription.399 Since acquisitive prescription forms part of substantive
Dutch property law, it is impossible for parties to alter or waive it.400 However, it is possible
to waive extinctive prescription.401 Interestingly, a Dutch court must also take note of
acquisitive prescription mero motu, should it be justified on the facts.402
It follows that the requirements for prescription are uninterrupted possession which may be
either bona or mala fide over property for a certain period. All property, namely movables,
immovables and limited real rights, can be acquired through prescription.403 Property also
includes incorporeal property, such as a usufruct.404 Prescription under the new Burgerlijk
Wetboek plays a more important role than under the previous Civil Code, as the new
396
As soon as the period of thirty years has elapsed such possessor or user shall ipso jure become the owner of
the property ...
397
(15th ed 2006) paras 424, 441.
398
(15th ed 2006) para 441; Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 347.
399
As contained in BW 99.1 or BW 3:105.1, read with BW 3:306.
400
(15th ed 2006) paras 424, 441; Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 347; Van
Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3 414-415, 419.
401
BW 3:322.2-3. See also Van Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek
(1981) Book 3 414.
402
Snijders HJ & Rank-Berenschot EB Goederenrecht (4th ed 2007) para 258; Reehuis WHM & Heisterkamp
AHT Goederenrecht (12th ed 2006) para 347; Van Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe
Burgerlijk Wetboek (1981) Book 3 414, 419. This position is different from South African law, where section
17(1) of the Prescription Act 68 of 1969 expressly stipulates that courts shall not mero motu take notice of
prescription. See further section 2.3.1 of chapter two above.
403
BW 3:99.1. See also Snijders HJ & Rank-Berenschot EB Goederenrecht (4th ed 2007) para 247; Mijnssen
FHJ et al Mr C Assers Handleiding tot de Beoefening van het Nederlands Burgerlijk Recht: Goederenrecht
Algemeen Goederenrecht (15th ed 2006) para 427; Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed
Book 3 408.
404
Snijders HJ & Rank-Berenschot EB Goederenrecht (4th ed 2007) para 247.
117
prescription periods are notably shorter while persons can now acquire both movable and
immovable property through prescription.405
The main justification for prescription under Dutch law is as in South African law the
promotion of legal certainty.406 Consequently, it is in the interest of legal certainty to afford
de iure status to long-existing de facto situations.407 Chapter four discusses this topic in
greater detail.408
Apart from the two main categories of prescription in BW 3:99.1 and BW 105.1, read with
BW 3:306, another type of prescription appears in BW 3:106. This latter form of prescription
regulates the extinction of beperkte rechten (limited real rights).409 Interestingly, verkrijgende
verjaring does not extinguish limited real rights conferred on property by the possessor while
she still clocks up time.410 Although the possessor is not entitled to burden the property
with such rights (as she was not the owner at that time), those rights become effective with
retrospective effect from the moment possession was obtained because Dutch law regards the
possessor as becoming owner of the property with retrospective effect.411 Therefore, a
405
Snijders HJ & Rank-Berenschot EB Goederenrecht (4th ed 2007) para 247. The periods required for good and
bad faith prescription under the previous Civil Code was 20 and 30 years respectively: See BW 2000 (old) and
BW 2004 (old). Under the previous Civil Code, persons could not acquire movables through prescription. The
provisions of the new BW regarding prescription only came into operation on 1 January 1993: See Mijnssen FHJ
et al Mr C Assers Handleiding tot de Beoefening van het Nederlands Burgerlijk Recht: Goederenrecht
Algemeen Goederenrecht (15th ed 2006) para 444. For a discussion pertaining to the law applying to prescription
periods that commenced before this date, see Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening
van het Nederlands Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 444. This
latter issue falls outside the scope of this dissertation and is therefore not discussed here.
406
Goederenrecht (12th ed 2006) paras 329, 347; Van Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe
Burgerlijk Wetboek (1981) Book 3 136. For the justifications in South African law, see section 4.2.3 of chapter
four below.
407
(15th ed 2006) para 423; Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 330; Van
Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3 417, 919. This
point is further investigated in section 4.2.4 of chapter four below.
408
409
This provision deals specifically with the extinction of servitudes. This section does not discuss the
acquisition or extinction of servitudes through prescription in Dutch law, since prescription pertaining to
servitudes falls outside the scope of this dissertation.
410
(15th ed 2006) paras 441-442; Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 348; Van
Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3 415.
411
118
mortgage registered over the property by the possessor remains in force after such possessor
acquired the property through prescription.
3.3.2.2 Requirements for acquisitive prescription

3.3.2.2.1 Bezit (possession)
A person must possess property for prescription to commence.412 Continuous possession for
the duration of the set period results in the acquisition of that property through prescription.
Although the Burgerlijk Wetboek does not expressly mention the fact, the right in property
that the possessor acquires is, in fact, ownership.413
BW 3:107 defines possession or bezit as follows:
(1) Bezit is het houden van een goed voor zichzelf.

(2) Bezit is onmiddellijk, wanneer iemand bezit zonder dat een ander het goed voor hem
houdt.
(3) Bezit is middellijk, wanneer iemand bezit door middel van een ander die het goed voor
hem houdt.
(4) Houderschap is op overeenkomstige wijze onmiddellijk of middellijk.414
Possession requires a person to hold (houden) property for herself (zichzelf). Thus, Dutch law
also recognises that possession comprises two elements, namely factual possession (houden)
of property, and the necessary intention of holding for zichzelf. One can translate zichzelf as
meaning for oneself and it entails an intention to possess as owner, or animo domini.415
Therefore, the law requires a possessor to possess the property as if owner.416 This is in line
(15th ed 2006) paras 441-442; Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 348; Van
Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3 415.
412
BW 3:99.1; BW 3:105.1. See also HR 3 May 1996, NJ 1996, 501. See further Mijnssen FHJ et al Mr C
Assers Handleiding tot de Beoefening van het Nederlands Burgerlijk Recht: Goederenrecht Algemeen
Goederenrecht (15th ed 2006) para 428.
413
Goederenrecht Algemeen Goederenrecht (15th ed 2006) paras 441-442.
414
(1) Possession is the holding or detention of a res for oneself.
(2) Possession is outright or direct when a person possesses a res that is not held for him by another.
(3) Possession is indirect when a person possesses a res held on his behalf through another.
(4) Holdership or detention is either direct or indirect.
415
This is clear from HR 7 March 1980, NJ 1980, 549. See also Van Vliet LPW Creation in Van Erp JHM
(ed) Ius Commune Case Book (forthcoming 2012) 124. I am indebted to Dr van Vliet for allowing me to cite his
draft chapter in my dissertation.
416
Compare this to section 1 of the Prescription Act 68 of 1969 of South Africa, which also requires a person to
possess as if owner. The as if owner requirement in South African law is discussed in section 2.3.2.4 of
chapter two above.
119
with the animus domini element that forms part of possessio civilis in South African
prescription law.417
Whether someone has possession is a factual question and has to be decided on the facts.418
Factors for determining possession include, inter alia, the nature of the property, the way
physical control is exercised and the manner in which possession was acquired.419 Once a
person holds property, such person is deemed as holding it for herself.420 A person obtains
possession by taking possession, through transfer or through succession under general
title.421
Possession may either be held outright or directly (onmiddellijke bezit),422 or indirectly

(middellijke bezit), such as through an agent.423 Both types of possession are sufficient for
purposes of prescription. Parties such as agents, lessees and commodatii424 do not qualify as
possessors, as their intention is merely to hold on behalf of the principal and not for
themselves.425 Consequently, they qualify as holders (detentores) and not as possessors.426
Since the agent possesses on behalf of the principal and not herself, it is the principal who
acquires the property held by the agent through prescription, as possession is attributed to
her.427 As long as the agent holds the property on behalf of the principal and not for herself,
she cannot acquire the property through prescription.428
417
418
BW 3:108, which provides that to establish whether someone is holding property for herself or for another
must be determined according to the common opinion (verkeersopvatting), while also taking into account the
relevant law and facts. See also Warendorf H et al The Civil Code of the Netherlands (2009) 466, who translate
verkeersopvatting as common opinion.
419
BW 3:108.
420
BW 3:109.
421
BW 3:112: [I]nbezitneming, door overdracht of door opvolging onder algemene titel. (The taking of
possession occurs through taking possession, through transfer or through succession under general title.) See
also Warendorf H et al The Civil Code of the Netherlands (2009) 467.
422
This is where someone personally possesses a thing, without making use of an agent: See BW 3:107.2.
423
BW 3:107.3 and 3:107.4. Indirect possession, or middellijke bezit, is when someone possesses a thing through
another, such as an agent.
424
Loan for use (bruikleen).
425
BW 3:107. See also Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening van het Nederlands
Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 428a.
426
For instance, see HR 18 November 2005, NJ 2006, 150. See also Van Vliet LPW Creation in Van Erp JHM
(ed) Ius Commune Case Book (forthcoming 2012) 124.
427
Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 428a; Reehuis WHM &
Heisterkamp AHT Goederenrecht (12th ed 2006) para 337.
428
Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 428a; Reehuis WHM &
120
It is possible for an agent to qualify as possessor once the agency relationship ends.429
However, it is not possible for the agent to change the intention with which she holds the
property unilaterally.430 The law requires something more, such as when a lessee denies the
owners right of ownership.431 Prescription only commences in favour of the former agent on
the day after the one on which the agency relationship ends, namely the day after the former
agent obtains possession.432 A principal can also transfer possession to her agent if she
wishes.433
An agent cannot even acquire property with the aid of BW 3:105.1,434 since this provision
only stipulates that a possessor can acquire property at the expiration of the 20-year period.
Since the agent is merely a holder, she is unable to obtain possession, unless one of the
grounds in BW 3:111 is present. Consequently, not even a mala fide agent is able to acquire
property through BW 3:105.1.435
Under the previous Civil Code, the law required possession to also be openbaar (open) and
niet dubbelzinnig (unambiguous or unequivocal).436 These requirements were not included in
the new BW, since the decisive factor is now whether someone was in possession of the
property for the requisite period.437 The reason for this omission is that these requirements are
429
BW 3:111.
430
BW 3:111. See also HR 18 November 2005, NJ 2006, 150.
431
HR 18 November 2005, NJ 2006, 150.
432
BW 3:101.
433
Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 428b; Reehuis WHM &
434
This section provides for the extinguishment of the owners legal claim towards property.
435
See also Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening van het Nederlands Burgerlijk
Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 428a; Reehuis WHM & Heisterkamp
AHT Goederenrecht (12th ed 2006) para 337. If the Pye case was decided in the Netherlands, the Grahams
being mala fide because they knew that Pye was the owner would only have been able to acquire the disputed
land in terms of BW 3:105, which requires a 20 year period according to BW 3:306. Yet, even under these
circumstances, it is doubtful whether the Grahams would have been able to comply with the animus domini
required for possession in Dutch law. For a discussion of whether the Grahams would have succeeded in Dutch
law, see Milo JM On the Constitutional Proportionality of Property Law in the Netherlands (2007) 15
European Review of Private Law 255-263 261-262.
436
BW 1992 (old). See also Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening van het Nederlands
Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 428b.
437
BW 3:99, read with BW 3:108. BW 3:108 provides that to determine whether a person holds property for
herself or for another, one must have regard to the common opinion (verkeersopvatting) and the relevant law and
facts. See also Van Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book
3 408.
121
regarded as inherently forming part of possession.438 This is clear from a decision where the
Dutch Supreme Court found that a claimant could not succeed with a prescription claim
because his possession was equivocal.439 This approach is interesting from the perspective of
South African prescription law, where the 1969 Prescription Act expressly requires
possession to be open.440
The previous Civil Code also required possession to be voortdurend (continuous) and
ongestoord (undisturbed).441 The new Burgerlijk Wetboek omits these requirements, although
it is trite law that the loss of possession usually interrupts the running of prescription.442 A
possessor in this context can continue the running of prescription if she reclaims the
property within one year of the loss of possession, unless the person against whom she
institutes a claim for repossession has a stronger right towards the property.443 Involuntary
loss of possession does not interrupt prescription either, should the possessor regain
possession within one year, or if an action instituted within one year of such loss leads to the
regaining of possession.444 A possessor only loses possession if she knowingly or explicitly445
parts with it.446 Possession will also be lost if someone else obtains possession over the
property.447 The law regards possession as being continuous if none of these grounds are
present.448
The law deems the person in possession to be the owner of the property.449 However, BW
3:119.2 qualifies this presumption:
Ten aanzien van registergoederen wijkt dit vermoeden, wanneer komt vast te staan dat de
wederpartij of diens rechtsvoorganger te eniger tijd rechthebbende was en dat de bezitter zich
438
BW 3:99 and BW 3:108. See Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening van het
Nederlands Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 428b; Van Zeben
CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3 408.
439
HR 7 March 1980, NJ 1980, 549.
440
Section 1 of the Prescription Act 68 of 1969. See the discussion in section 2.3.2.3 of chapter two above.
441
BW 1992 (old).
442
BW 3:117. See Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening van het Nederlands
Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 428b; Reehuis WHM &
443
BW 3:125.1 and BW 3:125.2.
444
BW 3:103.
445
Kennelijk.
446
BW 3:117.1.
447
BW 3:117.1.
448
BW 3:117.2. See also Van Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek
(1981) Book 3 442.
449
BW 3:119.1. See also Warendorf H et al The Civil Code of the Netherlands (2009) 468.
122
niet kan beroepen op verkrijging nadien onder bijzondere titel waarvoor inschrijving in de
registers vereist is.450
A person takes possession of property through obtaining control over it.451 However, where
property was in the possession of another, the mere taking of control of that property on its
own is insufficient to constitute possession.452 BW 3:108 comes into play in this context and
provides that in order to establish whether a person holds property for herself, regard must be
had to the common opinion (verkeersopvatting),453 together with the relevant law and facts of
the case.454 Therefore, even if a non-owner attains control over property, there can only be a
taking of possession if according to common opinion the possession of the owner or
initial possessor has ended.455 This will only be the case if the owner or initial possessor
knowingly or explicitly abandons possession, or where another person acquires possession
from her.456
The law is reluctant to regard a dispossessor as having obtained possession, since

dispossession of land occurs to the owners detriment.457 It will have to be clear that the
owner no longer has possession and that it now vests in the dispossessor.458 Take the
example459 where A is the owner of a small field adjacent to her house. Should As neighbour
(B) cut the grass on the field at certain intervals and think that the field forms part of her
property, this will not cause A to lose possession or for B to obtain it. The cutting of grass is
insufficient for B to dispossess A, since this act does not unequivocally demonstrate that B
has possession.460 However, should B fence off the field and lock the gate, causing A not
have access to the field, common opinion dictates that B has dispossessed A.
450
The presumption is set aside in respect of registered property, where it is established that another party or his
predecessor was the person who has title at any time and the possessor cannot invoke subsequent acquisition by
particular title requiring entry in the registers.: Warendorf H et al The Civil Code of the Netherlands (2009)
468. See also Van Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book
3 409.
451
452
BW 3:113.2.
453
Warendorf H et al The Civil Code of the Netherlands (2009) 466 translate verkeersopvatting as common
opinion.
454
See also Warendorf H et al The Civil Code of the Netherlands (2009) 466.
455
Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 335.
456
BW 3:117.1 and BW 3:117.2.
457
458
459
Example taken from Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 335.
460
As required by HR 7 March 1980, NJ 1980, 549.
123
It is also possible to obtain possession through transfer or delivery (bezitsoverdracht),461
which entails delivery of the thing to the transferee.462 Registration at the Land Registry is
required to effect delivery of land, which causes the transferee to obtain possession only after
registration took place.463 Should delivery be unsuccessful due to some defect such as
incapacity on the side of the transferor the transferee will still obtain possession, despite the
fact that she was not entitled to it.464 This is due to the requirements in BW 3:84.1, which
only pertain to the delivery and not the obtaining of possession.465 Possession in this context
can lead to the acquisition of ownership through BW 3:105.1, read with BW 3:306.
Prescription starts to run in favour of a possessor on the day after she obtained possession.466
A person can acquire land after 10 years possession in good faith,467 while a possessor in bad
faith only acquires ownership in land after 20 years.468
3.3.2.2.2 Bona fide (good faith) prescription

BW 3:118 defines good faith as:
(1) Een bezitter is te goeder trouw, wanneer hij zich als rechthebbende beschouwt en zich ook
redelijkerwijze als zodanig mocht beschouwen.
(2) Is een bezitter eenmaal te goeder trouw, dan wordt hij geacht dit te blijven.
(3) Goede trouw wordt vermoed aanwezig te zijn; het ontbreken van goede trouw moet worden
bewezen.469
A possessor is in good faith if she regards herself as entitled to the property, which belief
must also be reasonable.470 Bona fides only has to be present the moment a person obtains
461
BW 3:112.
462
BW 3:84.1, read with BW 3:90.1.
463
464
465
BW 3:84.1 provides as follows: Voor overdracht van een goed wordt vereist een levering krachtens geldige
titel, verricht door hom die bevoegd is over het goed te beschikken. (Warendorf H et al The Civil Code of the
Netherlands (2009) 460 translate this provision as follows: Transfer of property requires delivery pursuant to a
valid title by the person who has the right to dispose of the property.) See also Reehuis WHM & Heisterkamp
AHT Goederenrecht (12th ed 2006) para 335.
466
BW 3:101.
467
BW 3:99.1. This includes registered movable and immovable property, as well as proprietary rights. See also
(15th ed 2006) para 427; Van Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek
(1981) Book 3 408.
468
BW 105.1, read with BW 3:306.
469
(1) A possessor is in good faith if he reasonably regards himself as being entitled to the property.
(2) If a possessor is in good faith, he is deemed as remaining so.
(3) Good faith is deemed to be present, the absence of good faith must be proven.
124
possession, 471 since subsequent mala fides does not negate earlier good faith.472 Thus, it is
possible to acquire property through BW 3:99.1, even if a possessor later discovers that she is
not entitled to the property.473 Whether a person possessed property in good faith is
determined at the moment that she obtained possession. 474 Accordingly, a thief cannot qualify
as a possessor in good faith.475 Since the Burgerlijk Wetboek deems the presence of good
faith, the onus rests on a party averring its absence.
When someone obtains possession through transfer and such transfer was defective for some
reason,476 the transferee will not hold in good faith if she had known or should have known
of the existence of the defect.477 Accordingly, a transferee obtains possession in good faith
if she did not know, or ought not to have known, of the defect.478 Possible defects include
incapacity on the side of the transferor, absence of valid title479 or non-compliance with
registration for purposes of transferring land.480 Regarding the last-mentioned defect, one has
to distinguish between an error of law and an error of fact.481 BW 3:89 requires registration in
cases involving the sale of land. If registration did not occur because the transferee was
unaware of BW 3:89 (error of law), then she cannot be in good faith.482 However, if the buyer
(transferee) commissioned an attorney (a notary in Dutch law) to complete the registration
and the attorney neglects to do this (error of fact), then she can be bona fide.483
470
See also BW 3:11. For an application of this criterion, see HR 8 September 2000, NJ 2000, 629.
471
BW 3:118.2. For example, see HR 8 September 2000, NJ 2000, 629; HR 20 June 1997, NJ 1999, 301.
472
Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 338; Van Zeben CJ et al
Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3 408-410. This is in line with the
position in Roman law: See section 2.2.2 of chapter two above.
473
See also Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 338; Van Zeben CJ et al
Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3 408.
474
475
476
By, for instance, not complying with the requirements set out in BW 3:84.1.
477
BW 3:11. The defect should not have been easily discoverable: See Reehuis WHM & Heisterkamp AHT
478
BW 3:11; BW 3:118.1. See also Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 338.
479
HR 30 November 1945, NJ 1946, 49.
480
481
Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 430.
482
Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 430; Reehuis WHM &
483
Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 430; Reehuis WHM &
125
As seen above, BW 3:118.2 requires bona fides to be present the moment a person obtains
possession.484 Should the possessor later realise that someone else is the owner, this
knowledge will not negate the earlier bona fide possession.485 Consequently, the possessor is
still able to acquire ownership over the property through good faith prescription under these
circumstances. It is even possible for a possessor who was not initially in good faith to
become bona fide.486 The Dutch Supreme Court described this possibility as follows:
[D]at [is] [niet] uitgesloten dat een bezitter, die op het tijdstip waarop hij het bezit verkreeg
niet te goeder trouw was, op een later tijdstip ten aanzien van dat bezit alsnog te goeder trouw
wordt met als gevolg dat vanaf dit laatste tijdstip de gevolgen gelden die de wet aan het bezit te
goeder trouw verbindt.487
However, this change of fides does not operate retrospectively, since possession only starts to
be in good faith once the possessor becomes bona fide.488 In this scenario, the running of
prescription commences in favour of the possessor on the day after such possessor became
bona fide.489 One finds an example in situations regarding the transfer of land, where an entry
into the public register is required before possession can be bona fide.490 Once the possessor
has completed this registration process, her possession is regarded as bona fide.491 Although
this example is not fully correct from a legal point of view, it does help to clarify the
situation.492
484
Confirmed in HR 8 September 2000, NJ 2000, 629; HR 20 June 1997, NJ 1999, 301.
485
BW 3:118.2. For example, see HR 20 June 1997, NJ 1999, 301. See also Van Zeben CJ et al Parlementaire
Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3 408, 410.
486
HR 20 June 1997, NJ 1999, 301. See also Snijders HJ & Rank-Berenschot EB Goederenrecht (4th ed 2007)
para 252; Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening van het Nederlands Burgerlijk Recht:
Goederenrecht (12th ed 2006) para 338; Van Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe
487
HR 20 June 1997, NJ 1999, 301. ([I]t [is] [not] excluded that a possessor, who initially obtained
possession in bad faith, may at a later stage become a good faith possessor. Time will only start to run in his
favour as a bona fide possessor from the moment he obtained good faith.) See also HR 8 September 2000,
NJ 2000, 629.
488
HR 20 June 1997, NJ 1999, 301. See also Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening
van het Nederlands Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 430;
489
BW 3:101.
490
BW 3:89. For example, see HR 8 September 2000, NJ 2000, 629. See also Van Zeben CJ et al Parlementaire
Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3 412.
491
Van Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3 412.
492
Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 430 criticise this example because possession
cannot be transferred separately from the right. Since registration is required for the transfer of immovables,
according to BW 3:89.1, the buyer will not be able to possess the immovable property before the registration is
completed. Nonetheless, I use this example merely to illustrate the possibility of becoming bona fide at a later
stage.
126
Knowledge of the actual facts or law negates a possessors good faith.493 This is also the case
when a possessor is unaware of the facts or law, but ought to have been aware of them.494 The
law, under these circumstances, deems a possessor to have been aware of the facts or the law,
despite whether it is impossible to ascertain these aspects.495 When a person obtains
possession by dispossessing the owner, the law is reluctant to deem such a possessor as being
in good faith.496
When someone obtains possession through general or universal title (under the law of
succession, for instance), the law attributes the legal predecessors fides to the successor
irrespective of whether the latter was in good or bad faith.497 This is in line with the position
under Roman law.498 Hence, if the predecessor was in good faith, the successor is able to
acquire the property through good faith prescription under BW 3:99.1, even though the
successor may actually be in bad faith. Should the predecessor have been in bad faith, the
successor is despite her fides unable to acquire the property through BW 3:99.1. However,
it may still be possible for her to acquire the property through the provisions regulating bad
faith prescription, namely BW 3:105.1, read with BW 3:306.499
A possessor of land is in bad faith if she being unaware of the facts is able to ascertain the
true state of affairs by investigating the register.500 Such a possessor is, therefore, unlikely to
acquire land through good faith prescription, since good faith depends on consultation of the
registers.501 Nonetheless, the law does not automatically regard a possessor as being in bad
faith in the context of boundary disputes simply because she did not consult the cadastral
maps.502 The cadastral maps show the exact boundaries as determined by surveyors,
something that the public register does not do.503 Yet, non-investigation of the cadastral maps
could still amount to an absence of good faith even in instances where the actual boundaries
493
BW 3:11.
494
BW 3:11.
495
BW 3:11. See also Warendorf H et al The Civil Code of the Netherlands (2009) 434.
496
497
BW 3:116.
498
For the position in Roman law, see section 2.2.2 of chapter two above.
499
The 20-year period is laid down in BW 3:306.
500
BW 3:23.
501
The land can still be acquired through BW 3:105 if the possessor is mala fide, although the period of
prescription will then be 20 years, according to BW 3:306.
502
HR 20 February 1987, NJ 1987, 1002. See also Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed
Book 3 1095.
503
127
are uncertain.504 Scenarios where investigation by the possessor is less essential are contained
in BW 5:36, which provides the following:
Dient een muur, hek, heg of greppel, dan wel een niet bevaarbaar stromend water, een sloot,
gracht of dergelijke watergang als afscheiding van twee erven, dan wordt het midden van deze
afscheiding vermoed de grens tussen deze erven te zijn. Dit vermoeden geldt niet, indien een
muur slechts aan n zijde een gebouw of werk steunt.505
BW 3:100 creates an exception to BW 3:99.1 by disallowing the possibility of acquiring a

deceased persons estate through good faith prescription. It is only possible to acquire that
property after the owners legal claim to reclaim possession has expired.506
3.3.2.2.3 Mala fide (bad faith) prescription

According to BW 3:105.1, a possessor is able to acquire property possessed in bad faith once
the owners legal claim towards that property is extinguished through (extinctive) prescription
after 20 years.507 Consequently, a possessor becomes entitled to the property at the expiration
of the prescription period.508 A possessor is in bad faith when the possessor knows that the
thing in his possession does not belong to him.509
BW 3:99.1 requires the bona fide possessor to possess land for 10 years before she can
acquire it through verkrijgende verjaring. BW 3:105.1 does not require a possessor to possess
property for a certain period, but merely requires that property be possessed at the moment
the owners legal claim is extinguished. 510 Mijnssen et al are of the opinion that this type of
prescription is not acquisitive prescription in the formal sense, but rather a special type of
prescription.511 Nonetheless, many authors regard this form of prescription as being
504
505
Where a wall, fence, hedge, trench or non-navigable running water, ditch, canal or similar waterway serves
as a boundary between properties, the middle of this boundary is presumed to be the dividing line between these
properties. This presumption is rebutted if a wall supports a building or work only on one side. (Translation by
Warendorf H et al The Civil Code of the Netherlands (2009) 608.)
506
BW 3:105.1, read with BW 3:306.
507
BW 3:306.
508
(15th ed 2006) para 431.
509
HR 8 September 2000, NJ 2000, 629: [D]e bezitter kennis draagt dat de zaak, welke hij bezit, aan hem niet
in eigendom toebehoort. ([T]he possessor knows that the thing in his possession does not belong to him.)
510
See also Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 344a.
511
Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 431. To the contrary is Van Zeben CJ et al
128
acquisitive in nature.512 Thus, although the extinguishment of the owners right to reclaim the
property is an example of extinctive prescription, Dutch law confers full ownership on the
mala fide possessor the moment that the owners legal claim extinguishes.513 This type of
prescription is reminiscent of the effects of the year-and-a-day rule under Roman-Dutch
law.514
The prescription of the owners legal claim commences on the day after the one on which the
owner obtained the right to reclaim the property,515 or the day after which a person acquired
possession over the owners property.516 This type of prescription runs regardless of the time
the property remained in the hands of different possessors.517 In other words, the initial
possessor may transfer possession to a second possessor in the nineteenth year of the
prescription period. The new possessor then only has to possess the property for one year to
acquire ownership. The absence of good faith plays no role here, as no specific period has to
be satisfied.518 This is because this type of prescription runs against the owners legal claim
and not in favour of the possessor. BW 3:105.1 only applies to the person who possessed the
property at the time when the owners legal claim towards that property is extinguished. If the
possessor involuntarily loses possession of the property, but regains possession within one
year or through a legal action instituted within one year of such loss, the law deems her as
being the possessor for purposes of BW 3:105.1.519
3.3.2.2.4 The periods required for prescription

The possessor must have been in possession of the property for the full duration of the
prescription period for purposes of BW 3:99.1.520 The type of property determines the length
512
Snijders HJ & Rank-Berenschot EB Goederenrecht (4th ed 2007) paras 248, 254; Reehuis WHM &
Heisterkamp AHT Goederenrecht (12th ed 2006) para 344; Van Zeben CJ et al Parlementaire Geschiedenis van
het Nieuwe Burgerlijk Wetboek (1981) Book 3 416, 419.
513
This type of prescription is regarded as acquisitive in nature, which implies that the possessor acquires full
ownership of the property in question: See the sources cited in the previous footnote above.
514
515
BW 3:314.1.
516
BW 3:314.2.
517
518
519
BW 3:105.2.
520
BW 3:99.1 requires possession to be uninterrupted. See also Mijnssen FHJ et al Mr C Assers Handleiding tot
de Beoefening van het Nederlands Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006)
para 432.
129
of the prescription period. Rights to unregistered movable property,521 together with rights
vesting in the bearer or order of a cheque, can be acquired through prescription in three
years.522 The prescription period for land, which forms the focus of this dissertation, is 10
years.523 The three-year period for unregistered movables is analogous to that of usucapio
under Roman law, which also had a three-year period for movables.524
The reason that Dutch law has a 10-year period for land is because it views this period as
providing ample time for owners to enforce their rights.525 This position differs from South
African law, where a 30-year prescription period is required for acquiring ownership in
land.526 The running of prescription commences on the day after the one on which a person
obtained possession527 and is completed on the last day of the requisite period at 12 pm.528
The period for (extinctive) prescription, namely the extinction of the owners legal claim, is
set at 20 years.529
3.3.2.2.5 Coniunctio temporum (aggregation of prescription periods)

As under the 1969 Prescription Act of South Africa,530 the Burgerlijk Wetboek also provides
for coniunctio temporum:
Hij die een ander onder algemene titel in het bezit opvolgt, zet een lopende verjaring voort.531
BW 3:102.1 specifically provides for the aggregation of periods of possession between

predecessors and successors who succeeded one another under universal or general title. This
means that the successor is able to succeed the predecessor in her possession for purposes of
521
Niet-registergoederen.
522
BW 3:99.1.
523
BW 3:99.1.
524
Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 432; Van Zeben CJ et al Parlementaire
Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3 409. See further section 2.2.2 of chapter two
above.
525
526
527
BW 3:101.
528
529
BW 3:306.
530
531
BW 3:102.1: He who succeeds another under general title [under, for instance, succession law] regarding
possession, continues the running of prescription.
130
prescription. This type of succession is qualified, though, since a successor under algemene
titel (general or universal title) succeeds to the predecessors right of possession with all its
characteristics.532 Thus, if the predecessor was mala fide, the successor is deemed as also
being in bad faith, despite whether the successor may actually have been in good faith.533 It
follows that if the predecessor possessed in good faith, the successor is then despite her own
fides regarded as continuing possession in good faith.534 This is in accordance with the
position under Roman law, as seen in the historical overview in the previous chapter.535
BW 3:102.2 also provides for the aggregation of periods of possession:
Hetzelfde doet de bezitter te goeder trouw die het bezit van een ander anders dan onder
algemene titel heeft verkregen.536
One has to distinguish the acquisition of possession under general or universal title (as in the
law of succession) from that under specific title (as in the context of a sales agreement).537
The qualification found in BW 3:102.2 stipulates that the transferee can only continue the
prescription clocked up by the transferor if the transferee was bona fide. Should the transferee
later become aware of the true state of affairs, this does not negate her good faith.538 Thus, it
is clear that the fides of the transferor is irrelevant for purposes of BW 3:102.2.
Coniunctio temporum is irrelevant for purposes of BW 3:105.1, since this provision provides
for the extinction of the owners legal claim towards the property. Accordingly, the time that
the property in question spent in the hands of different possessors is immaterial when it comes
to the extinction of the owners legal claim, as discussed above.539
3.3.2.3 Interruption (stuiting) and postponement (verlenging) of prescription

532
BW 3:116. See also Warendorf H et al The Civil Code of the Netherlands (2009) 468.
533
2006) para 340a.
534
BW 3:102.1, read with BW 3:116. See also Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening
van het Nederlands Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 434;
Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 340a.
535
536
The same [as in BW 3:102.1] applies to the possessor in good faith, who obtains possession from another
in cases other than under general title.
537
Goederenrecht (12th ed 2006) para 340a.
538
BW 3:118.2.
539
See section 3.3.2.2.3 above.
131
3.3.2.3.1 Introduction
Certain events are capable of interrupting the running of prescription, causing prescription to
start running de novo. 540 Interruption (stuiting) occurs if the owner makes a claim towards the
property, the possessor loses possession of the property or if the possessor acknowledges the
rights of the owner.541
Should a postponing impediment (verlengingsgrond) be present during the running of

prescription, completion of the prescription period is postponed for six months after the
impediment has fallen away.542 This also applies to situations where prescription would have
completed within six months after the postponing impediment ceased to exist.543
Postponement is based on the widely accepted rationale that prescription ought not to run
against those who are incapable of managing their own affairs.544 The previous Civil Code
referred to postponement as schorsing (postponement in the true sense), which entailed that
prescription was postponed from completion as long as the postponing impediment existed.545
Verlenging (prolonging) replaced schorsing under the new Burgerlijk Wetboek in BW 3:320.
For ease of reference, I continue to refer to this notion as postponement, instead of using the
correct English translation, namely prolonging. BW 3:321, discussed below, contains the
grounds for postponement.
3.3.2.3.2 Interruption (stuiting) of prescription

Interruption can be either natural or civil.546 Natural interruption occurs when a possessor
loses possession of the property.547 In cases involving involuntary loss of possession (through,
for instance, theft or negligence), interruption does not take place under the following
circumstances:
i) if possession is regained within one year; or
540
BW 3:316-3:319.
541
BW 3:316.1, BW 3:117.1 and BW 3:318, read with BW 3:104.1.
542
BW 3:320.
543
BW 3:320, read with BW 3:104.1.
544
545
546
BW 3:117; BW 3:316. See also Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening van het
Nederlands Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) paras 438-439.
547
BW 3:117.
132
ii) if legal proceedings instituted within one year after the loss of possession leads
to the recovery of possession over the property.548
Should the possessor transfer possession under specific title to someone other than the owner,
prescription continues to run in favour of the transferee.549 Natural interruption is only
applicable to acquisitive prescription and does not apply to extinctive prescription.550
However, civil interruption may occur in the context of both acquisitive and extinctive
prescription.551
Civil interruption occurs when the owner asserts a legal claim towards the property, or lodges
a claim to regain possession of the property.552 It also occurs when the possessor obtains a
binding opinion and then realises that she is not owner.553 Interruption may also occur by way
of a letter of demand554 if the letter of demand is followed within six months by an act that
constitutes interruption as mentioned in BW 3:316.555
Should the owners claim to regain possession fail for whatever reason, BW 3:316.2 provides
that prescription will only be interrupted if the owner within a period of six months after
judgment was given against her institutes a new claim that leads to judgment against the
possessor.556 If the owner abandons her claim, prescription will not be interrupted.557
Acknowledging the rights of the owner in any way, including conduct by the possessor,558
548
BW 3:103. This position is remarkably similar to current South African prescription law: See section 2.3.3 of
chapter two above.
549
BW 3:102.2.
550
The type of prescription in BW 3:105.1 only provides for the extinction of the owners legal claim towards
the property. Therefore, it does not matter for what length of time a person was in possession, for she acquires
that property the moment the owners legal claim prescribes. Interruption does therefore not play any role in this
regard. BW 3:105.2 provides that if a person who possessed property in terms of BW 3:105.1 involuntarily loses
possession and the period of prescription expires, she will be entitled to the property if she regains possession
within one year of losing it, or if legal action instituted within one year after such loss leads to the regaining of
possession. See also Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening van het Nederlands
Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 438; Van Zeben CJ et al
551
552
BW 3:317, read with BW 3:316.1.
553
554
BW 3:317.2.
555
BW 3:317.
556
BW 3:116.2. Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening van het Nederlands Burgerlijk
Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 439; Van Zeben CJ et al Parlementaire
557
BW 3:116.2. See also Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening van het Nederlands
Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 439.
558
BW 3:37.1.
133
also interrupts the running of prescription.559 The acknowledgement must be made towards
the person against whom prescription is running.560 When the running of prescription is
interrupted due to a legal remedy or action instituted by one of the parties, prescription does
not commence again before proceedings are terminated.561 The taking of possession from the
first possessor also interrupts the running of prescription.562
3.3.2.3.3 Postponement (verlenging or prolonging) of prescription

The previous Civil Code used the concept of postponement (schorsing) as understood in the
Roman-Dutch sense of the word.563 This entailed that prescription would not run against the
owner at all during the presence of a postponing impediment, with the remainder of the
prescription period continuing to run only after the impediment has fallen away. This position
is identical to postponement under the common law position in South African prescription
law at the time of the 1943 Prescription Act.564 However, as with South Africa,565 the new
Burgerlijk Wetboek opted for a more equitable approach in BW 3:320.566
Postponement of prescription occurs in a limited number of situations.567 Would the

prescription period have been completed but for the postponing impediment, it has to run for
an additional six months after the impediment has fallen away.568 The same happens if the
running of prescription would have been completed within six months after the impediment
has fallen away. In this regard, the completion of prescription is postponed for an additional
six months.569 The rationale behind postponement in Dutch law is similar to that of South
559
BW 3:318.
560
HR 10 June 1983, NJ 1984, 294. See also Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening
van het Nederlands Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 439.
561
562
Snijders HJ & Rank-Berenschot EB Goederenrecht (4th ed 2007) para 253; Van Zeben CJ et al Parlementaire
563
Schorsing in the true sense: See BW 2023-2029 (old). See also Van Zeben CJ et al Parlementaire
Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3 937. The Roman-Dutch position is discussed in
section 2.3.4 of chapter two above.
564
565
566
567
BW 3:321.
568
BW 3:320.
569
BW 3:320.
134
African law, namely to prevent prescription running against those who are incapable of
managing their own affairs.570
According to BW 3:321, prescription is postponed in cases where it is running between
i) spouses who are not judicially separated;

ii) a curator acting on behalf of a person who cannot administer her own affairs;
iii) an administrator (bewindvoerder) and a principal on whose behalf she is acting,
regarding claims concerning the agency agreement;
iv) a juristic person and its management;
v) a succession accepted under the benefit of inventory and an heir;
vi) a creditor and her debtor who intentionally conceals the existence or
claimability of the debt; and
vii) registered partners.
The cases of postponement mentioned under (ii) and (iii) continue to be effective until the
legal relationship between the curator (or administrator) and the incapacitated person (or
principal) ends.571 These grounds for postponement are, however, not all applicable to the
postponement of acquisitive prescription.572 For instance, ground (vi) only applies to cases
involving extinctive prescription, since it refers to debts. Prima facie, the same would seem
to apply to ground (iii), which refers to claims. However, ground (iii) may also be
applicable in cases of acquisitive prescription where the administrator is in charge of property
of the principal.573 Under these circumstances, it is clear that the administrator is not able to
acquire the principals property through acquisitive prescription as long as the agency
agreement is in force.574
3.4 French law

3.4.1 Introduction
570
Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 440. For the position in South African law, see
571
BW 3:321.2.
572
573
Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) paras 428a, 440.
574
BW 3:111.
135
French law also recognises the distinction between ownership and possession, with ownership
being the legal relationship between a person and property, whereas possession entails factual
control by a person over property.575 This distinction is not self-evident when the owner is in
possession of her property. Yet, as soon as ownership and possession separate, it becomes
possible to acquire ownership through acquisitive prescription. French law knows acquisitive
prescription as prescription acquisitive or usucapion.576 As in the other systems under
discussion, French law also has specific requirements for the acquisition of property through
prescription acquisitive.
Prescription acquisitive is justified in that long periods of possession create a presumption of

ownership, to which the law affords de iure status if it has continued for a sufficient length of
time.577 Furthermore, prescription is an original method of acquisition of ownership in French
law,578 as in South African law.579 The provisions of the French Civil Code (Code Civil)
relating to usucapion were amended in 2008,580 both in form and content.581
3.4.2 Prescription acquisitive (acquisitive prescription) and its requirements

3.4.2.1 Introduction and the role of possession
Article 2258 of the Code Civil contains the following definition for prescription acquisitive:
La prescription acquisitive est un moyen dacqurir un bien ou un droit par leffet de la

possession sans que celui qui lallgue soit oblig den rapporter un titre ou quon puisse lui
opposer lexception dduite de la mauvaise foi.582
575
Steiner E French Law A Comparative Approach (2010) 378; Bermann GA & Picard E Introduction to
French Law (2008) 155.
576
French Law (2008) 155-156.
577
See generally Steiner E French Law A Comparative Approach (2010) 378, 395; Bermann GA & Picard E
Introduction to French Law (2008) 156, 159; Bell J, Boyron S & Whittaker S Principles of French Law (2nd ed
2008) 277. See also Sagaert V Prescription in French and Belgian Property Law after the Pye Judgment
(2007) 15 European Review of Private Law 265-272 269. The justifications behind prescription are discussed
more fully in chapter four below.
578
Articles 2258 and 2219 of the Civil Code. See also Steiner E French Law A Comparative Approach (2010)
395; Bermann GA & Picard E Introduction to French Law (2008) 156, 158; Bell J, Boyron S & Whittaker S
Principles of French Law (2nd ed 2008) 277.
579
580
Law of 17 June 2008.
581
Steiner E French Law A Comparative Approach (2010) 395. The article numbers used in the discussion
below are the numbers as they appear after the amendment.
582
Acquisitive prescription is a way of acquiring a thing or a right through possession without the person
invoking prescription being required to show a title for the acquisition and without the possibility of opposing to
him the exception of bad faith. (Translation by Van Vliet LPW Creation in Van Erp JHM (ed) Ius Commune
Case Book (forthcoming 2012) 97.)
136
In other words, one is able to acquire both property and limited real rights (such as servitudes)
through prescription acquisitive.
The main requirement for prescription in French law is possession, which Article 2255
defines as follows:
La possession est la dtention ou la jouissance dune chose ou dun droit que nous tenons ou
que nous exerons par nous-mmes, ou par un autre qui la tient ou qui lexerce en notre
nom.583
French law also distinguishes between possession and mere holdership. Possession consists of
two elements, namely the physical element (corpus) and a mental element, which is the
intention to hold the thing for oneself (animo domini).584 These two elements are identical to
those required for possession in South African and Dutch prescription law.585 It is worth
reiterating that it is easier to satisfy the requisite form of intent in English adverse
possession law, which merely requires a person to intend to possess the property (animus
possidendi).586 Therefore, a case based on similar facts as that of Pye would not easily have
succeeded under French prescription law.587
One must not confuse the concepts of animus domini and good faith, since a possessor with
animus domini acts as if owner, while a possessor in good faith truly believes that she is the
owner.588 Consequently, it is possible for the animus domini and bad faith to co-exist, since
the fides of a possessor is irrelevant when determining whether the animus domini is present
for purposes of prescription acquisitive.589
583
Possession is the holding or the enjoyment of an object or of a right that we have or hold for ourselves, or by
another who has or holds it for us. (Translation by Van Vliet LPW Creation in Van Erp JHM (eds) Ius
Commune Case Book (forthcoming 2012) 100.)
584
French Law (2008) 156. See also Van Vliet LPW Creation in Van Erp JHM (ed) Ius Commune Case Book
(forthcoming 2012) 100.
585
See section 2.3.2.1 of chapter two above for the South African position. The Dutch position appears from BW
3:107 and is discussed in section 3.3.2.2.1 above.
586
See the discussion in section 3.2.2.3.2.3 above.
587
For a discussion in this regard, see Sagaert V Prescription in French and Belgian Property Law after the Pye
Judgment (2007) 15 European Review of Private Law 265-272 and Sagaert V De Verkrijgende Verjaring van
Onroerende Goederen Herbezocht. Een Aanzet tot het Debat over het Verjaringsrecht (2007) 39 Rechtskundig
Weekblad 1582-1597. Both these articles appeared before the 2008 amendments to the Code Civil. The facts of
the Pye case are discussed in section 3.2.3.2 above.
588
French Law (2008) 156.
589
Bermann GA & Picard E Introduction to French Law (2008) 156; Bell J, Boyron S & Whittaker S Principles
of French Law (2nd ed 2008) 277.
137
A dtenteur or holder unlike a possessor does not hold property animo domini, as she
intends to hold the property on behalf of someone else and not for herself.590 Therefore,
lessees and borrowers are merely holders in French law and are unable to hold the property
with the animus domini. This position is identical to that in South African and Dutch
prescription law.591 Once a person obtains possession, it continues even if the possessor
exercises no acts of factual possession over the property.592
Besides the requisite possession, the possessor also has to satisfy other prescription
requirements set out in Article 2261 of the Code Civil:
Pour pouvoir prescrire, il faut une possession continue et non interrompue, paisible, publique,
non quivoque, et titre de propritaire.593
Since these requirements inherently form part of possession, it is incorrect to refer to them
as additional requirements.594 Should one of these requirements be absent, possession is
vitiated and the possessor is then unable to acquire the property through prescription.595
The requirement that possession must be unequivocal has as in English law given rise to
problems pertaining to its definition.596 It is generally assumed that in a dispute between a
possessor and an owner regarding ownership, possession by the possessor will be equivocal if
the possessor and owner have been cohabiting or if they were co-owners.597 Under these
circumstances, it is clear that the possessor will merely qualify as a holder, who is unable to
acquire the property through prescription acquisitive. The requirement that possession must
be unequivocal overlaps to some degree with the condition that possession must also be
590
French Law (2008) 156; Bell J, Boyron S & Whittaker S Principles of French Law (2nd ed 2008) 278.
591
See section 2.3.2.1.1 of chapter two above for the South African position. The Dutch position is discussed in
section 3.3.2.2.1 above.
592
Van Vliet LPW Creation in Van Erp JHM (ed) Ius Commune Case Book (forthcoming 2012) 103.
593
In order to complete the prescription, possession as an owner is required; it has to be continuous and
uninterrupted, peaceful, publicly visible, unequivocal. (Translation by Van Vliet LPW Creation in Van Erp
JHM (ed) Ius Commune Case Book (forthcoming 2012) 109.) See also Steiner E French Law A Comparative
Approach (2010) 396; Bermann GA & Picard E Introduction to French Law (2008) 156. See generally Bell J,
Boyron S & Whittaker S Principles of French Law (2nd ed 2008) 278-279.
594
595
Steiner E French Law A Comparative Approach (2010) 396.
596
597
French Law (2008) 156. See also Van Vliet LPW Creation in Van Erp JHM (ed) Ius Commune Case Book
(forthcoming 2012) 112.
138
without permission from the owner.598 It is trite law that precarious possession cannot give
rise to acquisition of ownership through prescription.599
3.4.2.2 Periods required for acquisitive prescription

Article 2272 of the Code Civil sets the periods for prescription as follows:
Le dlai de prescription requis pour acqurir la proprit immobilire est de trente ans.
Toutefois, celui qui acquiert de bonne foi et par juste titre un immeuble en prescrit la proprit
par dix ans. 600
The running of prescription commences when the claimant, or her predecessor in title, obtains
possession over the property.601 According to Article 2272, the prescription period for land
possessed in bad faith is 30 years. If the possessor seeks to acquire land in good faith and
under just title, the prescription period is reduced to 10 years. The law presumes the presence
of good faith and, as in Dutch law,602 the onus rests on the party alleging bad faith.603 Article
550 of the Code Civil defines good faith as where [the possessor] possesses as an owner
under a title whose defects are not known to him.604 In other words, bona fides requires the
possessor to believe that she acquired ownership from the owner.605 A possessor is in good
faith if she neither knew, nor could have known, that the transferor was unauthorised to
dispose of the property.606
As to supervening mala fides, Article 550 of the Code Civil provides that [the possessor]
ceases to be in good faith from the moment in time when those defects become known to
him.607 Therefore, supervening bad faith negates earlier good faith, which is in line with the
598
Van Vliet LPW Creation in Van Erp JHM (ed) Ius Commune Case Book (forthcoming 2012) 116. This is
comparable to the adverse requirement in English adverse possession law, see section 3.2.2.3.1 above.
599
Articles 2236 and 2240 of the Code Civil. See also Van Vliet LPW Creation in Van Erp JHM (ed) Ius
Commune Case Book (forthcoming 2012) 116.
600
Ownership of immovable property is acquired by prescription following a period of time of 30 years.
However, a person who acquires an immovable in good faith (bona fides) and under just title (iustus titulus)
prescribes ownership of it by 10 years. (Translation by Steiner E French Law A Comparative Approach
(2010) 396.) See also the translation by Van Vliet LPW Creation in Van Erp JHM (ed) Ius Commune Case
Book (forthcoming 2012) 100.
601
Bell J, Boyron S & Whittaker S Principles of French Law (2nd ed 2008) 278.
602
603
Article 2274 of the Code Civil. See also Steiner E French Law A Comparative Approach (2010) 396.
604
Translation by Steiner E French Law A Comparative Approach (2010) 396.
605
606
607
Article 550 of the Code Civil. Translation by Steiner E French Law A Comparative Approach (2010) 396.
139
position under Canon law.608 This is contrary to the position in Dutch law, where supervening
bad faith does not negate good faith if the possessor obtained possession bona fide.609
French jurists define just title (or valid legal ground) as a title that would have conveyed
ownership were it not for the transferors lack of ownership or power of disposal.610 It follows
that a just title is in fact an imperfect title.611 However, for purposes of prescription
acquisitive, this imperfect title is good enough as long as it is the only defect present.612 Any
other defect, such as incapacity or non-compliance with formalities, disqualifies title from
being just.613 Van Vliet gives an example of a just title as being a contract of sale or a
contract creating a servitude.614
3.4.2.3 Aggregation of prescription periods (coniunctio temporum)

It is not required that one person should have possessed the property for the entire 10- or 30-
year period to acquire ownership through prescription acquisitive.615 This is due to Article
2265 of the Code Civil, which provides as follows:
Pour complter la prescription, on peut joindre sa possession celle de son auteur, de quelque
manire qu'on lui ait succd, soit titre universel ou particulier, soit titre lucratif ou
onreux. 616
The universal successor takes over all qualities attached to the possession of her
predecessor.617 Subsequently, if the predecessor was in bad faith, the law then deems the
universal successor also to be in bad faith, even though she may actually be in good faith. On
the other hand, if the universal successor was bona fide, the successor is deemed to be in good
faith, regardless of her actual fides. The singular or specific successor, such as a buyer,
608
609
610
Steiner E French Law A Comparative Approach (2010) 396. See also Van Vliet LPW Creation in Van
Erp JHM (ed) Ius Commune Case Book (forthcoming 2012) 106.
611
612
613
Steiner E French Law A Comparative Approach (2010) 396-397.
614
Van Vliet LPW Creation in Van Erp JHM (ed) Ius Commune Case Book (forthcoming 2012) 100, 106.
615
Bell J, Boyron S & Whittaker S Principles of French Law (2nd ed 2008) 278; Van Vliet LPW Creation in
Van Erp JHM (ed) Ius Commune Case Book (forthcoming 2012) 122.
616
To complete a prescription, one may join to ones possession that of ones predecessor, in whatever manner
one may have succeeded to him, whether by virtue of a universal or specific title, whether for value or
gratuitously. (Translation by Van Vliet LPW Creation in Van Erp JHM (ed) Ius Commune Case Book
(forthcoming 2012) 122.)
617
140
determines her own fides, since the fides of such a successor does not depend on that of the
predecessor.618
3.4.2.4 Suspension of the prescription period

Suspension of the running of prescription takes place where the owner is unable to bring
action.619 Grounds for suspension include where the owner is a minor or where she is
incapable of managing her own affairs, for instance due to mental incapacity.620 Supervening
force (vis maior) affecting the owner may suspend the prescription period, but this only
applies where the event makes it impossible for the owner to prevent the running of
prescription.621
3.5 German law

German law has an extremely rigorous regime in the context of prescription (Ersitzung) of
land due to the positive nature of its registration system. Consequently, most cases based on
Ersitzung are unlikely to succeed. The discussion of German prescription law will therefore
be brief.
900 of the German Civil Code (Brgerliches Gesetzbuch or BGB) regulates Ersitzung
of land and provides as follows:
(1) Wer als Eigentmer eines Grundstcks im Grundbuch eingetragen ist, ohne dass er das
Eigentum erlangt hat, erwirbt das Eigentum, wenn die Eintragung 30 Jahre bestanden und er
whrend dieser Zeit das Grundstck im Eigenbesitz gehabt hat. Die dreiigjhrige Frist wird in
derselben Weise berechnet wie die Frist fr die Ersitzung einer beweglichen Sache. Der Lauf
der Frist ist gehemmt, solange ein Widerspruch gegen die Richtigkeit der Eintragung im
Grundbuch eingetragen ist.
(2) Diese Vorschriften finden entsprechende Anwendung, wenn fr jemand ein ihm nicht
zustehendes anderes Recht im Grundbuch eingetragen ist, das zum Besitz des Grundstcks
berechtigt oder dessen Ausbung nach den fr den Besitz geltenden Vorschriften.622
618
619
620
621
622
(1) A person who has been registered in the land registry as owner of a piece of land, without having wanted
the right of ownership, acquires the right of ownership when the registration has existed for 30 years and he has
been in possession of the land for his own benefit for that time. The thirty-year period is calculated in the same
way as the period for prescription of a movable object. The running of the prescription period is interrupted as
long as an objection to the accuracy of the registration in the Land Register is registered.
141
The main requirement is that the possessor must have been registered as owner in the Land
Register (Grundbuch) for prescription to run in her favour.623 Furthermore, the possessor
must possess the property animo domini.624 Possession animo domini need not be in good
faith, since the intention to possess as owner can co-exist with mala fides.625 The animus
domini and registration in the Grundbuch must coincide for the full duration of the 30-year
prescription period.626 Once these requirements are satisfied, the possessor acquires
ownership by way of original acquisition of ownership.627 Consequently, Ersitzung
extinguishes any legal claim to the land held by third parties when the possessor acquires
ownership through prescription.628
The purpose behind BGB 900 is to afford de iure status to long-existing de facto
situations.629 Thus, Ersitzung aims to avoid the situation where the ownership of land and the
reality of possession do not reside in the same person.630 Another purpose of Ersitzung is to
prevent the probatio diabolica (devils burden) when having to prove ownership.631
(2) These provisions are applicable mutatis mutandis when a right has been registered in the Land Register for a
person who is not entitled to it, that gives a right to possession or the exercise of which is protected by the
provisions on possession. The order of registration is decisive for the priority of the right. (Translation by Van
Vliet LPW Creation in Van Erp JHM (ed) Ius Commune Case Book (forthcoming 2012) 132.)
623
Scker FJ & Rixecker R (eds) Mnchener Kommentar zum Brgerlichen Gesetzbuch vol 6 Sachenrecht (5th
ed 2009) 900 RdNr 3; Palandt O Brgerliches Gesetzbuch vol 7 (63rd ed by Bassenge P et al 2004) 900
RdNr 3.
624
RdNr 3. Animus domini is defined in BGB 872: Wer eine Sache als ihm gehrend besitzt, ist Eigenbesitzer.
(A person who holds a thing for himself has animus domini.) I am indebted to Viola Wilke from the
University of Erlangen-Nrnberg for her assistance in translating the German sources.
625
ed 2009) 900 RdNr 1, 4; Palandt O Brgerliches Gesetzbuch vol 7 (63rd ed by Bassenge P et al 2004) 900
RdNr 3. This is similar to South African prescription law: See section 2.3.2.1.1 of chapter 2 above.
626
ed 2009) 900 RdNr 5.
627
Vieweg K & Werner A Sachenrecht (4th ed 2010) 6 RdNr 8; Scker FJ & Rixecker R (eds) Mnchener
Kommentar zum Brgerlichen Gesetzbuch vol 6 Sachenrecht (5th ed 2009) 900 RdNr 6; Palandt O
Brgerliches Gesetzbuch vol 7 (63rd ed by Bassenge P et al 2004) 900 RdNr 5.
628
RdNr 1.
629
Kommentar zum Brgerlichen Gesetzbuch vol 6 Sachenrecht (5th ed 2009) 900 RdNr 1; Baur F, Baur JF &
Strner R Sachenrecht (18th ed 2009) 53 RdNr 85.
630
Kommentar zum Brgerlichen Gesetzbuch vol 6 Sachenrecht (5th ed 2009) 900 RdNr 1; Baur F, Baur JF &
Strner R Sachenrecht (18th ed 2009) 53 RdNr 85; Palandt O Brgerliches Gesetzbuch vol 7 (63rd ed by
Bassenge P et al 2004) 900 RdNr 1.
631
Baur F, Baur JF & Strner R Sachenrecht (18th ed 2009) 53 RdNr 85.
142
BGB 891 I creates the statutory presumption that the Grundbuch provides conclusive proof
of a registered right.632 Once a right is registered in the Grundbuch, the register is presumed
to provide conclusive proof of such right.633 The LRA is to the same effect, stipulating that
the land register in English law now also provides conclusive proof of registered title.634 In
German law, the possessor is presumed to be the owner of the land as long as she is registered
in the Grundbuch.635 One can refute this presumption by proving the opposite or by
registering a refutation in the Grundbuch. 636 It is not necessary to prove the facts for this
presumption to be effective.637 Accordingly, the burden of proof for proving that the
Grundbuch is incorrect rests on the party averring it.638 This presumption in favour of the
correctness of the Grundbuch is the reason why German law is classified as a positive
registration system.
According to Baur, Baur and Strner, Ersitzung no longer fulfils a meaningful role in German
law.639 One may deduce this from the small number of judgments concerning Ersitzung in
German law today.640 This makes sense, since the strict requirements for acquiring ownership
in land through BGB 900 are unlikely to be easily satisfied in practice. However, Ersitzung
does still have a corrective function, such as when one of the requirements for a valid transfer
of ownership has not been met.641
It follows that the role of prescription in a jurisdiction with a positive registration system is
extremely limited. Since the Brgerliches Gesetzbuch presumes the correctness of the
Grundbuch, it is not possible to argue that prescription fulfils a corrective function regarding
possession of land. As one of the purposes of this dissertation is to investigate the
contemporary role of prescription in various legal systems, it appears that prescription fulfils
632
BGB 891 I. See also Vieweg K & Werner A Sachenrecht (4th ed 2010) 13 RdNr 8; Palandt O
Brgerliches Gesetzbuch vol 7 (63rd ed by Bassenge P et al 2004) 891 RdNr 1.
633
BGB 891 I. See also Palandt O Brgerliches Gesetzbuch vol 7 (63rd ed by Bassenge P et al 2004) 891
RdNr 2, 5.
634
635
Vieweg K & Werner A Sachenrecht (4th ed 2010) 13 RdNr 8; Baur F, Baur JF & Strner R Sachenrecht
(18th ed 2009) 4 RdNr 12; Palandt O Brgerliches Gesetzbuch vol 7 (63rd ed by Bassenge P et al 2004) 891
RdNr 5.
636
Vieweg K & Werner A Sachenrecht (4th ed 2010) 13 RdNr 8; Palandt O Brgerliches Gesetzbuch vol 7
(63rd ed by Bassenge P et al 2004) 891 RdNr 1, 8.
637
Palandt O Brgerliches Gesetzbuch vol 7 (63rd ed by Bassenge P et al 2004) 891 RdNr 1.
638
Palandt O Brgerliches Gesetzbuch vol 7 (63rd ed by Bassenge P et al 2004) 900 RdNr 4.
639
Baur F, Baur JF & Strner R Sachenrecht (18th ed 2009) 6 RdNr 9, 53 RdNr 86.
640
Baur F, Baur JF & Strner R Sachenrecht (18th ed 2009) 53 RdNr 86.
641
Vieweg K & Werner A Sachenrecht (4th ed 2010) 6 RdNr 1; Baur F, Baur JF & Strner R Sachenrecht (18th
ed 2009) 6 RdNr 9.
143
a less important function in jurisdictions with positive registration systems, such as German
and English law. In this sense, a positive registration system provides greater protection to
owners, especially in English law where it was easier as seen in the Pye case to acquire
title in land through adverse possession. This stands in contrast to prescription in civil-law
countries, where a case with facts similar to those of Pye is unlikely to succeed due to the
animus domini requirement. For this reason, it was essential to examine how adverse
possession operates before and after the 2002 Act. Since these recent developments are
unique to English law, it is unnecessary to examine German prescription law in further detail.
3.6 Conclusion
The English law of adverse possession before the enactment of the LRA was by far the most
lenient system when it came to the extinguishment of title through the limitation of actions.
Due to a friendly interpretation of the animus possidendi requirement, it is even possible for
squatters offering to pay rent or to give up the property to qualify as possessors. This, coupled
with the irrelevance of bad faith and a short 12-year limitation period, offers little protection
to owners in English law. However, the enactment of the 2002 Act has placed England
together with Germany at the forefront of jurisdictions that protect registered owners from
losing registered land through limitation or prescription. However, since the LRA only
applies to registered land, it is still possible to acquire title in unregistered land under the rules
of adverse possession as it stood at the time of Pye. The amendments made to English law
came as a result of the traditional justifications for adverse possession, such as that it
promotes legal certainty, no longer applying to registered land when the identity of the
proprietor can be ascertained by simply perusing the register. This is because the 2002 Act
now deems the register as providing conclusive proof of title. Chapter four elaborates on the
reasons why adverse possession or prescription fulfils a more useful role in systems where the
correctness of the register is not guaranteed.
Although the civil law systems (which include South African, Dutch and French prescription
law) do not have the same special protection for registered owners as in England, they have a
much more rigorous animus domini element, which must be met before a person may qualify
for possession for purposes of prescription. The periods under these systems are also
considerably longer in the context of mala fide possessors, since Dutch and French law then
require 20- and 30-year periods respectively. Furthermore, all these legal systems have
144
negative registration systems, which causes prescription to have a corrective function by
affording de iure status to long-existing de facto realities. Consequently, through more
stringent requirements, owners in these systems are also protected from the possible injustices
of prescription, at least when compared to the position of the unregistered owner in English
law. Nonetheless, this level of protection is not the same as that afforded in German law or to
registered owners under the LRA.
Prescription of land in South African, Dutch and French law is therefore still possible,
although longer periods have to be satisfied in the latter two countries involving mala fide
possessors. Justifying bona fide prescription in these contexts is not at issue, since the
difficulty seemingly lies with justifying situations where mala fide possessors steal
ownership through prescription. In chapter four, I indicate that the distinction between good
and bad faith possessors is fallacious in nature and that it serves no useful purpose to
distinguish between these types of possessors for purposes of prescription.
As it was found that adverse possession or prescription plays a more limited role in countries
with positive registration systems, the justifications behind this notion need to be scrutinised.
This is done in chapter four, which specifically focuses on the rationale for prescription
today.
145
CHAPTER 4: JUSTIFYING ACQUISITIVE PRESCRIPTION RATIONALE AND
JURISPRUDENCE
4.1 Introduction
This chapter analyses the traditional justifications behind acquisitive prescription
(prescription), as formulated in each of the jurisdictions under consideration. The
substantive requirements for prescription or adverse possession in these systems were already
discussed and are, therefore, not repeated here.1 Instead, the focus of this chapter falls on the
grounds for justifying prescription in Roman-Dutch, South African, Dutch and French law,
together with an investigation as to how the justifications for adverse possession were
recently re-evaluated in English law. It was seen in chapter three that prescription no longer
fulfils a meaningful role in German law because of the characteristics of its positive
registration system.2 For this reason, the justifications for prescription in German law are not
addressed. Following the analysis of the rationale for prescription in the legal systems
mentioned above, the chapter evaluates the justifications (both those in favour and against)
for prescription in accordance with three strains of liberal property theory. These theories are
the labour theory, the personality theory as developed by Radin and finally utilitarianism
and law and economics theory.
This chapter argues that the traditional justifications provided for prescription in the Roman-
Dutch, South African, Dutch and French systems are unsatisfactory. Although the rationale
for adverse possession has been more extensively analysed (and criticised) in English law in
light of the enactment of the Land Registration Act 2002 (LRA or 2002 Act), I find that
even this approach is lacking in that it fails to incorporate certain moral and economic factors.
Therefore, it is necessary to focus on the three liberal property theories mentioned above to
properly investigate the raison dtre behind prescription or adverse possession. Through
addressing how each of these theories specifically relate to prescription, it is shown that
prescription or adverse possession concerning land including registered land is justified in
a negative registration system.
1
The requirements for prescription or adverse possession are discussed in section 2.3.2 of chapter two (South
African law) and sections 3.2-3.5 for English, Dutch, French and German law respectively in chapter three
above.
2
See the discussion of German prescription law in section 3.5 of chapter three above.
146
The focus finally falls on the acquisition of ownership through bad faith prescription. This
phenomenon seems to reward persons who intentionally occupy property by awarding
ownership to them, which complicates attempts to justify this manner of acquiring
ownership.3 Nonetheless, this chapter concludes that the traditional objections against mala
fide prescription namely that it should either be impermissible or have longer prescription
periods than instances involving bona fide possessors are flawed in certain respects.
Chapter four illustrates that even bad faith prescription is justified in modern legal systems
if one has regard to the fallacies in these arguments.
4.2 The traditional justifications for acquisitive prescription in Roman-Dutch, South

African, Dutch and French law
4.2.1 Introduction
This section only focuses on the justifications for prescription in Roman-Dutch, South
African, Dutch and French law, since the substantive requirements for prescription in these
systems were already discussed in the previous two chapters.4 Nonetheless, I briefly restate
the main requirements for prescription in South African law, namely open and continuous
possession (possessio civilis)5 of property for 30 years.6 In South African prescription law,
both bona and mala fides can co-exist with the animus domini-requirement of possessio
civilis,7 which allows for good and bad faith acquisition of ownership through prescription
after 30 years. This phenomenon requires further analysis and is addressed below.8
4.2.2 Roman-Dutch law
3
See, for instance, Pealver EM & Katyal SK Property Outlaws (2007) 155 University of Pennsylvania Law
Review 1095-1186 1097-1098; Fennell LA Efficient Trespass: The Case for Bad Faith Adverse Possession
(2006) 100 Northwestern University Law Review 1037-1096 1037-1040.
4
The substantive requirements of prescription in these systems are discussed in sections 2.2.3 and 2.3.2 of
chapter two (Roman-Dutch and South African law) and sections 3.3-3.4 of chapter three (Dutch and French law)
above.
5
According to Carey Miller DL & Pope A Land Title in South Africa (2000) 160-161, possessio civilis consists
of factual possession coupled with the animus domini, the intention of holding property as owner. See also
section 2.3.2.1. of chapter two above.
6
Section 2(1)-(2) of the Prescription Act 18 of 1943 and section 1 of the Prescription Act 68 of 1969. See also
7
Bisschop v Stafford 1974 (3) SA 1 (A) 8-9; Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and
Another 1972 (2) SA 464 (W) 474. See also Van der Walt AJ Property in the Margins (2009) 174 and section
2.3.2.1.1 of chapter two above.
8
See section 4.5 below.
147
Voet one of the most influential Roman-Dutch authors denounces Roman law usucapio as
embrac[ing] in itself some unfairness.9 Although the provinces of Holland never received
usucapio, which caused it not to become part of Roman-Dutch10 or South African law, this
observation by Voet remains relevant for purposes of discussing the rationale of prescription.
Most of the rules Voet regards as incidental to usucapio still apply to Roman-Dutch
prescription law.11 It follows that if the rules of usucapio are incidental to Roman-Dutch
prescription law, then perhaps the justifications for usucapio are also applicable.
Consequently, these justifications contribute to a jurisprudential discussion,12 even though
Voet bases his discussion of the unfairness of usucapio on moral and not legal grounds.13
Voet views the unfairness of usucapio14 as originating from the fact that Roman law
usucapio15 only came to be viewed as a wicked protection the moment praescriptio longi
temporis replaced it.16 One can, therefore, argue that Voet regards the period required to
obtain ownership through usucapio as essential in determining whether it is justifiable or not.
Accordingly, the current South African form of prescription with a 30-year period for
immovables seems to be even less wicked than usucapio or even praescriptio longi
temporis, since the latter legal institution had 10- and 20-year periods for immovable
property.17
9
Voet 41.3.1. See similarly Schorer W Aanteekeningen van mr Willem Schorer, over de Inleidinge tot de
Hollandsche Rechts-Geleerdheid, van mr Hugo de Groot (1784) 2.7.3. Despite the fact that Voets discussion
regarding the justification of usucapio is based on moral and not legal grounds, it proves helpful to investigate
these grounds to obtain a full view of the important justifications for prescription. For a caveat not to regard
these moral justifications as legal norms, see Pienaar v Rabie 1983 (3) SA 126 (A) 137 and Holmes OW The
Path of the Law (1897) 10 Harvard Law Review 457-478. However, some authors are of the opinion that
morals should be taken into account when discussing legal norms. See, for instance, Winfield PH Ethics in
English Case Law (1932) 45 Harvard Law Review 112-135 118, where he states that escape from the moral
element in law is impossible.
10
Voet 44.3.7.
11
12
The door to which was opened by Grosskopf JA in Pienaar v Rabie 1983 (3) SA 126 (A) 135.
13
Pienaar v Rabie 1983 (3) SA 126 (A) 137.
14
Since this chapter only focuses on the justifications behind prescription and not the differences of the
requirements between modern prescription and Roman law usucapio, usucapio can for purposes of this
discussion be read as meaning prescription. See similarly Pienaar v Rabie 1983 (3) SA 126 (A) 136-137.
15
With a one-year period for movables and a two-year period for immovables: See section 2.2.2 of chapter two
above.
16
Voet 41.3.1; Pienaar v Rabie 1983 (3) SA 126 (A) 136. Under praescriptio longi temporis, immovables could
be acquired after a period of 10 years inter praesentes or 20 years inter absentes: See section 2.2.2 of chapter
two above.
17
Grosskopf JA in Pienaar v Rabie 1983 (3) SA 126 (A) 138 is of much the same opinion. Regarding the
requirements of praescriptio longi temporis, see section 2.2.2 of chapter two above.
148
Nonetheless, the content Voet gives to this unfairness is not confined to the relevant period,
but also includes the fact that it is possible for a bad faith possessor to acquire property
through prescription.18 Voet regards mala fide acquisition through usucapio as the greatest
unfairness in the framework of prescription.19 In this context bona fides was only required
when the possessor obtained possession of the property; subsequent mala fides did not
interrupt usucapio.20 Indeed, it seems difficult to justify bad faith prescription even in modern
legal systems, as observed in Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and
Another.21 Yet, despite Voets opposition to this unfairness, he tolerates mala fide usucapio
because it is for the benefit of the public welfare, and at the same time [serves] as a penalty
for a person who neglects what is his own, and shows contempt by his negligence.22
Although Voet does not define public welfare, it can be seen as synonymous with the
argument that prescription promotes legal certainty.23 However, in a paragraph headed Voet
justifies usucapion in general, Voet states that usucapio accompanied by good faith
throughout the required period is a permissible method of acquiring ownership in the courts
of both heaven and earth.24 According to Voet, in this scenario it is justified to punish a
careless owner who by neglecting his property causes uncertainty as to ownership.25 It
follows that Voet advances two main justifications for usucapio, namely that it promotes
legal certainty and that it punishes neglectful owners. The question of how prescription can
be justified concerning the mala fide possessor is discussed later, as this scenario has been
difficult to justify at least since Roman-Dutch times.26
Grotius is of the same view as Voet in the context of justifying the acquisition of ownership
through mala fide prescription.27 Grotius who wrote against a background of Christian
morals28 thinks that prescription will ruin an owner who loses property, while the possessor
18
Voet 41.3.1.
19
Voet 41.3.1. See also Grotius Inleidinge 2.7.3 and the criticism in Schorer W Aanteekeningen van mr Willem
Schorer, over de Inleidinge tot de Hollandsche Rechts-Geleerdheid, van mr Hugo de Groot (1784) 2.7.3.
20
Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 84. See also C 7.31.1.3: Mala fides
superveniens non nocet. (Supervening mala fides does not break [or interrupt] prescription.)
21
1972 (2) SA 464 (W) 468. The objection to mala fide prescription in this case is discussed in section 4.2.3
below.
22
Voet 41.3.1. This passage is quoted in Pienaar v Rabie 1983 (3) SA 126 (A) 136.
23
Grosskopf JA in Pienaar v Rabie 1983 (3) SA 126 (A) 136 is of the same opinion.
24
Voet 41.3.1. See also Grotius Inleidinge 2.7.3; Wessels JW History of the Roman-Dutch Law (1908) 642.
25
Voet 41.3.1. See generally Grotius Inleidinge 2.7.4.
26
See the discussion in section 4.5 below.
27
Grotius Inleidinge 2.7.3. The reason I use the word prescription here instead of usucapio is because of
Grotiuss use of the word verjaring (prescription) in his heading at Inleidinge 2.7.
28
In this regard, see also Pienaar v Rabie 1983 (3) SA 126 (A) 137.
149
is rewarded for the illegal possession that he knowingly commits.29 In this sense Grotius, like
Voet, supports prescription that requires good faith throughout the whole prescription
period.30 Yet, despite his criticism of mala fide prescription, Grotius acknowledges that the
law requires a middel or medium [to] place the property in certainty and to end all
disputes.31 Prescription is identified as this middel and, accordingly, the two justifications
identified by Voet are once more distinguishable. Schorer, in his commentary on Grotius,
identifies the reason the Roman Catholic Church required good faith throughout the entire
prescription period as to liberate peoples souls from injustice.32 Although this justification
may be laudable from a background of Christian morals, it is unlikely to qualify as a rationale
from a legal point of view. Yet, Schorer criticises this justification and states that it defeats
the true purpose behind prescription, namely to put an end to disputes regarding ownership
and to promote legal certainty.33 He mentions that [t]he purpose of prescription, which may
be advanced, is to bring an end to disputes that would otherwise continue into perpetuity and
so disrupt the peace of humanity.34 As illustrated in the next section, the legal certainty and
punishment justifications from Roman-Dutch law were received into South African
prescription law.
4.2.3 South African law

South African law has two main justifications for prescription due to the reception of Roman-
Dutch law.35 The first is captured in the following passage:
Prescription is based upon the principle that penalties should be imposed on those who,
through their negligence and carelessness about their own affairs and property, do an injury to
29
30
31
Grotius Inleidinge 2.7.4: [Om] de eigendommen te stellen in verzeeckerheid ende alle gheschillen af te
snijden ... ([To] place the property in certainty and to end all disputes.)
32
Schorer W Aanteekeningen van mr Willem Schorer, over de Inleidinge tot de Hollandsche Rechts-
Geleerdheid, van mr Hugo de Groot (1784) 2.7.3: [O]m de zielen der menschen van onrechtveerdigheid te
bevrijden. ([T]o liberate peoples souls from injustice.)
33
Geleerdheid, van mr Hugo de Groot (1784) 2.7.3.
34
Geleerdheid, van mr Hugo de Groot (1784) 2.7.3: Het doelwit der verjaaringe, die alln is ingevoerd, om een
einde van geschillen te maaken, welke andersins tot in het oneindige zouden voortduren, en de rust des
menschdoms stooren. (The purpose of prescription, which may be advanced, is to bring an end to disputes that
would otherwise continue into perpetuity and so disrupt the peace of humanity.)
35
Voet 41.3.1; Grotius Inleidinge 2.7.4; Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoemans
The Law of Property (5th ed 2006) 160-161; Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994)
256; Van der Merwe CG & De Waal MJ The Law of Things and Servitudes (1993) para 149; Van der Merwe
CG Sakereg (2nd ed 1989) 268. See also generally Pienaar v Rabie 1983 (3) SA 126 (A).
150
the State by introducing an uncertainty as to the ownership and an endless multiplicity of
lawsuits 36
One can refer to this justification as the punishment justification, since it argues that the
owner should be punished for neglecting his property by losing ownership through
prescription.37 Since prescription in South African law is an original method of acquisition of
ownership,38 the loss of ownership occurs without the permission or co-operation of the
owner. In this context Schorer argues that the purpose of prescription is not to reward the
illegal possessor, but to encourage owners to be more attentive towards their property.39 In
other words, prescription can be conceived to serve as an incentive for owners not to neglect
their property.40 Interestingly, this justification can also be used to justify mala fide
prescription,41 since the fides of a possessor is irrelevant if the aim of prescription is to punish
neglectful owners for not looking after their property.
36
Hall CG Maasdorps Institutes of South African Law Volume II The Law of Property (10th ed 1976) 76,
which is based on Voet 41.3.1, Grotius Inleidinge 2.7.4 and Schorer W Aanteekeningen van mr Willem Schorer,
over de Inleidinge tot de Hollandsche Rechts-Geleerdheid, van mr Hugo de Groot (1784) 2.7.3. See also
Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 477-478; Welgemoed
v Coetzer and Others 1946 TPD 701 711-712, 721; Badenhorst PJ, Pienaar JM & Mostert H Silberberg and
Schoemans The Law of Property (5th ed 2006) 161; Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg
(1994) 240; Van der Merwe CG & De Waal MJ The Law of Things and Servitudes (1993) para 149; Van der
Merwe CG Sakereg (2nd ed 1989) 268.
37
Voet 41.3.1; Grotius Inleidinge 2.7.4; Van der Merwe CG & De Waal MJ The Law of Things and Servitudes
(1993) para 149; Van der Merwe CG Sakereg (2nd ed 1989) 268. See also Ex Parte Puppli 1975 (3) SA 461 (D)
463; Barker NO v Chadwick and Others 1974 (1) SA 461 (D) 466; Morkels Transport (Pty) Ltd v Melrose
Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 468, 477-478; Campbell v Pietermaritzburg City Council
1966 (2) SA 674 (N) 682; Van Wyk and Another v Louw and Another 1958 (2) SA 164 (C) 170; City of Cape
Town v Abelsohns Estate 1947 (3) SA 315 (C) 325; Welgemoed v Coetzer and Others 1946 TPD 701 711-
712, 721; Van der Merwe v Minister of Defence 1916 OPD 47 50; Smith and Others v Martins Executor Dative
(1899) 16 SC 148 151. To the same effect is Pienaar v Rabie 1983 (3) SA 126 (A) 137-139.
38
Section 2(2) of the Prescription Act 18 of 1943 and section 1 of the Prescription Act 68 of 1969. See also
Sonnekus JC Die Rei Vindicatio en Verjaring Of Nie 2010 Tydskrif vir die Suid-Afrikaanse Reg 576-
590 576; Sonnekus JC Sub Hasta-veilings en die Onderskeid tussen Afgeleide en Oorspronklike Wyses van
(1994) 15 Obiter 161-171 167, 170-171; Van der Merwe CG & De Waal MJ The Law of Things and Servitudes
(1993) para 149; Van der Merwe CG Sakereg (2nd ed 1989) 268. See further section 2.3.1 of chapter two above.
39
Geleerdheid, van mr Hugo de Groot (1784) 2.7.3. This argument is analogous to one of the justifications for
adverse possession in English law, namely that it encourages owners not to sleep on their rights. This
justification is discussed in section 4.3.2 below.
40
Geleerdheid, van mr Hugo de Groot (1784) 2.7.3: [O]m den ontachtsamen en slordigen eigenaar voor zijn goed
to beter to doen zorgen. (In order that the inattentive and negligent owner may better look after his property.)
This passage was quoted with approval in Welgemoed v Coetzer and Others 1946 TPD 701 712. For criticism of
this argument in English law, see section 4.3.2 below.
41
Van der Walt AJ Property in the Margins (2009) 174. This issue is discussed in section 4.5 below.
151
However, despite the fact that the owners negligence is advanced as a justification for
prescription, negligence does not constitute one of the requirements of this legal institution.42
Indeed, a person claiming ownership through prescription need not at all show that the owner
neglected his property.43 Consequently, an owner can lose property through prescription even
if he acted as a reasonable person throughout the entire prescription period.44 This state of
affairs highlights an inconsistency in the punishment justification, since one can hardly argue
that one of the purposes of prescription is to punish the neglectful owner if negligence does
not form part of its requirements. This anomaly is further addressed in the discussion of
English law.45 The punishment justification has at least once been addressed by the then
Appellate Division of the Supreme Court in Pienaar v Rabie:46
[D]ie nalatigheid van n eienaar wat sy eiendom deur verjaring verloor word wel in ons bronne
erken as een van die regverdigings vir verkrygende verjaring. Dit is egter nie die enigste of selfs
vernaamste grondslag van verkrygende verjaring nie ...47
Although the High Court48 together with Voet49 regards this rationale as one of the
justifications for prescription, some authors voiced their disapproval in this regard. Van der
Merwe, for example, provides the most direct criticism:
Dit staan die eienaar immers vry om na geliewe met sy saak te handel, met inagneming van
publiek- en privaatregtelike beperkings. Hy kan, indien hy dit verkies, selfs sy saak
verwaarloos.50
42
Pienaar v Rabie 1983 (3) SA 126 (A) 138-139; Minnaar v Rautenbach [1999] 1 All SA 571 (NC) 575, 577;
Hollmann and Another v Estate Latre 1970 (3) SA 638 (A) 647. This approach was recently confirmed in De
Friedland Eiendomme (Pty) Ltd v Pretorius and Another (20744/2008) [2010] ZAGPPHC 95 (5 August 2010)
para 17.
43
See the cases referred to in the previous footnote above. See also Van der Walt AJ Property in the Margins
(2009) 174-175; Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoemans The Law of Property (5th
ed 2006) 161; Sonnekus JC & Neels JL Sakereg Vonnisbundel (2nd ed 1994) 310; Marx FE Verkrygende
Verjaring in die Suid-Afrikaanse Reg (1994) 240; Van der Merwe CG & De Waal MJ The Law of Things and
Servitudes (1993) para 149; Van der Merwe CG Sakereg (2nd ed 1989) 269.
44
For criticism of this position in English law, see section 4.3.2 below.
45
46
1983 (3) SA 126 (A).
47
1983 (3) SA 126 (A) 138. (The negligence of an owner who loses property through prescription is indeed
acknowledged in our sources as constituting one of the justifications for acquisitive prescription. However, it is
not the only or even the most important basis for acquisitive prescription ...)
48
Ex Parte Puppli 1975 (3) SA 461 (D) 463; Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and
Another 1972 (2) SA 464 (W) 468, 478; Campbell v Pietermaritzburg City Council 1966 (2) SA 674 (N) 676;
Van Wyk and Another v Louw and Another 1958 (2) SA 164 (C) 170; City of Cape Town v Abelsohns Estate
1947 (3) SA 315 (C) 325; Welgemoed v Coetzer and Others 1946 TPD 701 723; Smith and Others v Martins
Executor Dative (1899) 16 SC 148 151.
49
Voet 41.3.1.
50
Van der Merwe CG Sakereg (2nd ed 1989) 268-269. (The owner is free to use his property as he sees fit, as
long as it is in accordance with public and private law limitations. He can, if he so wishes, even neglect his
property.) See similarly Sonnekus JC Die Rei Vindicatio en Verjaring Of Nie 2010 Tydskrif vir die Suid-
Afrikaanse Reg 576-590 577; Sonnekus JC Samehang van Billikheid, Skulderkenning, Afstanddoening en
152
As the ius abutendi constitutes one of the instances of ownership, Van der Merwe argues that
it is unacceptable to base prescription on the very ground that allows owners to neglect their
property. This reasoning is founded on the idea that ownership is the most absolute right,
which formed a central part of South African property law prior to the constitutional era.51
Although this approach towards the ius abutendi is correct from a legal point of view, namely
that it entitles owners to neglect their property, it will be necessary to re-evaluate the content
of this entitlement in light of the new values enshrined by the Constitution of the Republic of
South Africa 1996 (the Constitution). It must be kept in mind that although section 25 of
the Constitution provides a negative property guarantee,52 this section also contains South
Africas commitment to land reform.53 The long-term neglect by owners who allow others
to possess their property could possibly serve as a justification for prescription, especially
if possessors were precluded from acquiring ownership in land under the previous
dispensation.54 Indeed, the dire need of homeless people in present-day South Africa can
undermine an entitlement to neglect land (by allowing people to live on it) in particular,
which can serve as an additional justification for prescription.55 However, it is worth
emphasising that an owner does not lose ownership in property through prescription by
merely exercising the ius abutendi. Ownership can only be lost if an owner exercises the ius
abutendi and by doing so allows another person to possess his property for the duration of
Stuiting van Verjaring 2006 Tydskrif vir die Suid-Afrikaanse Reg 342-356 342; Carey Miller DL & Pope A
Land Title in South Africa (2000) 157-158; Sonnekus JC & Neels JL Sakereg Vonnisbundel (2nd ed 1994) 310;
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 256; Van der Merwe CG & De Waal MJ
The Law of Things and Servitudes (1993) para 149; Marx FE Die Grondslag van Verkrygende Verjaring in
Suid-Afrika (1979) 1 Obiter 11-17 14-16.
51
Van der Merwe CG & De Waal MJ The Law of Things and Servitudes (1993) para 105: Ownership is in
principle a most comprehensive right embracing not only the power to use, to enjoy the fruits and to consume
the thing, but also the power to possess, to dispose of, to reclaim the thing from anyone who wrongfully
withholds it or to resist any unlawful invasion of the thing. (Footnotes omitted.)
52
Section 25(1) 25(3) of the Constitution; Ex Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) para 72; Van der
Walt AJ Constitutional Property Law (2005) 12-13.
53
Section 25(4) 25(9) of the Constitution; Van der Walt AJ Constitutional Property Law (2005) 13.
54
See Van der Merwe CG (with Pope A) Property in Du Bois F (ed) Willes Principles of South African Law
(9th ed 2007) 405-665 510 and sources cited. This argument is also made in favour of the bad faith possessor,
see section 4.5 below.
55
ed 2007) 405-665 510 and sources cited. See also Van der Walt AJ Property in the Margins (2009) 176,
together with the discussions concerning the personality theory, utilitarianism and law and economics theory
and the anomaly of the bad faith possessor in sections 4.4.3-4.4.4 and 4.5 respectively below.
153
the prescription period.56 I return to the punishment justification in the discussion of English
law and the developments that led to the enactment of the LRA below.57
The second ground for justifying prescription in South African law which is mostly
regarded as the main justification is based on the principle that it is in the interests of legal
certainty, as well as the public interest, that de iure status be afforded to long-existing de
facto realities.58 This justification is referred to as the legal certainty justification, for
authors argue that prescription promotes legal certainty by preventing parties from
unnecessarily litigating about ownership.59 Long-term possession of property can also create
an impression of ownership that is able to mislead third parties, which is analogous to
estoppel. In this context so it is argued it is best to grant de iure status to de facto
scenarios that have existed for some time.60 Phrased differently, the owner does not lose
ownership by neglecting the property, but rather because he allowed a certain state of
affairs which does not accord with the legal reality to persist for a long period of time.61
Unlike the punishment justification, which was criticised by some authors, one is struck by
the lack of criticism or analysis of the second justification. It would seem that most authors
56
I am indebted to Prof Sagaert for discussions that helped me to form my arguments in this regard.
57
58
Pienaar v Rabie 1983 (3) SA 126 (A) 137-138; Minnaar v Rautenbach [1999] 1 All SA 571 (NC) 577;
Mostert H & Pope A (eds) The Principles of the Law of Property in South Africa (2010) 179; Sonnekus JC Die
Rei Vindicatio en Verjaring Of Nie 2010 Tydskrif vir die Suid-Afrikaanse Reg 576-590; Van der Walt AJ
Property in the Margins (2009) 181; Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoemans The
Law of Property (5th ed 2006) 161; Sonnekus JC Samehang van Billikheid, Skulderkenning, Afstanddoening en
Stuiting van Verjaring 2006 Tydskrif vir die Suid-Afrikaanse Reg 342-356 342; Carey Miller DL & Pope A
Land Title in South Africa (2000) 157; Sonnekus JC & Neels JL Sakereg Vonnisbundel (2nd ed 1994) 309-310;
Marx FE Verkrygende Verjaring in die Suid-Afrikaanse Reg (1994) 239, 254-259; Van der Merwe CG Sakereg
(2nd ed 1989) 269; Schorer W Aanteekeningen van mr Willem Schorer, over de Inleidinge tot de Hollandsche
Rechts-Geleerdheid, van mr Hugo de Groot (1784) 2.7.3. See also Voet 41.3.1; Grotius Inleidinge 2.7.4; De
Wet JC Opuscula Miscellanea (1979) 78; Marx FE Die Grondslag van Verkrygende Verjaring in Suid-Afrika
(1979) 1 Obiter 11-17 13-17; Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 82-83; Wessels
JW History of the Roman-Dutch Law (1908) 634. Grotius Inleidinge 2.7.4 is of the opinion that one of the
justifications for prescription is [om] de eigendommen te stellen in verzeeckerheid ... ([To] place the
property in certainty.)
59
Compare Hall CG Maasdorps Institutes of South African Law Volume II The Law of Property (10th ed
1976) 76, which is based on Voet 41.3.1, Grotius Inleidinge 2.7.4 and Schorer W Aanteekeningen van mr
Willem Schorer, over de Inleidinge tot de Hollandsche Rechts-Geleerdheid, van mr Hugo de Groot (1784) 2.7.3.
60
Mostert H & Pope A (eds) The Principles of the Law of Property in South Africa (2010) 179; Sonnekus JC
Samehang van Billikheid, Skulderkenning, Afstanddoening en Stuiting van Verjaring 2006 Tydskrif vir die
Suid-Afrikaanse Reg 342-356 342; Carey Miller DL & Pope A Land Title in South Africa (2000) 157; Sonnekus
JC & Neels JL Sakereg Vonnisbundel (2nd ed 1994) 309-310; Marx FE Verkrygende Verjaring in die Suid-
Afrikaanse Reg (1994) 256-257; Van der Merwe CG & De Waal MJ The Law of Things and Servitudes (1993)
para 149; Van der Merwe CG Sakereg (2nd ed 1989) 269; De Wet JC Opuscula Miscellanea (1979) 80-98; Marx
FE Die Grondslag van Verkrygende Verjaring in Suid-Afrika (1979) 1 Obiter 11-17 13-17. See also the
sources mentioned in the previous footnote above.
61
Welgemoed v Coetzer and Others 1946 TPD 701 711-712; Badenhorst PJ, Pienaar JM & Mostert H
Silberberg and Schoemans The Law of Property (5th ed 2006) 161; Marx FE Verkrygende Verjaring in die
Suid-Afrikaanse Reg (1994) 257; Van der Merwe CG Sakereg (2nd ed 1989) 269-270.
154
and court decisions are ad idem regarding this ground and that they merely accept it as still
being relevant. Nevertheless, this ground, together with the punishment justification, has been
put into question in the following obiter dictum:
The justification [for acquisitive prescription] is said to have been a need or desire to penalise
neglectful owners. There may have been some social justification for that approach in a village
society where it was easy for an owner to supervise and inspect his property, though even there
one might question the equity of favouring the cynical usurper at the expense of one whose fault
was no more than idleness or negligence. In a modern society, where unimproved property is
frequently held for long periods by owners who live far away, and sometimes even abroad, the
social desirability of [acquisitive prescription] may be questioned.62 (Emphasis added.)
Although not directly aimed at the legal certainty justification,63 this seems to be the only
criticism albeit indirect that has to date been raised against the promotion of legal
certainty argument. As will be seen,64 this justification was recently re-evaluated in
developments that occurred in the English law of adverse possession. These developments
are likely to have implications for how prescription is justified in South African law and are
discussed in greater detail below.65
The legal certainty justification, like the punishment justification, can also be used to justify
situations where mala fide possessors acquire ownership through prescription.66 This is
because the fides of the possessor is irrelevant for purposes of promoting legal certainty
through prescription. In other words, this aim of prescription is achieved regardless of
whether the possessor possessed the property in good or bad faith.
Another justification advanced in favour of prescription, which I view as a sub-category of

the legal certainty justification, is the fact that prescription simplifies the process of proving
ownership.67 In this sense prescription prevents the so-called probatio diabolica68 one faces if
62
Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 468. It is worth
emphasising that this case was decided long before the dawn of constitutionalism in South Africa, which makes
this passage worthy of note. To the same effect as the Morkels case are Pienaar v Rabie 1983 (3) SA 126 (A)
138 and Sonnekus JC & Neels JL Sakereg Vonnisbundel (2nd ed 1994) 210.
63
Since the first sentence in this passage refers to a need or desire to penalise neglectful owners, it is clear that
this critique by Colman J is aimed only at the punishment justification. Nonetheless, the legal certainty
argument is analogous to this justification and therefore this passage can be read as pertaining to both
justifications.
64
65
66
Van der Walt AJ Property in the Margins (2009) 174. See also the arguments to this effect in section 4.5
below.
67
Grotius Inleidinge 2.7.4; Schorer W Aanteekeningen van mr Willem Schorer, over de Inleidinge tot de
Hollandsche Rechts-Geleerdheid, van mr Hugo de Groot (1784) 2.7.3; Van der Merwe CG & De Waal MJ The
155
it would be impossible to acquire property over time through prescription.69 Here prescription
seems to operate more as a rule of the law of evidence than as a notion of property law.
However, this argument seems to carry more weight where land is not surveyed and also
where it is hard to determine who the true owner70 of land is in the absence of a formal
Land Registry that guarantees the correctness of the register. Consequently, this argument
must also be re-evaluated.71
A third justification can be deduced from the following obiter dictum in Pienaar v Rabie:72
Onder hierdie omstandighede kan daar skaars sprake wees van een enkele samehangende
filosofiese grondslag wat onderliggend aan die regsfiguur van verkrygende verjaring in al sy
gestaltes is. Wat n mens eerder vind by juriste is dat bepaalde regsrels verduidelik of
geregverdig word deur morele of filosofiese argumente.73 (Emphasis added.)
According to Grosskopf JA, there is no single philosophical justification for prescription and
it has to be justified through moral and philosophical arguments. This opens the door for a
jurisprudential discussion of the justifications behind prescription. This approach is to be
applauded, since it widens the spectrum of arguments one can use to justify prescription in
South African law. Unfortunately, the Appellate Division of the Supreme Court did not
expand on what the content of these moral or philosophical arguments may be. Against this
background it is helpful to investigate how prescription can be justified by using the labour
theory, Radins personality theory and utilitarianism and law and economics theory.74
Interestingly, these theories are analogous to the traditional justifications for prescription in
South African law. The next section focuses on the justifications for prescription in modern-
day Dutch and French law.
Law of Things and Servitudes (1993) para 149; Van der Merwe CG Sakereg (2nd ed 1989) 270; Wessels JW
History of the Roman-Dutch Law (1908) 634. Grotius Inleidinge 2.7.4 states that one of the justifications for
prescription is [om] de eigendommen te stellen in verzeeckerheid ... ([To] place the property in certainty.)
To the same effect is Van Oven JC Leerboek van Romeinsch Privaatrecht (3rd ed 1948) 90, since he opines that
without prescription the eigendomsbewijs een probatio diabolica zou wezen. ([P]roof of ownership would be
a devils burden.)
68
Devils burden.
69
Van der Merwe CG Sakereg (2nd ed 1989) 270. See also the sources cited in footnote 67 above.
70
This term is derived from Merrill TW Property Rules, Liability Rules, and Adverse Possession (1985) 79
Northwestern University Law Review 1122-1154 1125.
71
This justification is analogous to the justification in English law that defendants should be protected from
stale claims: See section 4.3.2 below.
72
1983 (3) SA 126 (A).
73
Pienaar v Rabie 1983 (3) SA 126 (A) 135. (Under these circumstances, one can hardly speak of a single
encompassing philosophical foundation that underlies the legal institution of acquisitive prescription in all its
forms. Instead, one finds that jurists explain and justify certain legal rules with regard to moral or philosophical
arguments.)
74
These three trends are discussed in section 4.4 below.
156
4.2.4 Dutch and French law
In modern Dutch law verkrijgende verjaring is also justified on the premise that it is
undesirable for a factual situation regarding property not to be in line with the judicial
reality.75 In the words of Mijnssen et al, [p]rescription is an institution that primarily exists
for the sake of the public order.76 This complies with the Roman-Dutch and South African
justification that prescription is in the public interest because it promotes legal certainty.77 In
this sense it is also argued that prescription simplifies the process of proving ownership
because it eliminates the probatio diabolica.78 However, it seems that Dutch prescription law
does not regard the punishment justification as an important rationale, but rather views it as a
result that is ancillary to the effects of prescription. Furthermore, Reehuis and Heisterkamp
state that verkrijgende verjaring is not aimed at rewarding the bad faith possessor with
ownership:79
De bezitter, die op grond van art. 3:119 lid 1 wordt vermoed de rechthebbende te zijn, verwerft
op den duur die status wanneer dat aanvankelijk niet het geval was. Daarbij staat niet de
bevoordeling van de bezitter voorop, maar het algemeen belang en in het bijzonder de
75
Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 423: [H]et [is] onwenslijk dat een feitlijke
toestand niet overeenstemt met de rechtstoestand van een goed. ([I]t [is] undesirable for a factual situation
regarding property not to be in line with the judicial reality.) See also Snijders HJ & Rank-Berenschot EB
Goederenrecht (4th ed 2007) para 249; Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para
329; Van Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3 417.
According to Sagaert V De Verkrijgende Verjaring van Onroerende Goederen Herbezocht. Een Aanzet tot het
Debat over het Verjaringsrecht (2007) 39 Rechtskundig Weekblad 1582-1597 1585, this justification is also
applicable to Belgian prescription law.
76
Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 423: Verjaring is een rechtsfiguur die in de
eerste plaats bestaat ter wille van de maatschappelijke orde. (Prescription is an institution that primarily exists
for the sake of the public order.) See also Snijders HJ & Rank-Berenschot EB Goederenrecht (4th ed 2007)
para 249; Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 329.
77
See the discussions in this regard in sections 4.2.2-4.2.3 above. See also Snijders HJ & Rank-Berenschot EB
Goederenrecht (4th ed 2007) para 249; Mijnssen FHJ et al Mr C Assers Handleiding tot de Beoefening van het
Nederlands Burgerlijk Recht: Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 423; Reehuis
WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 330; Van Zeben CJ et al Parlementaire
78
Goederenrecht Algemeen Goederenrecht (15th ed 2006) para 423; Snijders HJ & Rank-Berenschot EB
331. This justification is also found in Belgian law: See Sagaert V De Verkrijgende Verjaring van Onroerende
Goederen Herbezocht. Een Aanzet tot het Debat over het Verjaringsrecht (2007) 39 Rechtskundig Weekblad
1582-1597 1586-1587.
79
See also Van Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3
417.
157
rechtzekerheid die met duidelijke goederenrechtelijke verhoudingen is gediend. Medelijden met
de oorspronklijk rechthebbende voelt de wetgewer niet. 80 (Original emphasis.)
It is clear that the primary justification for verkrijgende verjaring is to promote legal
certainty, even though it occurs at the expense of the owner who loses ownership through
prescription.81 The punishment justification advanced to justify prescription in Roman-
Dutch and South African law is thus regarded as no more than a secondary result of
prescription in Dutch law. Verkrijgende verjaring also has a corrective function in cases
where all the formalities for transfer of ownership by way of derivative acquisition of
ownership have not been complied with, for example when someone who did not have the
capacity to act attempted to transfer ownership to another person.82 Snijders and Rank-
Berenschot admit that [p]rescription is not primarily based on motives of reasonableness and
equity. In this sense it is possible for a wrong to be converted into a right after a certain
period of time.83 I argue that this approach namely that the traditional justifications for
prescription are still accepted without question needs to be re-examined. The time is ripe
for re-evaluating the rationale behind this legal institution to determine whether it is still
relevant in modern society. Finally, it is worth emphasising that in Dutch law immovables
possessed in good faith can be acquired after 10 years,84 while immovables held in bad faith
can only be acquired after 20 years.85
The rationale for prescription acquisitive in French law is that a person who has taken care of
anothers property should be confirmed in his possessory situation without the risk of being
80
Reehuis WHM & Heisterkamp AHT Goederenrecht (12th ed 2006) para 329. (The possessor, who according
to BW 3:119.1, is presumed to be the person entitled to the property, acquires that status through time which
initially was not the case. Consequently, the benefit the possessor obtains is not the most important aspect here,
but rather the public interest and especially legal certainty that is achieved through property law relationships
that are certain. The legislature is not sympathetic towards the original owner.) See also Van Zeben CJ et al
81
Van Zeben CJ et al Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek (1981) Book 3 417: Het
gaat hier niet om een sanctioneren van der kwade trouw, doch om het beginsel, dat na een zeker tijdsverloop het
recht zich bij de feiten dient aan te sluiten. (It is not about promoting bad faith, but rather to achieve the
purpose of bringing the factual situation in line with legal reality after a certain period of time has elapsed.) See
also Snijders HJ & Rank-Berenschot EB Goederenrecht (4th ed 2007) para 249; Mijnssen FHJ et al Mr C
Assers Handleiding tot de Beoefening van het Nederlands Burgerlijk Recht: Goederenrecht Algemeen
329.
82
83
Snijders HJ & Rank-Berenschot EB Goederenrecht (4th ed 2007) para 249: Verjaring word niet primair
ingegeven door motieven van redelijheid en billijkheid. Zo kan het gebeuren dat onrecht door tijdsverloop toch
recht wordt. (Prescription is not primarily based on motives of reasonableness and equity. In this sense it is
possible for a wrong to be converted into a right after a certain period of time.)
84
BW 3:99.1.
85
2006) para 329 and the discussions in sections 3.3.2.2.2-3.3.2.2.3 of chapter three above.
158
evicted after a certain period of time has elapsed.86 According to Steiner, the harshness of
this approach is justified because it serves as an incentive to owners to look after their
property.87 Prescription acquisitive is, thus, also regarded as promoting legal certainty,88
while the fact that it punishes the neglectful owner is considered as being ancillary to the
legal certainty argument. In French prescription law, a person can acquire immovable
property held in bad faith after 30 years, whereas only 10 years are required for immovable
property possessed in good faith and under just title.89 Yet, Bell, Boyron and Whittaker voice
their concern about this justification in the modern era where immovable property is
registered:
Obviously these days registration of title to land and in relation to some chattels offers an
alternative and better method of determining who is the owner of the property.90
Despite this concern, Bell, Boyron and Whittaker state in the very next sentence that
prescription acquisitive can be useful in dealing with some cases of long-standing
possession.91 Unfortunately, these authors do not elaborate in this regard.
It is clear that prescription is primarily justified on two grounds in Roman-Dutch and modern
South African law, whereas Dutch and French law generally accept one justification for this
legal institution. In the case of both Roman-Dutch and South African law, the first ground is
that owners who neglect their property should be punished by losing ownership, with the
second ground advocating the promotion of legal certainty. However, Dutch and French law
only regard the latter rationale as the main justification for prescription.92 Both these
justifications stem from a time that was different from the present. Against this background
and especially since the dawning of the constitutional era in South Africa it is important
that these justifications be re-evaluated and placed under scrutiny to determine whether they
still hold water. Special regard must also be had to the scenario where a mala fide possessor
86
87
88
Bell J, Boyron S & Whittaker S Principles of French Law (2nd ed 2008) 277, where the authors state that [i]f
a person has held the property for a long period then that has become part of social organization and should not
be disturbed.
89
Article 2272 of the Code Civil, translated by Steiner E French Law A Comparative Approach (2010) 396.
90
Bell J, Boyron S & Whittaker S Principles of French Law (2nd ed 2008) 277. See especially the discussion of
adverse possession and the developments that led to the enactment of the Land Registration Act 2002 below in
section 4.3.2, where this was one of the main arguments against having adverse possession in relation to
registered land when the register provides conclusive proof of ownership.
91
92
The fact that prescription serves as an aid to prove ownership can be seen as correlative to the justification of
promoting legal certainty.
159
acquires ownership through prescription, as it prima facie seems unjust to reward such a
cynical usurper93 with ownership.94
4.3 The grounds for justifying adverse possession in English law and the
developments that led to the enactment of the Land Registration Act 2002
4.3.1 Introduction identifying the root of the problem
The systems discussed above illustrate a lack of critical analysis pertaining to the grounds for
justifying prescription.95 It seems as if the legal certainty argument runs like a golden thread
through each of those jurisdictions, but that the authors never consider whether it is still valid
today. English law stands in contrast to these systems concerning the rationale for adverse
possession.96 This is because English law has recently undergone far-reaching developments
in adverse possession law, which culminated in the enactment of the 2002 Act.97 This Act
together with developments that led to its enactment are important for the way South
African law justifies prescription and therefore needs to be analysed.
The point of departure is JA Pye (Oxford) Ltd and Another v Graham and Another,98 as it
highlighted some of the modern-day problems of adverse possession. This case was decided
before the enactment of the LRA, when the old rules of adverse possession still applied to
both registered and unregistered land. The facts of this case, together with its implications
regarding the substantive requirements for adverse possession, were already discussed in the
previous chapter and are not repeated here.99 The focus now falls on Neubergers J criticism
of adverse possession, which sketches the background for this discussion. According to
Neuberger J, his conclusion in this decision was one that he arrive[d] at with no
enthusiasm.100 He bases this observation on the fact that the result does not accord with
93
Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 468.
94
This issue is discussed in section 4.5 below.
95
One can also observe this fact in Australian law: See Irving DK Should the Law Recognise the Acquisition
of Title by Adverse Possession? (1985) 2 Australian Property Law Journal 112-119 114.
96
Adverse possession is the common law equivalent of acquisitive prescription.
97
This act came into effect on 13 October 2003 and is prospective in nature: See Ofulue v Bossert [2009] UKHL
16; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419.
98
[2000] Ch 676.
99
See section 3.2.3 of chapter three above.
100
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 709. See similarly JA Pye (Oxford)
Ltd v Graham [2003] 1 AC 419 426 per Lord Bingham.
160
justice and [that it] cannot be justified by practical considerations.101 He confirms that the
traditional justification for adverse possession was to prevent uncertainties in relation to the
ownership of land.102 He also emphasises that these uncertainties are but for a few
exceptions unlikely to arise in the context of registered land, since owners of registered land
can be identified by simply inspecting the land register.103 Neuberger J further acknowledges
that adverse possession played an important role by preventing uncertainties and unnecessary
litigation during the days when land was still unregistered.104
Another justification referred to is that people should not be able to sit or sleep on their rights
indefinitely.105 Neuberger J criticises this rationale and states that it is difficult to see why an
adverse possessor should be able to acquire land from an owner merely because such owner
had no immediate use for it and was content to let such adverse possessor trespass on the
land.106 To conclude that an owner who slept on his rights should lose ownership appears to
Neuberger J to be illogical and disproportionate.107 He views this state of affairs as illogical
because the only reason that the owner can be said to have sat on his rights is because of the
existence of the 12-year limitation period in the first place; if no limitation period existed the
owner would be entitled to claim possession whenever he actually wanted the land.108
Neuberger J said the following concerning the disproportionate effect of adverse possession:
[I]n a climate of increasing awareness of human rights including the right to enjoy ones own
property, it does seem draconian to the owner and a windfall for the squatter that, just because
the owner has taken no steps to evict a squatter for 12 years, the owner should lose 25 hectares
of land to the squatter with no compensation whatsoever.109
101
102
As seen in sections 4.2.2-4.2.4 above, this is regarded as an important justification in Roman-Dutch, South
African, Dutch and French law. See further the discussion in section 4.3.2 below.
103
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 709; JA Pye (Oxford) Ltd v Graham
[2003] 1 AC 419 426 per Lord Bingham. See also the position in French law discussed in section 4.2.4 above.
104
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 709-710; JA Pye (Oxford) Ltd v
Graham [2003] 1 AC 419 426 per Lord Bingham.
105
106
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 710; JA Pye (Oxford) Ltd v Graham
[2003] 1 AC 419 426 per Lord Bingham.
107
108
109
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 710. Although adverse possession
as it stood prior to the enactment of the LRA was found to be in line with Article 1 of Protocol No 1 to the
European Convention on Human Rights and Fundamental Freedoms 1950 in JA Pye (Oxford) Ltd v United
Kingdom (2008) 46 EHRR 45 (GC), this does not necessarily mean that prescription will survive a
constitutional challenge in the Constitutional Court of South Africa. This issue is discussed in chapter five,
which specifically focuses on the question whether prescription is justifiable in the constitutional setting of
South Africa.
161
These objections to adverse possession are more intense in comparison to those found in the
jurisdictions discussed earlier, which are characterised by a lack of critical reflection in this
regard. Neubergers J criticism of adverse possession was echoed by the House of Lords in
JA Pye (Oxford) Ltd v Graham.110 In that decision, Lord Bingham commented on adverse
possession as follows:
In the case of unregistered land, and in the days before registration became the norm, such a
result could no doubt be justified as avoiding protracted uncertainty where the title of land lay.
But where land is registered it is difficult to see any justification for a legal rule which compels
such an apparently unjust result, and even harder to see why the party gaining title should not be
required to pay some compensation at least to the party losing it. It is reassuring to learn that the
Land Registration Act 2002 has addressed the risk that a registered owner may lose his title
through inadvertence.111 (Emphasis added.)
It is plain that English law also justifies adverse possession on the grounds that it promotes
legal certainty and avoids unnecessary litigation concerning ownership of land. However, as I
illustrate below,112 these justifications only seem to hold water in situations where land is
unregistered or where the Land Register does not provide conclusive proof of ownership. As
soon as land is registered and one is able to determine who the owner is by investigating the
register, it becomes hard to see what principle of justice entitles the [adverse possessor] to
acquire the land.113
One of the most influential works pertaining to the justifications for adverse possession in
English law is an article by Dockray from 1985.114 This article, which the English Law
Commission relied on in their Reports115 regarding possible reforms concerning adverse
possession law, provides an evaluation of adverse possession and the rationale for having
such a rule in a legal system. This article being the primary source serves as the point of
departure for this discussion, together with the Law Commissions findings. Use is also made
of other sources concerning the justifications of adverse possession. I conclude this section
with a brief exposition of how the 2002 Act regulates adverse possession today.
110
[2003] 1 AC 419.
111
[2003] 1 AC 419 426 per Lord Bingham. See similarly Lord Hope at 446-447.
112
113
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 709-710; JA Pye (Oxford) Ltd v
Graham [2003] 1 AC 419 426 per Lord Bingham.
114
115
Land Registration for the Twenty-First Century: A Conveyancing Revolution Number 271 (July 2001);
Land Registration for the Twenty-First Century: A Consultative Document Number 254 (September 1998).
162
4.3.2 Criticism of the traditional justifications for adverse possession
Dockray is sceptical about adverse possessions role in English law, which concern is
captured as follows:
How, it might be asked, could there be any rational explanation for depriving an owner of
property, simply because of the long continued possession of another. And why should the law
seem to ignore the demerits of a trespasser? Why should it protect a wrongdoer a person
whose conduct might be tantamount to theft but whom the law may nevertheless aid even
against an innocent owner, that is, a person who did not know and could not have discovered
that time had begun to run[?] Why should the long suffering of injury bar the remedy? 116
(Original emphasis.)
Adverse possession does not require good faith, which means that mala fide squatters just
as in South African law are also able to obtain ownership.117 Indeed, one of the problems of
adverse possession is that it seems to reward mala fide squatters with ownership.118
Ballantine describes this state of affairs as an anomalous instance of maturing a wrong into a
right contrary to one of the most fundamental axioms of the law.119 Dockray identifies three
justifications attributed to the law of adverse possession against this background, namely
i) to protect long-term possessors from stale claims (also referred to as the quieting
of title);120
116
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 272. See similarly Land
Registration for the Twenty-First Century: A Consultative Document Number 254 (September 1998) para
10.5; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 426 per Lord Bingham; JA Pye (Oxford) Ltd and Another
v Graham and Another [2000] Ch 676 709; Buckinghamshire County Council v Moran [1990] Ch 623 643 per
Slade LJ.
117
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 436-437 per Lord Brown-Wilkinson.
118
Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after the Land
Registration Act 2002 (2007) 27 Legal Studies 236-260 236-237; Dixon M The Reform of Property Law and
the Land Registration Act 2002: A Risk Assessment 2003 Conveyancer 136-156 151; Irving DK Should the
Law Recognise the Acquisition of Title by Adverse Possession? (1985) 2 Australian Property Law Journal
112-119 113-114; Merrill TW Property Rules, Liability Rules, and Adverse Possession (1985) 79
Northwestern University Law Review 1122-1154 1125; Ballantine HW Title by Adverse Possession (1919) 32
Harvard Law Review 135-159 135. I am indebted to Dr Dixon for bringing the article of Cobb and Fox under
my attention.
119
Ballantine HW Title by Adverse Possession (1919) 32 Harvard Law Review 135-159 135. See further
University Law Review 1037-1096 1037, who also refers to this result as an anomalous figure in the law.
120
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 272; Land Registration for
the Twenty-First Century: A Conveyancing Revolution Number 271 (July 2001) paras 2.71, 14.54.1; Land
10.6; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 426 per Lord Bingham; JA Pye (Oxford) Ltd and Another
v Graham and Another [2000] Ch 676 709; ACourt v Cross (1825) 3 Bing 329 332-333; Cholmondeley v
Clinton (1820) 2 Jac & W 1 139-140; Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.8; Smith
RJ Property Law (6th ed 2009) 63; Harpum C, Bridge S & Dixon M Megarry and Wade: The Law of Real
Property (7th ed 2008) para 35-001; Cobb N & Fox L Living Outside the System? The (Im)morality of Urban
Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260 240. See also Caterina R
Some Comparative Remarks on JA Pye (Oxford) v. The United Kingdom (2007) 15 European Review of
Private Law 273-279 274; Fox D Relativity of Title at Law and in Equity (2006) 65 Cambridge Law Journal
163
ii) to encourage owners not to sleep on their rights;121 and
iii) to ensure that a possessor can feel confident that his right cannot be called into
question after a certain period of time has elapsed.122
One can equate the first justification with the one found in South African law, namely that
adverse possession prevents a multiplicity of lawsuits123 where evidence pertaining to
ownership has been lost.124 This ground is premised on the reasoning that it could be difficult
for parties to prove either claims or defences in situations where the events complained of
occurred long ago, which can cause litigation to become too great a risk.125 This mode of
thought is described by Best CJ, who states that [l]ong dormant claims often have more of
cruelty than of justice in them.126 In this context adverse possession operates as a
conclusive presumption against potential claims after a certain period of time has
330-365 338-339; Irving DK Should the Law Recognise the Acquisition of Title by Adverse Possession?
(1985) 2 Australian Property Law Journal 112-119 114; Merrill TW Property Rules, Liability Rules, and
Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1128; Ballantine HW Title by
Adverse Possession (1919) 32 Harvard Law Review 135-159 135, 143-144; Holmes OW The Path of the
Law (1897) 10 Harvard Law Review 457-478 476.
121
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 272-274; Land
Registration for the Twenty-First Century: A Conveyancing Revolution Number 271 (July 2001) paras 2.71,
14.54.1; Land Registration for the Twenty-First Century: A Consultative Document Number 254 (September
1998) para 10.6; JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 710; Gray K & Gray
SF Elements of Land Law (5th ed 2009) para 9.1.11; Smith RJ Property Law (6th ed 2009) 63-64. See also
Caterina R Some Comparative Remarks on JA Pye (Oxford) v. The United Kingdom (2007) 15 European
Review of Private Law 273-279 274; Stake JE The Uneasy Case for Adverse Possession (2001) 89
Georgetown Law Journal 2419-2474 2434-2435; Irving DK Should the Law Recognise the Acquisition of
Title by Adverse Possession? (1985) 2 Australian Property Law Journal 112-119 114; Merrill TW Property
Rules, Liability Rules, and Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154
1130; Holmes OW The Path of the Law (1897) 10 Harvard Law Review 457-478 476. To the contrary is
Ballantine HW Title by Adverse Possession (1919) 32 Harvard Law Review 135-159 135, who thinks that
this does not form one of the justifications for adverse possession.
122
the Twenty-First Century: A Conveyancing Revolution Number 271 (July 2001) para 14.54.2; Land
10.7; Cholmondeley v Clinton (1820) 2 Jac & W 1 139-140; Gray K & Gray SF Elements of Land Law (5th ed
2009) para 9.1.9; Harpum C, Bridge S & Dixon M Megarry and Wade: The Law of Real Property (7th ed 2008)
para 35-001. See also Irving DK Should the Law Recognise the Acquisition of Title by Adverse Possession?
(1985) 2 Australian Property Law Journal 112-119 114; Merrill TW Property Rules, Liability Rules, and
Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1131-1132.
123
Hall CG Maasdorps Institutes of South African Law Volume II The Law of Property (10th ed 1976) 76.
124
See the discussion of South African law in section 4.2.2 above. See also Dockray M Why do we Need
Adverse Possession? 1985 Conveyancer 272-284 272-273; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419
426 per Lord Bingham; Harpum C, Bridge S & Dixon M Megarry and Wade: The Law of Real Property (7th ed
2008) para 35-001.
125
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 273; Cholmondeley v
Clinton (1820) 2 Jac & W 1 139-140; Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.8; Smith
RJ Property Law (6th ed 2009) 63; Harpum C, Bridge S & Dixon M Megarry and Wade: The Law of Real
Property (7th ed 2008) para 35-001. See also Irving DK Should the Law Recognise the Acquisition of Title by
Adverse Possession? (1985) 2 Australian Property Law Journal 112-119 114; Merrill TW Property Rules,
Liability Rules, and Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1128.
126
ACourt v Cross (1825) 3 Bing 329 332-333.
164
elapsed.127 This justification also has a second element, namely the quieting of titles. This
rationale encompasses the fact that adverse possession helps to quiet titles when all the
formalities for transfer of ownership such as registration in the case of immovables have
not been complied with. Under these circumstances adverse possession serves as a
mechanism to confirm the ownership of the transferee, which would otherwise be impossible
if adverse possession did not exist to cure defects of this nature. The quieting of titles
rationale is analogous to the prevention of the probatio diabolica discussed above.128
Although Dockray acknowledges that adverse possession can usefully avoid the dangers of
adjudicating on stale claims, he states that this ground can provide no more than a partial
explanation for adverse possession.129 He bases this observation on two reasons. Firstly, it is
assumed that an owner is generally aware that a right to reclaim possession accrued in his
favour.130 In this context it would be justified for adverse possession to prevent the owner
from reclaiming possession if such owner knew or ought to have known of the accrual of the
right, but still did not do anything to rectify the situation. In such a scenario it is
understandable why the owner should be punished for neglecting the property.
Nonetheless, adverse possession also operates in situations where the owner was unaware of
the accrual of this right.131 Here it is more difficult to justify adverse possession, especially if
the owner did not know or could not have known that it was possible to reclaim
possession. Under these circumstances one can rightly ask whether such a position accord[s]
127
Merrill TW Property Rules, Liability Rules, and Adverse Possession (1985) 79 Northwestern University
Law Review 1122-1154 1128.
128
Both South African and Dutch law recognise this justification, see sections 4.2.3-4.2.4 above.
129
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 273. To the same effect are
Land Registration for the Twenty-First Century: A Conveyancing Revolution Number 271 (July 2001) para
1998) para 10.6; Irving DK Should the Law Recognise the Acquisition of Title by Adverse Possession?
(1985) 2 Australian Property Law Journal 112-119 114. Merrill TW Property Rules, Liability Rules, and
Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1128 partially agrees with this
argument, although he states that caution must be had because [r]ecorded deeds may contain defects or
omissions; the court house or title plant may burn down [or] surveying errors may ... result[.] in misplaced
Boundary markers.
130
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 273; Irving DK Should
the Law Recognise the Acquisition of Title by Adverse Possession? (1985) 2 Australian Property Law Journal
112-119 114.
131
the Twenty-First Century: A Conveyancing Revolution Number 271 (July 2001) para 2.71; Land Registration
for the Twenty-First Century: A Consultative Document Number 254 (September 1998) para 10.6; Powell v
McFarlane (1979) 38 P & CR 452 480; Cholmondeley v Clinton (1820) 2 Jac & W 1 139-140; Rains v Buxton
(1880) 14 Ch D 537 540-541; Smith RJ Property Law (6th ed 2009) 64. See also Irving DK Should the Law
Recognise the Acquisition of Title by Adverse Possession? (1985) 2 Australian Property Law Journal 112-119
114.
165
with justice and [whether it is] justified by practical considerations.132 Secondly, adverse
possession prevents the recovery of possession, even if the facts are undisputed and
possession was wrongful (mala fide) throughout the limitation period.133 The second reason is
a valid objection to adverse possession, especially in situations where evidence is either
available for the owner to prove his case or where the squatter acknowledges that he has no
entitlement to the property. This argument carries even more weight in situations where land
is registered and legislation guarantees the correctness of the register.134 From this reasoning
Dockray argues that staleness, though an important consideration, cannot on its own properly
justify adverse possession.135 Yet, despite Dockrays persuasive arguments in this context,
these objections can be overcome by treating adverse possession as a mechanical entitlement
determination rule as Merrill suggests.136 This possibility is discussed in section 4.4.4
below, which specifically focuses on the economic justifications behind adverse possession.
The second justification is that adverse possession encourages owners not to sleep on their
rights.137 Thus, adverse possession serves as an incentive for owners to look after their
property that if phrased negatively implies that the law should punish owners for
neglecting their property, which is similar to the punishment justification in Roman-Dutch
132
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 709. To the same effect is Land
Registration for the Twenty-First Century: A Conveyancing Revolution Number 271 (July 2001) para 14.54.1.
133
10.6. See also Irving DK Should the Law Recognise the Acquisition of Title by Adverse Possession? (1985) 2
Australian Property Law Journal 112-119 114.
134
Land Registration for the Twenty-First Century: A Conveyancing Revolution Number 271 (July 2001)
paras 14.2-14.3; Land Registration for the Twenty-First Century: A Consultative Document Number 254
(September 1998) paras 10.9-10.11; Smith RJ Property Law (6th ed 2009) 63.
135
1998) para 10.6. See also Irving DK Should the Law Recognise the Acquisition of Title by Adverse
Possession? (1985) 2 Australian Property Law Journal 112-119 114; Holmes OW The Path of the Law
(1897) 10 Harvard Law Review 457-478 476. To the contrary is Clarke A Use, Time, and Entitlement (2004)
57 Current Legal Problems 239-275 250-254, who points out that this argument even in relation to registered
land is an oversimplification.
136
Law Review 1122-1154 1137-1145.
137
10.6; JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 710; Gray K & Gray SF Elements
of Land Law (5th ed 2009) para 9.1.11; Smith RJ Property Law (6th ed 2009) 63-64. See also Irving DK Should
112-119 114; Holmes OW The Path of the Law (1897) 10 Harvard Law Review 457-478 476.
166
and South African law.138 This justification is based on the assumption that owners who sleep
on their rights should not be able to enforce them years later, as it can be unjust to allow old
claims to be asserted.139 If they were to be allowed, Smith argues that it can lead to criticism
and even violence.140 However, Dockray states that adverse possession can only encourage
an owner not to sleep on his rights if such owner knows (or ought to have known) that time
has started to run.141 Nonetheless, adverse possession can bar an owner from recovering
possession even if he is blameless, since adverse possession operates despite whether the
owner was negligent or not.142 It may be fair to say that owners who knowingly143 sleep on
their rights should be punished by losing ownership, but knowledge (actual or constructive)
of the accrual of the right is not a requirement for purposes of adverse possession.144
Therefore, this justification may lead to injustice when the reasonable owner could not have
known of the accrual of the right, which can occur in situations where the owners estates are
large or numerous.145 Dockray concludes that the encouragement argument can thus not be
138
See sections 4.2.2-4.2.3 respectively above. See also Merrill TW Property Rules, Liability Rules, and
Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1130; Holmes OW The Path
of the Law (1897) 10 Harvard Law Review 457-478 476.
139
10.6; JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 710; Cholmondeley v Clinton
(1820) 2 Jac & W 1 139-140; Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.11; Smith RJ
Property Law (6th ed 2009) 63-64; Harpum C, Bridge S & Dixon M Megarry and Wade: The Law of Real
Property (7th ed 2008) para 35-001. This justification is analogous to the first one discussed earlier, namely that
long-term possessors ought to be protected from stale claims.
140
Cholmondeley v Clinton (1820) 2 Jac & W 1 139-140; Smith RJ Property Law (6th ed 2009) 64; Harpum C,
Bridge S & Dixon M Megarry and Wade: The Law of Real Property (7th ed 2008) para 35-001. To the same
effect is Merrill TW Property Rules, Liability Rules, and Adverse Possession (1985) 79 Northwestern
University Law Review 1122-1154 1131. See also Holmes OW The Path of the Law (1897) 10 Harvard Law
Review 457-478 476 and the criticism he voices.
141
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 274; Irving DK Should
112-119 114.
142
for the Twenty-First Century: A Consultative Document Number 254 (September 1998) para 10.6; Powell v
McFarlane (1979) 38 P & CR 452 480; Rains v Buxton (1880) 14 Ch D 537 540-541; Cholmondeley v Clinton
(1820) 2 Jac & W 1 139-140; Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.35; Smith RJ
Property Law (6th ed 2009) 64. See also Irving DK Should the Law Recognise the Acquisition of Title by
Adverse Possession? (1985) 2 Australian Property Law Journal 112-119 114.
143
Either intentionally or negligently.
144
10.6; Powell v McFarlane (1979) 38 P & CR 452 480; Rains v Buxton (1880) 14 Ch D 537 540-541; Gray K &
Gray SF Elements of Land Law (5th ed 2009) para 9.1.35; Smith RJ Property Law (6th ed 2009) 64.
145
Land Registration for the Twenty-First Century: A Consultative Document Number 254 (September 1998)
para 10.6 and sources there cited, together with Land Registration for the Twenty-First Century: A
Conveyancing Revolution Number 271 (July 2001) para 2.71, where it is stated that this state of affairs is also
likely to occur in situations concerning public bodies owning multiple properties.
167
regarded as a major justification for adverse possession.146 Cobb and Fox criticise this
conclusion because no distinction is drawn between owners who cannot and those who do not
supervise their properties, while the Law Commission merely assumes the moral
blameworthiness of squatters together with the blamelessness of owners.147 Such a distinction
is important, since the blameworthiness of the owner can play an important role when it
needs to be determined whether the loss of ownership through adverse possession is
justified.148 Nonetheless, the Law Commission accepted Dockrays objection,149 one of the
reasons being that by denying owners the right to reclaim their property imposes a positive
duty on them to police their land, which can involve expensive monitoring costs.150
Nonetheless, this ground for justifying adverse possession is justifiable in terms of law and
economics theory, since transaction costs are kept low if such an affirmative obligation is
placed on owners.151 The reason for this is that owners are then readily identifiable, which
ensures that the land remains marketable.152
146
for the Twenty-First Century: A Consultative Document Number 254 (September 1998) para 10.6. See also
Irving DK Should the Law Recognise the Acquisition of Title by Adverse Possession? (1985) 2 Australian
Property Law Journal 112-119 114; Ballantine HW Title by Adverse Possession (1919) 32 Harvard Law
Review 135-159 135. For an argument to the contrary, see Clarke A Use, Time, and Entitlement (2004) 57
Current Legal Problems 239-275 250-251.
147
Registration Act 2002 (2007) 27 Legal Studies 236-260 248-253, which is written against the background of
urban squatting.
148
Registration Act 2002 (2007) 27 Legal Studies 236-260 248-523. At 249 these authors are of the opinion that
the Law Commissions suggested alterations to adverse possession were flawed by two considerations, namely
(i) that adverse possession is presumably incompatible with land registration and (ii) that squatters act
immorally by adversely possessing land belonging to other people.
149
for the Twenty-First Century: A Consultative Document Number 254 (September 1998) para 10.6. See also
Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2434-
2435; Irving DK Should the Law Recognise the Acquisition of Title by Adverse Possession? (1985) 2
Australian Property Law Journal 112-119 114; Ballantine HW Title by Adverse Possession (1919) 32
Harvard Law Review 135-159 135. For an argument to the contrary, see Clarke A Use, Time, and Entitlement
(2004) 57 Current Legal Problems 239-275 250-251.
150
para 10.6 and sources there cited. See also Stake JE The Uneasy Case for Adverse Possession (2001) 89
Georgetown Law Journal 2419-2474 2433; Irving DK Should the Law Recognise the Acquisition of Title by
Adverse Possession? (1985) 2 Australian Property Law Journal 112-119114.
151
See the discussion in section 4.4.4 below.
152
Goymour A The Acquisition of Rights in Property by the Effluxion of Time in Cooke E (ed) Modern
Studies in Property Law 4 (2007) 169-196 192; Epstein RA Past and Future: The Temporal Dimension in the
Law of Property (1986) 64 Washington University Law Quarterly 667-722 678; Merrill TW Property Rules,
Liability Rules, and Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1129-
1131.
168
The third justification Dockray identifies is that adverse possession ensures that a possessor
can feel confident after a certain time that an incident which might have led to a claim
against him is finally closed.153 Dockray supplies two reasons why the law may wish to
encourage such confidence by denying owners to repossess their land, namely
i) to avoid hardship;154 and

ii) to ensure that land does not become sterile and unmarketable.155
The first reason applies to cases where land is unregistered and where the squatter may for
example be an innocent (bona fide) trespasser who initially entered the land as the result of
a reasonable mistake concerning the boundary of the property.156 Hardship also encompasses
the situation where the squatter invested labour such as time or money in improving or
developing the land.157 Consequently, such a squatter will suffer hardship if he incurred
expenses under the mistaken belief of ownership, should the owner suddenly appear and
reclaim the land.158 Thus, as was also seen from Voet and Grotius,159 the problem with
153
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 272, 274-277;
Cholmondeley v Clinton (1820) 2 Jac & W 1 139-140; ACourt v Cross (1825) 3 Bing 329 332-333; Gray K &
Gray SF Elements of Land Law (5th ed 2009) para 9.1.9; Harpum C, Bridge S & Dixon M Megarry and Wade:
The Law of Real Property (7th ed 2008) para 35-001.
154
the Twenty-First Century: A Consultative Document Number 254 (September 1998) paras 10.8, 10.16.1;
Cholmondeley v Clinton (1820) 2 Jac & W 1 139-140; ACourt v Cross (1825) 3 Bing 329 332-333. See also
Property Law Journal 112-119 114.
155
Registration for the Twenty-First Century: A Consultative Document Number 254 (September 1998) paras
10.7, 10.13, 10.43; Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.9; Smith RJ Property Law
(6th ed 2009) 63-64; Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after
the Land Registration Act 2002 (2007) 27 Legal Studies 236-260 237, 240; Dixon MJ Adverse Possession in
Three Jurisdictions 2006 Conveyancer 179-187 184. However, Clarke A Use, Time, and Entitlement (2004)
57 Current Legal Problems 239-275 258-260 fears that land may become unmarketable in situations where the
2002 Act prevents adverse possessors who possessed land for long periods from acquiring title due to the strict
requirements of the Act.
156
14.3; Land Registration for the Twenty-First Century: A Consultative Document Number 254 (September
1998) paras 10.8, 10.16.
157
for the Twenty-First Century: A Consultative Document Number 254 (September 1998) paras 10.8, 10.16;
Cholmondeley v Clinton (1820) 2 Jac & W 1 140. See also Irving DK Should the Law Recognise the
Acquisition of Title by Adverse Possession? (1985) 2 Australian Property Law Journal 112-119 114. This
argument is analogous to Singers reliance interest theory advanced for adverse possession, which is discussed
in section 4.4.3 below. For arguments as to how a squatter can obtain a labour theory claim in property, see
section 4.4.2 below.
158
169
adverse possession does not necessarily reside in cases involving the bona fide possessor. It is
therefore clear that English law does not wish to impede the bona fide possessor from
acquiring ownership under certain justified circumstances either. However, the dilemma
arises when the mala fide possessor acquires land through adverse possession, which some
authors describe as land theft.160
Dockray concedes that adverse possession can prevent hardship on the side of the squatter,
but fears that it may also work great hardship for an owner who loses ownership through
adverse possession.161 As mentioned, adverse possession even operates in cases where the
owner did not know that time was running against him.162 Dockray criticises this state of
affairs because adverse possession makes no attempt to balance the hardship of the owner
against the hardship of the squatter.163 This position is clear from the following obiter dictum
in Cholmondeley v Clinton:164
The individual hardship will, upon the whole, be less, by withholding from one who has slept
upon his right, and never yet possessed it, than to take away from the other what he has long
been allowed to consider as his own, and on the faith of which, the plans in life, habits and
expences of himself and his family may have been ... unalterably formed and established.165
for the Twenty-First Century: A Consultative Document Number 254 (September 1998) paras 10.8, 10.16;
Cholmondeley v Clinton (1820) 2 Jac & W 1 140.
159
See section 4.2.2 above.
160
Registration Act 2002 (2007) 27 Legal Studies 236-260 236-237; Irving DK Should the Law Recognise the
Acquisition of Title by Adverse Possession? (1985) 2 Australian Property Law Journal 112-119 113;
Goodman MJ Adverse Possession of Land Morality and Motive (1970) 33 Modern Law Review 281-288
281; Ballantine HW Title by Adverse Possession (1919) 32 Harvard Law Review 135-159 135. This issue is
addressed in section 4.5 below.
161
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 275. To the same effect is
Property Law Journal 112-119 114.
162
10.6; Powell v McFarlane (1979) 38 P & CR 452 480; Rains v Buxton (1880) 14 Ch D 537 540-541;
Cholmondeley v Clinton (1820) 2 Jac & W 1 139-140; Gray K & Gray SF Elements of Land Law (5th ed 2009)
para 9.1.35; Smith RJ Property Law (6th ed 2009) 64. See also Irving DK Should the Law Recognise the
Acquisition of Title by Adverse Possession? (1985) 2 Australian Property Law Journal 112-119 114.
163
This is clear from Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 275;
Cholmondeley v Clinton (1820) 2 Jac & W 1 140. See also Ballantine HW Title by Adverse Possession (1919)
32 Harvard Law Review 135-159 136. This balancing that Dockray suggests could provide a helpful method for
solving adverse possession disputes if the moral blameworthiness of the parties is allowed to be taken into
account, as implied by Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after
the Land Registration Act 2002 (2007) 27 Legal Studies 236-260 248-253. This possibility is analogous to
Radins personality theory and is addressed in section 4.4.3 below.
164
(1820) 2 Jac & W 1.
165
(1820) 2 Jac & W 1 140. This passage is analogous to Singers reliance interest theory, which is discussed
in section 4.4.3 below.
170
It seems that this justification is built on the assumption that it is always the squatter who
suffers the greater hardship and that the owner should, therefore, not be able to reclaim
possession after the expiration of the limitation period. Dockray questions whether the
balance of hardship normally favours the squatter after 12 years and also whether adverse
possession must necessarily adopt an automatic and imperative form, without the
possibility of judicial discretion to determine which party truly suffers hardship.166 Dockray
also criticises the relatively short limitation period,167 which is even more relevant in
situations where the land is registered and the parties are able to determine the owners
identity through investigating the register.168 As a result, Dockray concludes that hardship
cannot adequately justify adverse possession.169 Yet, if one has regard to the moral and
utilitarian justifications addressed below,170 together with employing adverse possession as a
mechanical entitlement determination rule,171 it is clear that ample grounds exist for retaining
adverse possession in a modern jurisdiction with a negative registration system.
The second reason advanced under this justification is based on economic considerations,
namely that adverse possession encourages the use, maintenance and improvement of
natural resources.172 Adverse possession is seen to be in the public interest because it
rewards the purposeful labourer who makes constructive use of available land.173 The
166
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 275. See also Irving DK
Should the Law Recognise the Acquisition of Title by Adverse Possession? (1985) 2 Australian Property Law
Journal 112-119 113.
167
The period for adverse possession in English law regarding unregistered land, which also applied to
registered land prior to the LRA, is 12 years: See section 3.2.2.1 of chapter three above.
168
Registration for the Twenty-First Century: A Conveyancing Revolution Number 271 (July 2001) para 14.3;
para 10.11.
169
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 276. For an argument to
the contrary, see Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after the
Land Registration Act 2002 (2007) 27 Legal Studies 236-260.
170
See sections 4.4.2-4.4.4 below.
171
Law Review 1122-1154 1137-1145. See further section 4.4.4 below.
172
10.7, 10.13; Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.11; Smith RJ Property Law (6th ed
2009) 63; Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after the Land
Registration Act 2002 (2007) 27 Legal Studies 236-260 237. See also Rose CM Possession as the Origin of
Property (1985) 52 University of Chicago Law Review 73-88 81; Ballantine HW Title by Adverse Possession
(1919) 32 Harvard Law Review 135-159 135. This reason is discussed in greater detail in section 4.4.4 below.
173
10.7, 10.13; Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.11; Smith RJ Property Law (6th ed
171
squatter in the absence of the owner can start to invest in the land and come to regard it as
his own after many years of possession.174 This ground is apparently strengthened if the
squatter occupied the land with the (bona fide) belief that he owned it.175 Nevertheless, this
argument remains valid even if the squatter is aware (mala fide) that he is not the owner,
since possessors will not invest in land if the owner suddenly appears and then simply
reclaims the property.176 For this reason the law wishes to encourage effective land use,
especially if the land would otherwise lie abandoned by the owner.177 Therefore, adverse
possession encourages owners to develop their land, since it is in the public interest to
promote the use of limited resources.178
The second leg of this justification is that adverse possession prevents land from becoming
unmarketable. This can happen in situations where the ownership of land and the reality of
possession are out of kilter, which causes land to become unmarketable if there is no
mechanism available to align long-term possession with ownership or to quiet titles.179 This
situation can occur in cases where
2009) 63; Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after the Land
Registration Act 2002 (2007) 27 Legal Studies 236-260 237. See also Rose CM Possession as the Origin of
Property (1985) 52 University of Chicago Law Review 73-88 81; Irving DK Should the Law Recognise the
Acquisition of Title by Adverse Possession? (1985) 2 Australian Property Law Journal 112-119 115;
Ballantine HW Title by Adverse Possession (1919) 32 Harvard Law Review 135-159 135.
174
10.7; Cholmondeley v Clinton (1820) 2 Jac & W 1 140; Smith RJ Property Law (6th ed 2009) 64;
175
10.7; Cholmondeley v Clinton (1820) 2 Jac & W 1 140; Smith RJ Property Law (6th ed 2009) 64.
176
10.7, 10.13; Smith RJ Property Law (6th ed 2009) 63-64. See also the economic justifications in this regard in
section 4.4.4 below.
177
See also Rose CM Possession as the Origin of Property (1985) 52 University of Chicago Law Review 73-88
81; Ballantine HW Title by Adverse Possession (1919) 32 Harvard Law Review 135-159 135.
178
the Twenty-First Century: A Consultative Document Number 254 (September 1998) para 10.13; Gray K &
Gray SF Elements of Land Law (5th ed 2009) para 9.1.6; Smith RJ Property Law (6th ed 2009) 64-65; Dixon M
The Reform of Property Law and the Land Registration Act 2002: A Risk Assessment 2003 Conveyancer
136-156 151-152. See also Irving DK Should the Law Recognise the Acquisition of Title by Adverse
Possession? (1985) 2 Australian Property Law Journal 112-119 115. See further the utilitarian and economic
justifications advanced in favour of adverse possession in section 4.4.4 below.
179
1998) para 10.7; Smith RJ Property Law (6th ed 2009) 64-65.
172
i) the owner has disappeared and the squatter in the owners absence has been in
possession of the land for a substantial period of time;180 or
ii) there were dealings with registered land off the register, causing uncertainty as to
who truly owns the land.181
Though this ground constitutes a valid justification for adverse possession, Dockray states
that it seems only rarely to have influenced judicial opinion in cases involving adverse
possession.182 Still, the Law Commission views this justification as playing an important role,
even in situations concerning registered land or where the squatter is mala fide, since adverse
possession ensures that land even under these circumstances remains in commerce and is
not rendered sterile.183 The Law Commissions findings in this regard overlap with the
economic grounds advanced for adverse possession below.184 Although even an important
consideration in the context of registered land, Dockray finds that this reason cannot
adequately justify adverse possession, since it is not limited to cases of long and peaceable
possession of neglected property.185
To summarise, Dockray provides the following three reasons to justify adverse possession:
i) it promotes legal certainty by protecting long-term possessors from stale claims

(through quieting titles);
180
para 10.7.1; Smith RJ Property Law (6th ed 2009) 64-65. See also Irving DK Should the Law Recognise the
Acquisition of Title by Adverse Possession? (1985) 2 Australian Property Law Journal 112-119 115-116;
Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2443.
181
para 10.7.2. See also Irving DK Should the Law Recognise the Acquisition of Title by Adverse Possession?
(1985) 2 Australian Property Law Journal 112-119 115-116; Goodman MJ Adverse Possession of Land
Morality and Motive (1970) 33 Modern Law Review 281-288 282-283.
182
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 276. See also Irving DK
Journal 112-119 115.
183
1998) paras 10.7, 10.13, 10.43. To the same effect are Gray K & Gray SF Elements of Land Law (5th ed 2009)
para 9.1.11; Dixon M The Reform of Property Law and the Land Registration Act 2002: A Risk Assessment
2003 Conveyancer 136-156 151; Rose CM Possession as the Origin of Property (1985) 52 University of
Chicago Law Review 73-88 81. This is an important economic justification for adverse possession, see section
4.4.4 below. For criticism on this economic justification, see Irving DK Should the Law Recognise the
Acquisition of Title by Adverse Possession? (1985) 2 Australian Property Law Journal 112-119 115.
184
185
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 277; Smith RJ Property
Law (6th ed 2009) 64.
173
ii) it encourages owners not to sleep on their rights; and
iii) it ensures that a possessor can feel confident that his right cannot be called into
question after a certain period of time has elapsed.
As discussed above, the third justification is premised on two reasons, namely (i) that adverse
possession prevents hardship and (ii) that it encourages effective land use and ensures that
land remains in commerce. Nonetheless, the Law Commission concludes that these three
justifications are unable to justify adverse possession, especially concerning registered land
where the register is conclusive as to the ownership of land.186
Dockray also identifies a fourth justification for adverse possession, namely that it helps to
ascertain ownership in unregistered land.187 In many ways this ground can be equated to the
promotion of legal certainty justification in South African law.188 Although this objective
seems to have slipped from the general legal consciousness,189 Dockray argues that it
constitutes one of the main justifications for adverse possession by making the investigation
of unregistered title both safer and cheaper.190 The Law Commission took cognisance of
Dockrays argument and it stated that [t]his fourth reason is undoubtedly the strongest
186
the Twenty-First Century: A Conveyancing Revolution Number 271 (July 2001) paras 14.2-14.3, 14.54; Land
10.11; Smith RJ Property Law (6th ed 2009) 64.
187
the Twenty-First Century: A Conveyancing Revolution Number 271 (July 2001) paras 2.73, 14.2, 14.54; Land
10.9-10.10; Gray K & Gray SF Elements of Land Law (5th ed 2009) paras 9.1.9-9.1.10; Smith RJ Property Law
(6th ed 2009) 64-65; Harpum C, Bridge S & Dixon M Megarry and Wade: The Law of Real Property (7th ed
2008) para 35-001; Nield S Adverse Possession and Estoppel 2004 Conveyancer 123-136 128. See also
Caterina R Some Comparative Remarks on JA Pye (Oxford) v. The United Kingdom (2007) 15 European
Review of Private Law 273-279 275; Fox D Relativity of Title at Law and in Equity (2006) 65 Cambridge
Law Journal 330-365 338; Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law
Journal 2419-2474 2441-2442; Irving DK Should the Law Recognise the Acquisition of Title by Adverse
Possession? (1985) 2 Australian Property Law Journal 112-119 115; Goodman MJ Adverse Possession of
Land Morality and Motive (1970) 33 Modern Law Review 281-288 282-283, 288; Ballantine HW Title by
Adverse Possession (1919) 32 Harvard Law Review 135-159 135, 143-144.
188
189
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 277.
190
14.2, 14.54; Land Registration for the Twenty-First Century: A Consultative Document Number 254
(September 1998) paras 10.9-10.10; Gray K & Gray SF Elements of Land Law (5th ed 2009) paras 9.1.9, 9.1.14;
Smith RJ Property Law (6th ed 2009) 64-65; Harpum C, Bridge S & Dixon M Megarry and Wade: The Law of
Real Property (7th ed 2008) para 35-001. See also Caterina R Some Comparative Remarks on JA Pye (Oxford)
v. The United Kingdom (2007) 15 European Review of Private Law 273-279 275; Merrill TW & Smith HE
The Property/Contract Interface (2001) 101 Columbia Law Review 773-852 803; Irving DK Should the Law
Recognise the Acquisition of Title by Adverse Possession? (1985) 2 Australian Property Law Journal 112-119
115; Goodman MJ Adverse Possession of Land Morality and Motive (1970) 33 Modern Law Review 281-
288 282-283.
174
justification for adverse possession.191 Two reasons are advanced as to why adverse
possession facilitates conveyancing in the case of unregistered land, namely that
i) it diminishes litigation;192 and

ii) it saves expenses on the alienation of land and cheapens the investigation of title.193
Dockray expands on these two reasons and emphasises that this justification indeed qualifies
as the fourth and main ground for justifying adverse possession.194 The Law Commission
accepted it, especially in the context of the second reason Dockray provides.195 Nonetheless,
the Law Commission established that this justification is only relevant regarding unregistered
land, since title to unregistered land is relative and, thus, depends on possession.196 The Law
Commission reasoned that this justification does not take into account the significance of
registration of title.197 It argued that any uncertainty pertaining to the status of title is removed
191
paras 2.73, 14.54; Land Registration for the Twenty-First Century: A Consultative Document Number 254
(September 1998) para 10.10. See also Irving DK Should the Law Recognise the Acquisition of Title by
Adverse Possession? (1985) 2 Australian Property Law Journal 112-119 115; Ballantine HW Title by
Adverse Possession (1919) 32 Harvard Law Review 135-159 135, 143-144.
192
Dockray M Why do we Need Adverse Possession? 1985 Conveyancer 272-284 278-279; Cholmondeley v
Clinton (1820) 2 Jac & W 1 140.
193
para 10.9; Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.10; Smith RJ Property Law (6th ed
2009) 64-65. See also Fox D Relativity of Title at Law and in Equity (2006) 65 Cambridge Law Journal 330-
365 338; Irving DK Should the Law Recognise the Acquisition of Title by Adverse Possession? (1985) 2
Australian Property Law Journal 112-119 115.
194
1998) paras 10.9-10.10.
195
paras 2.73, 14.2; Land Registration for the Twenty-First Century: A Consultative Document Number 254
(September 1998) para 10.9.
196
paras 2.73, 14.2-14.3, 14.54; Land Registration for the Twenty-First Century: A Consultative Document
Number 254 (September 1998) paras 10.9-10.10; Gray K & Gray SF Elements of Land Law (5th ed 2009) paras
9.1.10, 9.1.12, 9.1.14; Smith RJ Property Law (6th ed 2009) 65; Harpum C, Bridge S & Dixon M Megarry and
Wade: The Law of Real Property (7th ed 2008) para 35-001; Nield S Adverse Possession and Estoppel 2004
Conveyancer 123-136 128. See also Caterina R Some Comparative Remarks on JA Pye (Oxford) v. The United
Kingdom (2007) 15 European Review of Private Law 273-279 274; Stake JE The Uneasy Case for Adverse
Possession (2001) 89 Georgetown Law Journal 2419-2474 2441-2442; Irving DK Should the Law Recognise
the Acquisition of Title by Adverse Possession? (1985) 2 Australian Property Law Journal 112-119 115;
282-283, 288; Ballantine HW Title by Adverse Possession (1919) 32 Harvard Law Review 135-159 137, 143-
144.
197
paras 2.70, 14.3, 14.54; Land Registration for the Twenty-First Century: A Consultative Document Number
254 (September 1998) paras 10.9-10.10; Gray K & Gray SF Elements of Land Law (5th ed 2009) paras 9.1.10,
9.1.14; Smith RJ Property Law (6th ed 2009) 65. See also Caterina R Some Comparative Remarks on JA Pye
175
once it is registered and the register provides conclusive proof of ownership of land.198 To
allow adverse possession in such a framework would be inconsistent with the principle that
the register is conclusive concerning the ownership of land.199 In other words, possession
forms the basis of title when land is unregistered, whereas the register performs this function
in cases involving registered land.200 Consequently, registration of title under the LRA in
English law today fulfils the same role as the Grundbuch in German law, where the register
also provides conclusive proof of the ownership of land.201 This means that the English
registration system like the German Grundbuch is now also positive in nature. It follows
that adverse possession fulfils a greater role in a negative registration system where the
correctness of the register is not guaranteed.
Through this evaluation of the traditional justifications for adverse possession, the operation
of unqualified adverse possession regarding registered land suddenly seemed to some to
endorse a form of land theft.202 The disappearance of the conveyancing justification led
(Oxford) v. The United Kingdom (2007) 15 European Review of Private Law 273-279 274; Irving DK Should
112-119 115; Ballantine HW Title by Adverse Possession (1919) 32 Harvard Law Review 135-159 143-144.
198
paras 2.73, 14.3, 14.6, 14.10, 14.54; Land Registration for the Twenty-First Century: A Consultative Document
Number 254 (September 1998) paras 10.10-10.11; JA Pye (Oxford) Ltd and Another v Graham and Another
[2000] Ch 676 710; Gray K & Gray SF Elements of Land Law (5th ed 2009) paras 9.1.10, 9.1.14; Smith RJ
Property Law (6th ed 2009) 65; Harpum C, Bridge S & Dixon M Megarry and Wade: The Law of Real Property
(7th ed 2008) paras 35-001, 35-071; Dixon M The Reform of Property Law and the Land Registration Act
2002: A Risk Assessment 2003 Conveyancer 136-156 137. See also Goymour A The Acquisition of Rights in
Property by the Effluxion of Time in Cooke E (ed) Modern Studies in Property Law 4 (2007) 169-196 193;
2442; Ballantine HW Title by Adverse Possession (1919) 32 Harvard Law Review 135-159 143-144.
199
paras 2.73, 14.2-14.6, 14.54; Land Registration for the Twenty-First Century: A Consultative Document
Number 254 (September 1998) paras 10.3, 10.10-10.11; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 426
per Lord Bingham; JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676 709; Smith RJ
Property Law (6th ed 2009) 65. See also Irving DK Should the Law Recognise the Acquisition of Title by
Adverse Possession? (1985) 2 Australian Property Law Journal 112-119 115-116; Ballantine HW Title by
Adverse Possession (1919) 32 Harvard Law Review 135-159 143-144. For an argument to the contrary, see
Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after the Land Registration
Act 2002 (2007) 27 Legal Studies 236-260.
200
See Fox D Relativity of Title at Law and in Equity (2006) 65 Cambridge Law Journal 330-365 for a
discussion on the doctrine of relativity of title.
201
The position in German law is discussed in section 3.5 of chapter three above.
202
paras 10.11, 10.44; Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.15; Cobb N & Fox L
Living Outside the System? The (Im)morality of Urban Squatting after the Land Registration Act 2002 (2007)
27 Legal Studies 236-260 236-237; Dixon M The Reform of Property Law and the Land Registration Act
2002: A Risk Assessment 2003 Conveyancer 136-156 151. See also Rose CM Property and Expropriation:
Themes and Variations in American Law (2000) 1 Utah Law Review 1-38 9; Irving DK Should the Law
Recognise the Acquisition of Title by Adverse Possession? (1985) 2 Australian Property Law Journal 112-
119 113; Goodman MJ Adverse Possession of Land Morality and Motive (1970) 33 Modern Law Review
281-288 281. Irving is of the opinion at 113 that a limitation period of 12 years minimises the possibility of
176
the Law Commission to conclude that it can no longer be justified to have adverse possession
in relation to registered land.203 Therefore, the Law Commission found that the doctrine of
adverse possession runs counter to the fundamental concept of indefeasibility of title that is
a feature of registered title.204 Only in a few instances where the register is not conclusive
as is the case in relation to boundaries would the conveyancing justification still hold
water.205 The Law Commission decided that adverse possession concerning registered land
should no longer extinguish ownership, since in only a limited number of situations will the
conveyancing justification regarding registered land be the same as it is in relation to
unregistered land.206 Gray and Gray capture the effects of this alteration to English law as
follows:
With the drive towards comprehensive registration of title there has emerged a new
conceptualism of ownership or dominium. The common law principle of relativity of title [and
by implication also adverse possession] now operates only marginally within the statutory
scheme of registered land.207 (Original emphasis.)
Yet, some authors state that the position is not this simple, claiming that there still exist valid
reasons for having adverse possession in relation to registered land that were not taken into
land theft. To the contrary of Irving is Neuberger J in JA Pye (Oxford) Ltd and Another v Graham and
Another [2000] Ch 676 709-710.
203
(September 1998) paras 10.5-10.19, 10.65-10.69, 10.100-10.101; Gray K & Gray SF Elements of Land Law (5th
ed 2009) para 9.1.16; Smith RJ Property Law (6th ed 2009) 65; Dixon M The Reform of Property Law and the
Land Registration Act 2002: A Risk Assessment 2003 Conveyancer 136-156 150-151. See also Irving DK
Journal 112-119.
204
1998) paras 1.14, 10.11; Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.16. See also Fox D
Relativity of Title at Law and in Equity (2006) 65 Cambridge Law Journal 330-365 335-336. For an
argument to the contrary, see Clarke A Use, Time, and Entitlement (2004) 57 Current Legal Problems 239-
275 260-263.
205
paras 2.72, 14.3, 14.7, 14.44; Dixon M The Reform of Property Law and the Land Registration Act 2002: A
Risk Assessment 2003 Conveyancer 136-156 151. See also Irving DK Should the Law Recognise the
Acquisition of Title by Adverse Possession? (1985) 2 Australian Property Law Journal 112-119 115-116;
287.
206
(September 1998) paras 10.5-10.19, 10.49; Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.20;
Dixon M The Reform of Property Law and the Land Registration Act 2002: A Risk Assessment 2003
Conveyancer 136-156 150-151. See also Irving DK Should the Law Recognise the Acquisition of Title by
Adverse Possession? (1985) 2 Australian Property Law Journal 112-119 115-116.
207
Gray K & Gray SF Elements of Land Law (5th ed 2009) para 9.1.20. See also Cobb N & Fox L Living
Outside the System? The (Im)morality of Urban Squatting after the Land Registration Act 2002 (2007) 27
Legal Studies 236-260 240-241. For an argument to the contrary, see Clarke A Use, Time, and Entitlement
177
consideration by the Law Commission.208 Nonetheless, the LRA now severely restricts
adverse possession concerning registered land. As appears from the discussion of the LRA in
the previous chapter,209 the enactment of this Act did not so much alter the substantive
requirements for adverse possession as that it provides compelling procedural safeguards for
registered owners by putting mechanisms in place that protect owners of registered land from
losing their land through the limitation effect of adverse possession.210 Lord Hope describes
these amendments by stating that a much more rigorous regime has now been enacted in ...
the Land Registration Act 2002 ... [which makes] it much harder for a squatter who is in
possession of registered land to obtain title to it against the wishes of the proprietor.211 The
LRA expressly alters the relevant provisions of the Limitation Act 1980 by providing that no
limitation period can run against any person ... in relation to an estate in land ... the title to
which is registered.212
These developments in England were followed by an extensive discussion surrounding the

compatibility of adverse possession with Article 1 of Protocol No 1 (Article 1) to the
European Convention of Human Rights and Fundamental Freedoms 1950 (the Convention)
at the European Court of Human Rights in Strasbourg. This debate pertained to adverse
possession as it operated prior to the enactment of the LRA, when the old rules of adverse
possession still applied to both registered and unregistered land. Although this issue was
settled in JA Pye (Oxford) Ltd v United Kingdom,213 where the Grand Chamber held pre-LRA
adverse possession law to be compatible with Article 1 of the First Protocol, I return to this
208
Registration Act 2002 (2007) 27 Legal Studies 236-260 236-240; Dixon MJ Adverse Possession in Three
Jurisdictions 2006 Conveyancer 179-187 179; Clarke A Use, Time, and Entitlement (2004) 57 Current Legal
Problems 239-275 245-263. See also Dixon M Adverse Possession and Human Rights 2005 Conveyancer
345-351 351, where he argues that the alterations made by the 2002 Act to adverse possession are an
unnecessary and economically unjustified bolt on to the reform of registered land. In this regard, see further
Conveyancer 136-156 151-152. Cobb and Fox criticise the Law Commission at 239-240 for not taking the
labour theory, Radins personality theory and utilitarianism into account in their reasoning as to the curtailment
of adverse possession regarding registered land. According to these authors at 239, the reforms introduced by
the Law Commission require more robust justification. These three theories together with their impact on
the justification of adverse possession are discussed in section 4.4 below.
209
See section 3.2.4 of chapter three above.
210
1998) para 10.49.
211
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 426 per Lord Bingham and also per Lord Hope at 446-447.
212
Section 96(1) of the Land Registration Act 2002, disapplying section 15 of the Limitation Act 1980. See also
213
(2007) 46 EHRR 1083 (GC).
178
issue in the next chapter. Chapter five specifically focuses on whether prescription is
justifiable in the constitutional setting of South Africa.
4.3.3 Conclusion the death of traditional adverse possession in English law

In light of the new regime introduced by the 2002 Act, it may not be too bold to state that
adverse possession in its traditional sense is dead, as it is no longer possible in English law to
acquire registered land through adverse possession alone. This is because the LRA now
prevents the extinguishment of registered title through the mere passage of time. The findings
of the Law Commission that the justifications for adverse possession involving unregistered
land do not extend to registered land affected this departure from the traditional position.
Two of the main points of criticism in this context are that it cannot be said that adverse
possession promotes legal certainty or that it encourages owners not to sleep on their rights,
since registered landowners can now be identified through investigating the register. Yet, I
argue that this criticism only applies to legal systems where the register provides conclusive
proof of ownership, such as German law.214
These developments necessitate a re-evaluation of the justifications advanced for prescription

in South African law. The reason for this re-evaluation is because many of the reasons
provided for justifying adverse possession in English law are the same as those found in
South African law, most notably the fact that both adverse possession and prescription
promote legal certainty. Therefore, it has to be determined whether Dockrays criticism
against these justifications also applies to the justifications for prescription in South African
law. This question is addressed in the next section, which focuses on three liberal property
theories that provide reasons for retaining adverse possession or prescription in a legal
system.
4.4 Three liberal theories for justifying acquisitive prescription

4.4.1 Background
214
German law is discussed in section 3.5 of chapter three above.
179
This section analyses the justifications for adverse possession or prescription215 against the
background of three liberal property theories, namely the labour theory of Locke, the
personality theory, as developed by Radin, together with utilitarianism and law and
economics theory. The reason I chose these three theories is because they cover the
justifications provided for prescription in South African law. Attention is also paid to
situations involving the mala fide possessor, as these cases are the most difficult to justify.216
This is due to the fact that prescription especially in cases involving mala fide possessors
prima facie seems to undermine the security and exclusivity of ownership.217 In United States
(US) law these possessors have been described as acquisitive [property] outlaws218 to
illustrate that they are consciously (ab)using the law of adverse possession to steal property
from owners.219 Van der Walt emphasises the problem with bad faith adverse possession:
Considering the social importance attached to the sanctity and security of property ownership
in the rights paradigm, allowing bad faith unlawful possessors to acquire ownership through
acquisitive possession represents a significant qualification of the paradigm.220
Since mala fide possessors pose a threat to the security of ownership, it is understandable
why judges and commentators are unwilling to award ownership to such persons simply
because they satisfied the requirements for adverse possession.221 Nonetheless, arguments
215
I refer to adverse possession and prescription interchangeably in this section, since the jurisprudential
discussion pertains to both the common law and civil law notions of this legal institution.
216
Sagaert V De Verkrijgende Verjaring van Onroerende Goederen Herbezocht. Een Aanzet tot het Debat over
het Verjaringsrecht (2007) 39 Rechtskundig Weekblad 1582-1597 1585, 1594; Stake JE The Uneasy Case for
Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2454-2455; Miceli TJ & Sirmans CF An
Economic Theory of Adverse Possession (1995) 15 International Review of Law and Economics 161-173 161-
162; Sprankling JG An Environmental Critique of Adverse Possession (1994) 79 Cornell Law Review 816-
884 881-884; Netter JM, Hersch PL & Manson WD An Economic Analysis of Adverse Possession Statutes
(1986) 6 International Review of Law and Economics 217-227 217, 219; Merrill TW Property Rules, Liability
Rules, and Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1135. The
anomaly of the bad faith possessor is discussed in greater detail in section 4.5 below.
217
Van der Walt AJ Property in the Margins (2009) 173. See also Cobb N & Fox L Living Outside the
System? The (Im)morality of Urban Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies
236-260 238; Merrill TW Property Rules, Liability Rules, and Adverse Possession (1985) 79 Northwestern
218
This term was coined by Pealver EM & Katyal SK Property Outlaws (2007) 155 University of
Pennsylvania Law Review 1095-1186.
219
1186 1105-1113; Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after the
Land Registration Act 2002 (2007) 27 Legal Studies 236-260 236-237; Goodman MJ Adverse Possession of
Land Morality and Motive (1970) 33 Modern Law Review 281-288 281; Ballantine HW Title by Adverse
Possession (1919) 32 Harvard Law Review 135-159 135.
220
Van der Walt AJ Property in the Margins (2009) 173. See also Pealver EM & Katyal SK Property
Outlaws (2007) 155 University of Pennsylvania Law Review 1095-1186 1097.
221
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 426 per Lord Bingham; JA Pye (Oxford) Ltd and Another v
Graham and Another [2000] Ch 676 709-710; Van der Walt AJ Property in the Margins (2009) 173. See also
the discussion of this issue in US law in Helmholz RH More on Subjective Intent: A Response to Professor
Cunningham (1986) 64 Washington University Law Quarterly 65-106; Helmholz RH Adverse Possession and
180
have been voiced in support of prescription, even in the context of bad faith possessors.222
The issue of bad faith prescription is addressed in section 4.5 below.
It was seen above that adverse possession law in England was recently reformed with the
enactment of the LRA, which prevents the extinguishment of ownership of registered land
through the mere passage of time.223 Yet, some authors criticise the Law Commission for
failing to incorporate certain moral and economic reasons into its arguments when it decided
to abolish adverse possession.224 They argue that the position adopted by the Law
Commission oversimplifies matters because it simply distinguishes between good faith and
bad faith squatters, the former being morally acceptable whereas the latter being labelled as
immoral ought to be prevented from stealing land from blameless owners.225 It seems
as if the Law Commission, without much in-depth reasoning, merely accepted that
registration is right and land theft wrong,226 without providing sufficient reasons as to
why it reached such a conclusion. Dixon said the following when commenting on the reforms
suggested by the Law Commission:
[M]odern expositions of the law on adverse possession appear to have favoured the rights of
possessors over the rights of paper owners and the existence of an off-register mechanism for
destroying titles seems to make a mockery of the state guarantee of title. On the other hand, the
social and economic justifications for principles of adverse possession have been well
Subjective Intent (1984) 61 Washington University Law Quarterly 331-358. This point is discussed in greater
detail in section 4.5 below.
222
1186; Caterina R Some Comparative Remarks on JA Pye (Oxford) v. The United Kingdom (2007) 15
European Review of Private Law 273-279; Cobb N & Fox L Living Outside the System? The (Im)morality of
Urban Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260; Fennell LA Efficient
Trespass: The Case for Bad Faith Adverse Possession (2006) 100 Northwestern University Law Review 1037-
1096; Dixon M Adverse Possession and Human Rights 2005 Conveyancer 345-351; Clarke A Use, Time,
and Entitlement (2004) 57 Current Legal Problems 239-275; Goodman MJ Adverse Possession of Land
Morality and Motive (1970) 33 Modern Law Review 281-288.
223
224
See especially Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after the
Land Registration Act 2002 (2007) 27 Legal Studies 236-260 248-253; Clarke A Use, Time, and Entitlement
(2004) 57 Current Legal Problems 239-275 272-275. See also Dixon M Adverse Possession and Human
Rights 2005 Conveyancer 345-351 351; Auchmuty R Not Just a Good Childrens Story: A Tribute to Adverse
Possession 2004 Conveyancer 293-307 306; Dixon M The Reform of Property Law and the Land Registration
Act 2002: A Risk Assessment 2003 Conveyancer 136-156 151-152.
225
Registration Act 2002 (2007) 27 Legal Studies 236-260 248-253; Clarke A Use, Time, and Entitlement
(2004) 57 Current Legal Problems 239-275 272-275. See also Pealver EM & Katyal SK Property Outlaws
(2007) 155 University of Pennsylvania Law Review 1095-1186 1097-1098; Fennell LA Efficient Trespass: The
Case for Bad Faith Adverse Possession (2006) 100 Northwestern University Law Review 1037-1096 1037-
1040; Auchmuty R Not Just a Good Childrens Story: A Tribute to Adverse Possession 2004 Conveyancer
293-307 306.
226
Auchmuty R Not Just a Good Childrens Story: A Tribute to Adverse Possession 2004 Conveyancer 293-
307 306. This article provides an interesting take on the morality of adverse possession.
181
documented and instead of land theft, adverse possession can be seen as encouraging
productive land use. Again, there is nothing inherently contradictory in having principles of
adverse possession operate in registered land, at least if those principles are seen positively as
a method of transferring title from one person to another instead of a method of unfairly
snatching it from them.227 (Emphasis added.)
The Law Commissions failure to incorporate these moral and economic grounds into its
reports necessitates an investigation of these factors. This is achieved through employing the
three liberal property theories mentioned to emphasise the fallacy in the reasoning of the Law
Commission concerning the abolition of traditional adverse possession.
4.4.2 The labour theory

According to Lockes labour theory, God gave the world to mankind in common for its
preservation.228 It is from this commons that man who has property in his own person is
able to appropriate property through the labour of his body, and the work of his hands.229
Property is awarded to those who mix labour with it, namely the industrious and rational,
as opposed to those who do not, whose non-laborious acts Locke describes as the fancy or
covetousness of the quarrelsom[e] and contentious.230 Locke rejects the idea that prior
consent is required from the rest of mankind to acquire ownership in property.231
Consequently, a person acquires ownership over a thing by taking it out of the commons and
227
Conveyancer 136-156 151-152 (footnotes omitted).
228
Locke J Two Treatises of Government (1690, Laslet P ed 1963) 25. See also Radin MJ Property and
Personhood (1982) 34 Stanford Law Review 957-1015 965-966, who relies on Locke to help justify her
personality theory.
229
Locke J Two Treatises of Government (1690, Laslet P ed 1963) 26-28, 44. Locke implies that every
person literally owns his limbs and, therefore, also owns the products of those limbs. See also Radin MJ
Property and Personhood (1982) 34 Stanford Law Review 957-1015 965-966 and Epstein RA Possession as
the Root of Title (1979) 13 Georgia Law Review 1221-1243 1227, both of whom agree with this interpretation.
For criticism on the assumption that one owns ones limbs and the products thereof, see Rose CM Possession
as the Origin of Property (1985) 52 University of Chicago Law Review 73-88 73-74. Nozick R Anarchy, State,
and Utopia (1974) especially criticises Lockes assumption that a person acquires a claim to that which he
employs labour with his famous tomato juice analogy. In this sense Nozick at 174-175 asks the following:
[W]hy isnt mixing what I own with what I dont own a way of losing what I own rather than a way of gaining
what I dont? If I own a can of tomato juice and spill it in the sea so that its molecules ... mingle evenly
throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice? It seems
that Lockes theory is not able to adequately answer this question. Nonetheless, there is something to be said for
a labour theory claim when a person invests labour into land by occupying and working it.
230
Locke J Two Treatises of Government (1690, Laslet P ed 1963) 34. See also Cobb N & Fox L Living
Legal Studies 236-260 249; Rose CM Possession as the Origin of Property (1985) 52 University of Chicago
Law Review 73-88 79. Rose makes an interesting connection between the labour theory and the common law
theory of first possession, which she uses to justify adverse possession. For another take on the role of the rule
of first possession, see Epstein RA Possession as the Root of Title (1979) 13 Georgia Law Review 1221-1243.
231
Locke J Two Treatises of Government (1690, Laslet P ed 1963) 28. See also Rose CM Possession as the
Origin of Property (1985) 52 University of Chicago Law Review 73-88 74 and the sources cited there.
182
through mixing his labour with it.232 Since labour belongs to the person performing it, once
labour is mixed with a thing it becomes the property of the labourer and no one else is then
able to obtain a right in it.233 Lockes theory concerns situations of first acquisition of
ownership, which means that it will be of no use to mix labour with the property of another,
as that property has already been appropriated from the commons and can thus not be
acquired by mixing labour with it ex post.234 It follows that one of the characteristics of the
Lockean theory is that it prohibits non-contractual redistribution of ownership.235 This poses
a problem for acquiring property through adverse possession, as the labour theory seems to
be inconsistent with such a method of acquisition of ownership. 236 Nonetheless, this problem
can be overcome by treating the owners neglect of his land as a form of quasi-
abandonment,237 which diminishes the owners claim towards the property.238 In this context
Cobb and Fox think that merit is to be found in a possible labour theory claim in cases
involving urban squatters who occupy empty property and invest time and energy to improve
it.239 Still, owners sometimes let their properties lie vacant because of future development
plans or because the owner wishes to keep it as an investment or to sell it at a later stage.
Although non-use constitutes one of the entitlements of ownership (the ius abutendi), it is
232
Locke J Two Treatises of Government (1690, Laslet P ed 1963) 27-28.
233
Locke J Two Treatises of Government (1690, Laslet P ed 1963) 27.
234
235
Radin MJ Time, Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 744.
236
Registration Act 2002 (2007) 27 Legal Studies 236-260 249; Clarke A Use, Time, and Entitlement (2004) 57
Current Legal Problems 239-275 245-246; Epstein RA Possession as the Root of Title (1979) 13 Georgia
Law Review 1221-1243 1226-1228. According to Radin MJ Property and Personhood (1982) 34 Stanford Law
Review 957-1015 973-794 and Radin MJ Time, Possession, and Alienation (1986) 64 Washington University
Law Quarterly 739-758 739, initial labour is sufficient to acquire ownership under the labour theory, which
illustrates that one does not have to constantly invest labour in the thing to maintain ownership. This is where
the problem arises in trying to justify prescription under the labour theory, since the initial labour of the owner
seems to cause his ownership to last forever. To the contrary is the Hegelian approach of acquiring property,
since Hegel believes that ownership is lost when a person withdraws his will from an object and abandons
possession. This latter issue is discussed in section 4.4.3 below.
237
This term is derived from Cobb N & Fox L Living Outside the System? The (Im)morality of Urban
Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260.
238
Registration Act 2002 (2007) 27 Legal Studies 236-260 249-250. Rose CM Possession as the Origin of
Property (1985) 52 University of Chicago Law Review 73-88 79 implies that the owners neglect of land can
allow a squatter to invest labour in the land, which justifies the transfer of ownership to said squatter through
adverse possession. She furthers her argument by stating that the purpose of adverse possession is to require
the owner to assert her right publicly. To the same effect is Green K Citizens and Squatters: Under the
Surfaces of Land Law in Bright S & Dewar JK (eds) Land Law: Themes and Perspectives (1998) 229-256 241-
243. Furthermore, Radin MJ Time, Possession, and Alienation (1986) 64 Washington University Law
Quarterly 739-758 750 expresses her sympathy towards the possibility of using the labour theory to justify
acquisition of ownership through adverse possession.
239
Registration Act 2002 (2007) 27 Legal Studies 236-260 250. See also Clarke A Use, Time, and Entitlement
183
more difficult to justify the existence of such an entitlement when ones property is possessed
by others for long periods of time, especially in societies characterised by housing shortage
problems such as South Africa.240 However, it is worth emphasising that prescription does
not limit an owners right to neglect his property, since owners are entitled to let their land
remain unused even for a 100 years if they so desire. Ownership can only be lost through
prescription if the owner through exercising the ius abutendi does not assert his
ownership by allowing a possessor to possess the land for the duration of the prescription
period. In this regard Rose states that one of the purposes of adverse possession is to require
the owner to assert her right publicly.241 Consequently, an owner does not lose property
through mere non-use alone but because another person has taken possession of it in the
owners absence, which possessor is then able to acquire the property through prescription.
The quasi-abandonment argument of Cobb and Fox is strengthened by the fact that Locke
qualifies his theory by stating that it will only be a valid method for acquiring property at
least where there is enough, and is good left in common for others.242 This implies that the
labour theory only suffices as long as there remain enough unowned things in the commons
for other people to appropriate. Such an approach can also be used to justify urban squatters
acquiring ownership over abandoned houses or premises. Indeed, Locke wrote during an era
when there [was] land enough in the world to suffice double the inhabitants,243 which now
is no longer the case. This supports the argument that prescription should be allowed in the
Lockean framework. Thus, the abovementioned qualification can warrant the use of the
labour theory to justify the acquisition of things through law (prescription) where property is
already owned (but not used by the owner) and possessed by another person in situations
where there no longer remains enough land in the commons for people to appropriate.244
240
ed 2007) 405-665 510 and cases cited: See section 4.2.3 above. See also Van der Walt AJ Property in the
Margins (2009) 176; Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after
the Land Registration Act 2002 (2007) 27 Legal Studies 236-260. For an argument in this regard, see Merrill
TW Property Rules, Liability Rules, and Adverse Possession (1985) 79 Northwestern University Law Review
1122-1154 1130-1131; Rose CM Possession as the Origin of Property (1985) 52 University of Chicago Law
Review 73-88 81-82. This issue is addressed in section 4.5 below.
241
Rose CM Possession as the Origin of Property (1985) 52 University of Chicago Law Review 73-88 79.
242
Locke J Two Treatises of Government (1690, Laslet P ed 1963) 27, 33. See also Epstein RA Possession
as the Root of Title (1979) 13 Georgia Law Review 1221-1243 1228 in this regard.
243
244
To the same effect is Green K Citizens and Squatters: Under the Surfaces of Land Law in Bright S &
Dewar JK (eds) Land Law: Themes and Perspectives (1998) 229-256 243.
184
However, prescription is not only confined to cases involving urban squatters and thus one
also has to consider whether the labour theory can be used to justify prescription when
squatters invest time and labour in rural land. In 31, Locke states that no person is free to
appropriate from the commons as much as he desires, since a person may not take more from
the commons than he is able to enjoy.245 Should a person appropriate more than his share or
what he is able to use, such things will spoil, causing it to belong to others.246 The
justification for this approach is that [n]othing was made by God for man to spoil or
destroy.247 Although this particular paragraph248 only pertains to acorns or other fruit of the
Earth, which are by their nature perishable things, through analogy one can read this
qualification as also applying to land that is not used by owners, who thereby spoil it.249
Such an argument is justified through the use of the word nothing in this context,250 which
is indicative of all kinds of property, including land. Although Locke does not directly state
what happens to things that spoil, other than it will belong to others, it seems as if these
things remain in or at least revert to the commons from where other persons are then able to
appropriate them. In 32, Locke mentions that land is acquired in the same way as fruits of
the Earth described in 31, which implies that land is subject to the same qualification
mentioned in 31. In the context of land it is stated that [a]s much land as a man tills,
plants, improves, cultivates, and can use the product of, so much is his property.251 The latter
paragraph entails that an owner who does not use his property is spoiling it, which opens
the door for allowing prescription in the Lockean framework.252 The spoiling of land by an
owner can be said to have offended against the common Law of Nature, and [such owner is]
245
246
Locke J Two Treatises of Government (1690, Laslet P ed 1963) 31, 46.
247
Locke J Two Treatises of Government (1690, Laslet P ed 1963) 31. See also Green K Citizens and
Squatters: Under the Surfaces of Land Law in Bright S & Dewar JK (eds) Land Law: Themes and Perspectives
(1998) 229-256 241, 243 in this context. Green claims that the theft of the owners property through adverse
possession is justified if the owner is a waster of the natural national resource [which is land]. To the same
effect is Sagaert V De Verkrijgende Verjaring van Onroerende Goederen Herbezocht. Een Aanzet tot het Debat
over het Verjaringsrecht (2007) 39 Rechtskundig Weekblad 1582-1597 1585.
248
249
For a source supporting such an argument, see Green K Citizens and Squatters: Under the Surfaces of Land
Law in Bright S & Dewar JK (eds) Land Law: Themes and Perspectives (1998) 229-256 241, 243.
250
Locke J Two Treatises of Government (1690, Laslet P ed 1963) 31: Nothing was made by God for man to
spoil or destroy.
251
252
Locke J Two Treatises of Government (1690, Laslet P ed 1963) 31-32. For an argument along similar
lines, see Green K Citizens and Squatters: Under the Surfaces of Land Law in Bright S & Dewar JK (eds)
Land Law: Themes and Perspectives (1998) 229-256 241, 243; Sagaert V De Verkrijgende Verjaring van
Onroerende Goederen Herbezocht. Een Aanzet tot het Debat over het Verjaringsrecht (2007) 39 Rechtskundig
Weekblad 1582-1597 1585.
185
liable to be punished; [for] he invaded his neighbours share.253 This logic provides further
accommodation for prescription in the labour theory, especially if one considers that one of
its justifications is to punish the neglectful owner and to reward the industrious and
rational.254 This argument is similar to the justification found in the jurisdictions discussed
above, namely that prescription encourages owners to make use of their property.255 Indeed,
Locke declares that whatever is beyond the enjoyment or use of a person before it spoils may
not be appropriated as property, as it will be more than his share and will then belong to
others.256 Although one may encounter problems with the word spoil in the context of land,
I argue that spoilage entails letting land lie unused or abandoned for long periods of time.257
The following statement advances the possibility of such an interpretation:
But if either the grass of his [e]nclosure rotted on the ground, or the fruit of his planting
perished without gathering, and laying up, this part of the earth, notwithstanding his
[e]nclosure, was still to be looked on as waste, and might be the possession of any other.258
(Emphasis added.)
If the non-use of land by an owner constitutes waste, causing it to be the possession of any
other, it follows that the land then resides in or reverts to the commons, from where it can be
acquired through prescription. The arguments by Cobb and Fox in the context of urban
squatters strengthen the possibility of such an interpretation.259
An interesting element of the labour theory is found in the last paragraph of Lockes chapter
on property. According to 51, a person has a right to all things in which he can invest
253
Locke J Two Treatises of Government (1690, Laslet P ed 1963) 37, read with 38. The latter paragraph
specifically justifies this approach regarding land, see also 46.
254
(1998) 229-256 241, 243; Sagaert V De Verkrijgende Verjaring van Onroerende Goederen Herbezocht. Een
Aanzet tot het Debat over het Verjaringsrecht (2007) 39 Rechtskundig Weekblad 1582-1597 1585. To the same
effect is Dixon M The Reform of Property Law and the Land Registration Act 2002: A Risk Assessment 2003
Conveyancer 136-156 151-152. For the economic considerations favouring this approach, see section 4.4.4
below.
255
This justification, also known as the punishment justification, is a well-known ground for justifying
prescription or adverse possession in Roman-Dutch, South African and English law: See sections 4.2.2, 4.2.3
and 4.3.2 respectively above. Although Dutch and French law regard this ground as being merely ancillary to
the legal certainty argument, they also recognise it: See section 4.2.4 above.
256
(1998) 229-256 241, 243.
257
Locke J Two Treatises of Government (1690, Laslet P ed 1963) 37-38.
258
259
Registration Act 2002 (2007) 27 Legal Studies 236-260. See also Fennell LA Efficient Trespass: The Case for
Bad Faith Adverse Possession (2006) 100 Northwestern University Law Review 1037-1096.
186
labour, causing no temptation to labour for more than such person can make use of. The
result of this is captured as follows:
This left no room for controvers[y] about the title, nor for [e]ncroachment on the rights of
others; what portion a man carved to himself, was easily seen; and it was useless as well as
dishonest to carve himself too much, or take more than he needed.260 (Emphasis added.)
According to this paragraph it seems to be a waste (useless) if owners have too much
property or more than they need. This is analogous to situations where people own more land
than they are able or willing to use or look after, which serves as an additional justification
for allowing prescription in this context.
One cannot ignore the role that time fulfils in theories such as the labour theory, since Epstein
states that [a]ll human interactions, and hence all legal rules, have a temporal dimension.261
Although time plays an important role in the personality theory262 as well as in utilitarian and
law and economics theory,263 it seems that the temporal dimension has no relevance in
Lockes theory.264 The reason why the temporal dimension is irrelevant in the labour theory
is because it only focuses on the moment entitlements are created.265 A person acquires
ownership or entitlements in property the moment he takes something from the commons
and mixes labour with it. According to Epstein, the labour theory entails that entitlements are
created through first possession of a thing, which entitlements are then fixed forever.266
Thus, time is only relevant to Locke the moment property is appropriated from the commons.
It follows that the temporal dimension before and after this defining moment, when
ownership is acquired, is irrelevant for the labour theory. This approach towards time is
problematic for justifying adverse possession, since it is impossible to acquire ownership in
property if the original owners entitlement toward it is forever recognised.267 Nonetheless,
260
261
Epstein RA Past and Future: The Temporal Dimension in the Law of Property (1986) 64 Washington
University Law Quarterly 667-722 667.
262
This theory is discussed in section 4.4.3 below.
263
These theories are discussed in section 4.4.4 below.
264
Radin MJ Time, Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 739-
740; Epstein RA Past and Future: The Temporal Dimension in the Law of Property (1986) 64 Washington
University Law Quarterly 667-722 669-670, 674.
265
Radin MJ Time, Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 739-
University Law Quarterly 667-722 669-670, 674.
266
University Law Quarterly 667-722 669-670, 674; Radin MJ Time, Possession, and Alienation (1986) 64
Washington University Law Quarterly 739-758 739.
267
This problem is pointed out by Radin MJ Time, Possession, and Alienation (1986) 64 Washington
187
one overcomes this problem by employing Epsteins doctrine of relative title, which
recognises the importance of the temporal dimension in the context of competing claims.268
Since time eradicates evidence pertaining to ownership, this doctrine entails that adverse
possession is able to resolve conflicting claims to ownership by awarding title not to the first
possessor (owner), but to the prior possessor (squatter).269 Accordingly, the doctrine of
relative title has the same virtues that the doctrine of first possession [or labour theory] has
with respect to land originally unowned.270 Consequently, it is possible to accommodate
adverse possession in the labour theory if one follows Epsteins proposition by incorporating
a time element into Lockes theory.
Prima facie it seems as if the labour theory is unable to accommodate adverse possession,
since this legal institution entails the acquisition of property that is already owned. However,
the labour theory can justify prescription if an owners neglect or non-use of urban or
rural property is recognised as constituting quasi-abandonment or waste. In this context the
purposeful squatter who makes use of neglected land indeed provides support for including
prescription in this theory. Furthermore, the labour theory is also subject to certain internal
qualifications. For instance, Locke states that the acquisition of ownership through his theory
will only be warranted as long as there remain enough unowned things in the commons for
others to appropriate. Moreover, Locke forbids persons to take more from the commons than
they are able to use and enjoy. These conditions open the possibility to allow prescription in
the Lockean framework. Although the absence of a temporal dimension in the labour theory
is another factor that counts against accommodating prescription, Epsteins doctrine of
relative title can overcome this problem. I predict that these factors, when taken together,
offer enough support for concluding that the labour theory can justify prescription.
The last issue warranting attention is how the labour theory reacts to mala fide adverse
possession. In this sense it seems that the labour theory accommodates both good and bad
faith prescription. The reason for this is because the subjective intent of the purposeful
labourer is irrelevant for Locke; he merely requires a person to mix his labour with an object
268
269
University Law Quarterly 667-722 675. This approach definitely has undertones of law and economics theory:
270
188
to acquire ownership. Consequently, the subjective mindset of a person is unimportant to the
labour theory, since both good and bad faith adverse possessors are able to acquire ownership
in an object through mixing labour with it.
4.4.3 The personality theory

The second liberal theory that can justify prescription is the property and personhood theory
(personality theory) of Radin.271 The following passage captures the essence of this theory:
The premise underlying the personhood perspective is that to achieve proper self-development
to be a person an individual needs some control over resources in the external environment.
The necessary assurances of control take the form of property rights.272 (Original emphasis.)
The personality theory entails that certain objects (property) are bound up with ones
personhood because they become part of the way we constitute ourselves as humans.273
Although these objects differ from person to person, Radin identifies four examples, namely
271
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 957; Radin MJ Time,
Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 745. Other authors are in
favour of this theory, see for instance Pealver EM & Katyal SK Property Outlaws (2007) 155 University
of Pennsylvania Law Review 1095-1186 1131-1132; Cobb N & Fox L Living Outside the System? The
(Im)morality of Urban Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260 250-
251; Goymour A The Acquisition of Rights in Property by the Effluxion of Time in Cooke E (ed) Modern
Studies in Property Law 4 (2007) 169-196 171; Singer JW Introduction to Property (2nd ed 2005) 159-161;
Clarke A Use, Time, and Entitlement (2004) 57 Current Legal Problems 239-275 274; Stake JE The Uneasy
Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2420, 2456; Singer JW
Entitlement The Paradoxes of Property (2000) 45-46; Miceli TJ, Sirmans CF & Turnbull GK Title Assurance
and Incentives for Efficient Land Use (1998) 6 European Journal of Law and Economics 305-323 310-311;
Miceli TJ & Sirmans CF The Economics of Land Transfer and Title Insurance (1995) 10 Journal of Real
Estate Finance and Economics 81-88 83-84; Singer JW The Reliance Interest in Property (1988) 40 Stanford
Law Review 611-751 666-668 footnote 174; Merrill TW (ed) Time, Property Rights, and the Common Law
Round Table Discussion (1986) 64 Washington University Law Quarterly 793-865 814; Merrill TW Property
Rules, Liability Rules, and Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154
1127, 1131-1132; Holmes OW The Path of the Law (1897) 10 Harvard Law Review 457-478 477. This theory
also has an interesting resemblance to Alexanders social-obligation norm: See Alexander GS The Social-
Obligation Norm in American Property Law (2009) 94 Cornell Law Review 745-820. Nonetheless, criticism
has been voiced against this theory, especially by Schnably SJ Property and Pragmatism: A Critique of Radins
Theory of Property and Personhood (1993) 45 Stanford Law Review 347-407. For ease of reference, I refer to
Radins theory as the personality theory.
272
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 957, which is based on
Hegel GWF Outlines of the Philosophy of Right (1821, Houlgate S ed 1952) 22-31 para 41. See also Radin MJ
Reinterpreting Property (1993) chapter 1, where this article is incorporated. Radin formulates her personality
theory by basing her ideas on the Hegelian personality theory.
273
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 959. This approach is
similar to the relationship described by Holmes OW The Path of the Law (1897) 10 Harvard Law Review
457-478 477. Posner RA Economic Analysis of Law (6th ed 2003) 78 footnote 3 supports this approach from an
economic perspective, though only in the context of good faith adverse possessors. The economic aspects of
adverse possession are discussed in section 4.4.4 below.
189
a wedding ring, a portrait, an heirloom and a house.274 The essence of her theory is that
ownership of objects is needed to help constitute healthy self-constitution or human
flourishing.275 The strength of a persons relationship with an object is measured by taking
into account the kind of pain276 he will suffer should the object be lost in some way.277
Consequently, an object is closely bound up with someones personhood if its loss causes
pain that cannot be relieved by replacing that object with its monetary value.278 An example
analogous to one provided by Radin is where a valuable watch was stolen from a
watchmaker. The insurer can simply reimburse the watchmaker, but if the same watch was
stolen from a sentimental owner, simple monetary reimbursement will not provide adequate
satisfaction.279 The reimbursement of the watchmaker by the insurer is viewed as possession
of an object that is replaceable with something of equal worth.280 Such objects are held for
instrumental reasons, examples being money, watches held by a watchmaker and land in the
hands of a developer.281 Radin refers to these two types of property (relationships) as (i)
personal property,282 which involves property that individuals are attached to as persons,
274
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 959. For a discussion of the
applicability of the personality theory in the context of a home, see Fox L Conceptualising Home: Theories,
Law and Policies (2007) 287-303. For how the personality theory can be used to justify adverse possession in
the context of urban squatters, see Cobb N & Fox L Living Outside the System? The (Im)morality of Urban
Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260 250-252.
275
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 968-969; Radin MJ
Reinterpreting Property (1993) 1. See further Radin MJ Reinterpreting Property (1993) 5-6, who thinks that her
argument can be improved by using the term human flourishing instead of healthy self-constitution,
although she admits that not even this new term is entirely free of difficulty.
276
This pain can be equated to what Michelman FI Property, Utility, and Fairness: Comments on the Ethical
Foundations of Just Compensation Law (1967) 80 Harvard Law Review 1165-1258 1214 describes as
demoralization costs, a connection already made by Ellickson RC Adverse Possession and Perpetuities Law:
Two Dents in the Libertarian Model of Property Rights (1986) 64 Washington University Law Quarterly 723-
737 727-728. Ellickson at 727-728 describes demoralisation costs as not only encompassing personal losses, but
also social losses that result when those who have been demoralized become more antisocial in their
behaviour. Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 1003 and Merrill
1122-1154 1129-1130 also refer to this demoralisation aspect in and.
277
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 959. It is not the object
that is personal, but rather the relationship between a person and object, according to Radin MJ Reinterpreting
Property (1993) 14.
278
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 959.
279
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 959; Radin MJ
Reinterpreting Property (1993) 16.
280
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 959-960; Radin MJ
281
282
Radin MJ Reinterpreting Property (1993) 2 is of the opinion that she should rather have used the word
constitutive property and not personal property to refer to this kind of relationship, but for purposes of this
dissertation I use her original term. For an interesting take on the application of personal property from
Radins theory, see Green K Citizens and Squatters: Under the Surfaces of Land Law in Bright S & Dewar JK
(eds) Land Law: Themes and Perspectives (1998) 229-256 241-242.
190
and (ii) fungible property, which entails property that individuals are not bound up with.283
Yet, the fact that persons can become bound up with certain things does not imply that such
property deserves recognition or protection, since there is both a good and bad way of being
bound up with objects.284 In this sense object-fetishism which implies a wrong or
unhealthy way of being bound up with objects will not be recognised as personal property
because such property it is not constitutive of ones personhood.285 The shoe fetishists
relationship with his shoe does not deserve the same recognition or respect as the relationship
between a sentimental watch owner and his watch, since a shoe cannot be constitutive of
someones personhood.286 To ascertain whether a persons relationship with an object is
good or bad (fetishistic), one has to establish whether an objective moral consensus
determines that to be bound up with that category of thing is consistent with personhood or
healthy self-constitution.287 However, refusing to classify fetishist or fungible property as
personal property does not mean that such objects are not regarded as property.288 The shoe
fetishist will still hold or own his shoe as property, albeit with a weaker right than had it
qualified as personal property.289
Radins theory is built on the Hegelian personality theory, since it supports her theory of
property for personhood.290 According to Hegel, a person must translate his freedom into
283
Reinterpreting Property (1993) 2; Radin MJ Time, Possession, and Alienation (1986) 64 Washington
University Law Quarterly 739-758 748 footnote 26. In Reinterpreting Property (1993) 2, Radin acknowledges
that she should rather have referred to these properties namely personal and fungible as property
relationships, hence the placing of the word relationships in brackets in the main text.
284
285
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 961. For a more complete
discussion on the differences between good and bad object-relations, see the same article at 961-970.
286
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 961. In the same article at
961-970, Radin establishes a method for distinguishing between good and bad property relationships.
287
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 969. Radin reassesses her
use of the words objective and consensus in Radin MJ Reinterpreting Property (1993) 4-5 and states that
objectivity can imply a kind of transcendent reality divorced from the activities of human beings, while
consensus has its own baggage relating to groups of individuals entering into a social contract. She also
reconsiders her use of the word health in healthy self-constitution at 5 and mentions that her argument
would be advanced by simply speaking of human flourishing. Schnably SJ Property and Pragmatism: A
Critique of Radins Theory of Property and Personhood (1993) 45 Stanford Law Review 347-407 362-379
critiques Radins use of the word consensus.
288
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 970, 1008; Radin MJ
Reinterpreting Property (1993) 12-14.
289
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 970. This means that even
though the object will be treated as fungible property, ownership prevails. However, it entails that certain claims
regarding the property will be denied had it not been fungible property but personal property. See also Radin MJ
Reinterpreting Property (1993) 12-14.
290
191
an external sphere in order to exist as [an] Idea.291 This means that before a person can truly
exist, it is necessary for such person to invest his will into the sphere capable of embodying
his freedom.292 As to what precisely this external sphere entails, one only has to look to
the following passage to find the answer:
A person has as his substantive end the right of putting his will into any and every thing and
thereby making it his, because it has no such end in itself and derives its determination and soul
from his will. This is the absolute right of appropriation which human beings have over all
things.293 (Own emphasis.)
It follows that property is the first existence of freedom and so is in itself a substantive
end.294 Consequently, property is the external sphere into which a person must invest his
will in order to exist. Hegels personality theory can be classified as an occupancy theory,
since the owner must invest his will into a thing together with possessing it before
ownership can be obtained.295 Hegels occupancy theory as opposed to the labour theory
does not result in an entitlement that is then fixed forever.296 To maintain ownership, a
persons will must remain present in the object, otherwise the thing becomes ownerless,
because it has been deprived of the actuality of the will and possession.297 It follows that as
this will to possess property comes and goes over time, so property must also come and
go.298 Consequently, the essence of the personality theory entails that property for
291
Hegel GWF Outlines of the Philosophy of Right (1821, Houlgate S ed 1952) para 41.
292
Hegel GWF Outlines of the Philosophy of Right (1821, Houlgate S ed 1952) para 41; Radin MJ Property
and Personhood (1982) 34 Stanford Law Review 957-1015 972; Radin MJ Reinterpreting Property (1993) 7.
293
294
295
and Personhood (1982) 34 Stanford Law Review 957-1015 973.
296
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 973-794. The source of
entitlement for Locke is labour, while Hegel regards the will as the source of such entitlement: See Radin MJ
Property and Personhood (1982) 34 Stanford Law Review 957-1015 961 footnote 7. For a discussion of the
doctrinal implications of such a will theory in property law, see Van der Walt AJ Ownership and Personal
Freedom: Subjectivism in Bernhard Windscheids Theory of Ownership (1993) 56 Tydskrif vir Hedendaagse
Romeins-Hollandse Reg 569-589. Windscheid, like Hegel, also regards the human will as decisive in the context
of property rights: See Van der Walt AJ Ownership and Personal Freedom: Subjectivism in Bernhard
Windscheids Theory of Ownership (1993) 56 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 569-589 572.
In the latter context, see also Van der Walt AJ Unity and Pluralism in Property Theory A Review of Property
Theories and Debates in Recent Literature: Part I 1995 Tydskrif vir die Suid-Afrikaanse Reg 15-42 22-24.
297
298
and Personhood (1982) 34 Stanford Law Review 957-1015 974; Radin MJ Time, Possession, and Alienation
(1986) 64 Washington University Law Quarterly 739-758 741. According to Hegel para 64, this is why persons
can acquire or lose ownership in property through prescription or adverse possession: The form given to a
possession and the sign it presents are themselves externalities but for the subjective presence of the will which
alone constitutes their meaning and value. This presence, however, which is use, employment, or some other
mode in which the will expresses itself, falls within time, and what is objective in time is the continuance of this
expression of the will. Without this the thing becomes ownerless, because it has been deprived of the actuality
192
personhood, namely personal property, gives rise to a stronger moral claim than other
(fungible) property. Put differently, personal property is more worthy of protection than
fungible property in terms of Radins theory. Nonetheless, this does not entail that fungible
property does not constitute property at all, as seen earlier. It merely denotes that personal
property is ranked higher than fungible property in the hierarchy of property that is worthy of
protection or recognition because it is essential to constituting personhood. A similar
approach to Radins distinction between personal and fungible property is reflected in
German constitutional law, where the states power to regulate the limits of property rights
depends on how far a property right is located from the personal autonomy of an owner.299
Accordingly, a persons home (personal property) in German law is more strongly protected
against state regulation than property rights in commercial property (fungible property).300
The personhood dichotomy of personal and fungible property is located on a continuum that
ranges from personal property at the one end to fungible property at the other.301 Radin states
that such a dichotomy is useful because within a given social context certain types of
person-thing relationships are understood to fall close to one end or the other of the
continuum.302 This entails that if rights lie nearer to the fungible end of the continuum, they
can be overridden in some cases where those nearer the personal end cannot be.303 This is
of the will and possession. Therefore I gain or lose possession [or ownership] of property through prescription.
This passage is quoted with approval by Clarke A Use, Time, and Entitlement (2004) 57 Current Legal
Problems 239-275 274 and Radin MJ Time, Possession, and Alienation (1986) 64 Washington University Law
Quarterly 739-758 745 footnote 15.
299
Van der Walt AJ Constitutional Property Clauses: A Comparative Analysis (1999) 135; Van der Walt AJ
Unity and Pluralism in Property Theory A Review of Property Theories and Debates in Recent Literature:
Part I 1995 Tydskrif vir die Suid-Afrikaanse Reg 15-42 27-28; Van der Walt AJ Subject and Society in
Property Theory A Review of Property Theories and Debates in Recent Literature: Part II 1995 Tydskrif vir
die Suid-Afrikaanse Reg 322-345 327-328.
300
Van der Walt AJ Constitutional Property Clauses: A Comparative Analysis (1999) 135-136; Van der Walt
AJ Unity and Pluralism in Property Theory A Review of Property Theories and Debates in Recent Literature:
301
Reinterpreting Property (1993) 2-3; Radin MJ Time, Possession, and Alienation (1986) 64 Washington
University Law Quarterly 739-758 748 footnote 26.
302
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 987. See further Radin MJ
Reinterpreting Property (1993) 3, where she states that this implicitly constitutes a pragmatic approach. For a
discussion as to why Radin feels that this dichotomy (personal property vis--vis fungible property) is useful,
see the discussion in Reinterpreting Property (1993) 3-5, 11-19.
303
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 986. At 988 Radin discusses
the possibility of using Calabresi and Melameds distinction between property rules and liability rules in the
context of personal and fungible property by suggesting that personal property should be protected by a property
rule and that fungible property should perhaps be protected by a liability rule. Calabresi and Melamed developed
this theory in Calabresi G & Melamed AD Property Rules, Liability Rules and Inalienability: One View of the
Cathedral (1972) 85 Harvard Law Review 1089-1128. However, Radin at 988 acknowledges that protecting
193
how one can use Radins theory to justify prescription, especially in situations where the
squatter values the property more than an owner by using and cultivating it, as long as it is
constitutive to such squatters personhood.304 This is affected by the fact that the dichotomy
of personal and fungible property within the personality theory creates a hierarchy of
entitlements, which means that personal property will receive stronger protection than
property that is merely fungible.305 In such a scenario the entitlement obtained by the
possessor of the property vis--vis the neglectful owner can allow his claim to trump the
claim of such owner. The reason for this is that the squatter will probably be treating the
property as personal property, whereas in relation to the owner it can be classified as fungible
property. However, one will have to determine in each case where the property falls on the
continuum to establish which party holds the property as personal property and who is thus
entitled to greater protection. If it is assumed that a house that is owned and inhabited by
someone lies nearer the personal end of the continuum,306 one can argue that this will also be
the case when a squatter inhabits unused property as a home.307 It seems that Grays theory of
moral excludability supports such a finding, especially if the purpose of limiting the owners
ownership is in line with public morality.308 In this sense, claims to property may
sometimes be overridden by the need to attain or further more highly rated social goals,309
such as protecting peoples homes. Indeed, an occupiers relationship with his home is a
fungible property with liability rules will not always be justifiable, for instance where fungible claims of the
rich deprive the poor of meaningful opportunities for personhood. In this context she admits that problems can
arise in using the property/liability rule dichotomy, although she is of the opinion that personal property should
always be protected by a property rule.
304
To the same effect are Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law
Journal 2419-2474 2456-2457 and Merrill TW Property Rules, Liability Rules, and Adverse Possession
(1985) 79 Northwestern University Law Review 1122-1154 1127. For a discussion on using Radins theory to
justify adverse possession in cases involving urban squatters, see Cobb N & Fox L Living Outside the System?
The (Im)morality of Urban Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260
250-252.
305
306
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 987, 991-992. See also
Act 2002 (2007) 27 Legal Studies 236-260 250-252; Fox L Conceptualising Home: Theories, Law and Policies
(2007) 300-303. For a utilitarian argument in favour of this assumption, see Stake JE The Uneasy Case for
Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2457.
307
Registration Act 2002 (2007) 27 Legal Studies 236-260 250-252. See also Auchmuty R Not Just a Good
Childrens Story: A Tribute to Adverse Possession 2004 Conveyancer 293-307 307; Stake JE The Uneasy
Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2457.
308
Gray K Property in Thin Air (1991) 50 Cambridge Law Journal 252-307 280-292.
309
Gray K Property in Thin Air (1991) 50 Cambridge Law Journal 252-307 281.
194
prime example used by Radin, as according to social consensus this relationship is likely to
be constitutive of ones personhood.310 In this context Radin says the following:
[I]n our social context a house that is owned by someone who resides there is generally
understood to be towards the personal end of the continuum. There is both a positive sense that
people are bound up with their homes and a normative sense that this is not fetishistic. 311
In this context Radins personality theory provides an interesting view regarding the claims
of urban squatters toward occupied property vis--vis owners that neglect it.312 This line of
argument is likely to also be applicable in the context of squatters who occupy rural land as
their home.
Against this background one can argue that the personal relationship that develops between
the squatter and the land is more worthy of protection than an absent owners (probably)
fungible relationship with his property. However, such a conclusion will only be justified if it
can be shown that the squatters personal interest in the land is stronger than the owners
interest. Yet, for purposes of this argument the owner must come to regard the property as
fungible, something that according to Stake cannot be assumed merely because the
owner is out of possession.313 Yet, even if the property is of greater personal importance to
the squatter than to the owner, it will have to be shown that the owner no longer believes in
his ownership.314 A solution here is to equate the owners (long-term) non-use with
abandonment, an argument made by Cobb and Fox and supported (from an economic
310
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 992; Cobb N & Fox L
27 Legal Studies 236-260 251; Fox L Conceptualising Home: Theories, Law and Policies (2007) 300-303.
311
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 987. See also Radin MJ
312
Registration Act 2002 (2007) 27 Legal Studies 236-260 251.
313
Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2456.
However, Posner RA Economic Analysis of Law (6th ed 2003) 78 says that [o]ver time, a person becomes
attached to property that he regards as his own, and the deprivation of the property would be wrenching. Over
the same period of time, a person loses attachment to property that he regards as no longer his own, and the
restoration of the property would cause only moderate pleasure. Posner bases this economic approach on
Holmes OW The Path of the Law (1897) 10 Harvard Law Review 457-478 477. See similarly Cobb N & Fox
L Living Outside the System? The (Im)morality of Urban Squatting after the Land Registration Act 2002
(2007) 27 Legal Studies 236-260 251-252. Nonetheless, Sprankling JG An Environmental Critique of Adverse
Possession (1994) 79 Cornell Law Review 816-884 875 criticises Posner for equating non-use with
abandonment. This issue is addressed further under the economic analysis of prescription in section 4.4.4 below.
314
Registration Act 2002 (2007) 27 Legal Studies 236-260 252; Posner RA Economic Analysis of Law (6th ed
2003) 78-79.
195
perspective) by Posner.315 Yet, this argument is harder to justify when owners who are out of
possession still value their ownership but are unaware of the fact that their property is being
adversely possessed.316 In such a scenario it will not be easy to show that the owner has come
to regard the land as mere fungible property. Despite this difficulty, a powerful argument is
to be made in situations where the property is truly constitutive of the squatters personality,
even if the owner is merely absent due to his inactivity regarding the property. Another
solution is to determine which party either the squatter or owner is in direct, physical
possession of the land, together with who is investing time and labour in it. The person who
satisfies these two criteria is likely to have a more personal interest in the land than one
who does not perform these positive and direct acts on the property. Hegels theory which
requires an owner to invest his will into a thing and to possess it to maintain ownership
contributes to such a conclusion.
Other authors (such as Holmes,317 Singer318 and Alexander319) also provide justifications for
adverse possession that are analogous to Radins personality theory. The following passage
from Holmes clearly justifies adverse possession in terms of a personality-theory approach:
A thing which you have enjoyed and used as your own for a long time, whether property or an
opinion, takes root in your being and cannot be torn away without your resenting the act and
trying to defend yourself, however you came by it.320
Thus, Holmes acknowledges that property becomes bound up with a person if it has been
enjoyed for a long time. This is similar to a squatter who comes to regard occupied land as
personal property.
315
Registration Act 2002 (2007) 27 Legal Studies 236-260 251-252; Posner RA Economic Analysis of Law (6th ed
2003) 78, 83. Such an approach is analogous to the social-obligation norm developed by Alexander GS The
Social-Obligation Norm in American Property Law (2009) 94 Cornell Law Review 745-820. This theory is
addressed in the next few paragraphs.
316
As was the situation in JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676. See further
Act 2002 (2007) 27 Legal Studies 236-260 252. This difficulty can be overcome if non-use is equated with
abandonment, as suggested by Posner RA Economic Analysis of Law (6th ed 2003) 78, 83. However, some
authors oppose this approach: See Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown
Law Journal 2419-2474 2456; Sprankling JG An Environmental Critique of Adverse Possession (1994) 79
Cornell Law Review 816-884 875.
317
Holmes OW The Path of the Law (1897) 10 Harvard Law Review 457-478.
318
Singer JW The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751.
319
Alexander GS The Social-Obligation Norm in American Property Law (2009) 94 Cornell Law Review
745-820.
320
Holmes OW The Path of the Law (1897) 10 Harvard Law Review 457-478 477. This view is analogous to
the theory advanced by Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law
Journal 2419-2474 that human beings become attached to property, especially land, through evolutionary
biology.
196
The second theory that is related to the personality theory which can also be used to justify
prescription is Singers theory of the reliance interest in property.321 Singer describes the
effect of the reliance interest as follows:
The legal system sometimes protects the more vulnerable party to the relationship by
recognizing and protecting her reliance interest in property and limiting protection of the
stronger partys interests.322
Singer explicitly states that the reliance interest of a squatter can be used to justify adverse
possession.323 By allowing the squatter to possess his land, the owner condones the
occupation of the squatter through conveying a message to the [squatter] that the owner has
abandoned the property.324 The squatter then begins to rely more and more on the
legitimacy of his occupation, which causes the squatters interest in the property to grow
stronger as time passes.325 Conversely, the owners interest in the property diminishes with
the squatters length of occupation of the property.326 Singer concludes through relying on
Holmes that it would be morally wrong for the true owner to allow a relationship of
dependence to be established and then to cut off the dependant party.327 To protect the
reliance interest of the squatter (the vulnerable party), adverse possession then enters the
picture by awarding ownership to the squatter.328 I argue that the same result is reached in
Radins terms by treating the squatters interest in the property as personal, while the owners
interest becomes more and more fungible as time passes.329
The third trend that bears resemblance to Radins personality theory is the social-obligation
theory of Alexander. I analyse Alexanders theory in more detail than the two previous ones
321
This theory was developed by Singer JW The Reliance Interest in Property (1988) 40 Stanford Law Review
611-751. Interestingly, this theory is analogous to one of the justifications provided for extinctive prescription,
namely that it protects the reasonable reliance of debtors: See Loubser MM Extinctive Prescription (1996) 8-9.
Nonetheless, a discussion of the justifications of extinctive prescription falls outside the scope of this
dissertation.
322
Singer JW The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751 664. See also Merrill
1122-1154 1131, where he states that adverse possession protects the reliance interests that the possessor may
have developed through long standing possession of the property.
323
Singer JW The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751 666.
324
325
Singer JW The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751 666-668.
326
327
328
329
Singer JW The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751 669 footnote 183
shares this view.
197
(of Holmes and Singer) because of the intricate nature of this theory as well as the fact that it
offers an interesting alternative perspective on the moral obligations of owners. Alexander
argues that American property law contains an implicit social-obligation norm, although it
has not yet been explicitly recognised in this field of law. According to him, the social-
obligation norm promotes human flourishing (in the Aristotelian sense of the term), which
enables individuals to live lives worthy of human dignity.330 In this context, people need
access to both community life and property to foster their human flourishing.331 Radin also
requires (personal) property which is constitutive of ones personality to attain human
flourishing, although she does not focus on the social element as such. However, it must be
emphasised that Alexander and Radin draw on different conceptions of human flourishing,
since Alexander uses the Aristotelian notion of human flourishing332 while Radin relies on
Hegel.
Alexander develops his theory by stating that the traditional perspective of ownership is that
it merely entails rights, with little or no obligations toward others. He criticises this rights-
based view of ownership and claims that owners have inherent obligations towards other
people, which obligations he identifies as embodying the social-obligation norm. The
following passage sketches the background of this theory:
Property rights and their correlative obligations are cognizable as social goods, worthy of
vindication by the state, only insofar as they are consistent with community and human
flourishing more generally. In the interest of human flourishing, the community, or more
colloquially, the state, affords legal recognition to asserted claims to resources. Accordingly, the
state does not take away when it abstains from legally vindicating asserted claims to resources
that are inconsistent with human flourishing or with community itself.333
According to Alexander, humans as social and political animals must develop their
capabilities (through virtues) to attain human flourishing.334 Alexander borrows from the
330
745-820 748.
331
745-820 749.
332
745-820 760-763. See further Alexander GS & Pealver EM Properties of Community (2008) 10 Theoretical
Inquiries in Law 127-160 129, 134-145.
333
745-820 749.
334
745-820 761. Virtues, which constitute the building blocks of capabilities, refer to dispositions to do actions that
contribute to living a distinctly human life. Capabilities, on the other hand, may be understood to encompass the
ability to exercise different functionings to constitute a well-lived life. Alexander at 765 identifies four main
capabilities in this regard, namely life, freedom, practical reasoning and sociality. I do not provide an in-depth
198
capabilities approach of Nussbaum and Sen to develop his notion of human flourishing
through advancing ones capabilities.335 To cultivate human flourishing, persons must be able
to develop their capabilities to live a well-lived life, which must include the capability to
choose between alternative life horizons.336
People depend on others (the community) to flourish as humans, since no-one can acquire
these capabilities or secure the resources to acquire them by ones self.337 This approach
illustrates another difference between the theories of Alexander and Radin, since for
Alexander the community (and not only property) is the main requirement for constituting
human flourishing.338 To this end, every person in a community is equally entitled to the
necessary capabilities to help promote flourishing. However, mere virtues are not enough for
human beings to develop their capabilities; they also need material resources to foster these
capabilities. Because humans are social animals and dependent on each other, it follows that
human flourishing requires distributive justice, the ultimate objective of which is to give
people what they need in order to develop the capabilities necessary for living the well-lived
life.339 This notion of distributive justice (which is required for every person to flourish)
forms one of the roots of the social-obligation norm. Another basis for this norm is the idea
that the well-being of the community, which aids the flourishing of individuals, depends on
each individuals assistance to the community.340 Furthermore, if a person as a rational
being values his own flourishing, it follows that he must also value the flourishing of
others. The core of this third source of the social-obligation norm can be captured as follows:
analysis of the contents of virtues, capabilities or functionings here. For a more detailed discussion, see
Alexander GS & Pealver EM Properties of Community (2008) 10 Theoretical Inquiries in Law 127-160 134-
138.
335
See Alexander GS The Social-Obligation Norm in American Property Law (2009) 94 Cornell Law Review
745-820 762-765, who relies on Nussbaum MC Women and Human Development: The Capabilities Approach
(2000) and Sen A Commodities and Capabilities (1985). A detailed discussion of the capabilities approach,
together with the work of these two authors, falls outside the scope of this dissertation. For a discussion, see
Alexander GS & Pealver EM Properties of Community (2008) 10 Theoretical Inquiries in Law 127-160 136-
138.
336
745-820 761-762. See further Alexander GS & Pealver EM Properties of Community (2008) 10 Theoretical
Inquiries in Law 127-160 134-135.
337
745-820 765. See further Alexander GS & Pealver EM Properties of Community (2008) 10 Theoretical
338
745-820 761.
339
745-820 768.
340
745-820 768.
199
Our affirmation of the moral value of the requisite capabilities means that we recognize that
capabilities [to attain human flourishing] have a special moral status and that we acknowledge
as a good that those capabilities develop both in ourselves and in others. [Therefore], we must
make the same normative commitment to developing them in others as we have committed to
developing them in ourselves.341 (Own emphasis.)
Since persons unavoidably rely on other people to develop their capabilities to flourish, there
rests a social obligation on individuals in the community to help others to foster their
capabilities for attaining human flourishing. Alexander describes the content of the social-
obligation norm as entailing that owners have a moral obligation to contribute to the society
or community of which he forms part those benefits that the society reasonably regards
as necessary for human flourishing.342 These benefits encompass things that are necessary
for members of the community to develop their capabilities to flourish, which includes
resources like land. Alexander then illustrates that his social-obligation norm underlies
important legal institutions such as expropriation (eminent domain in US law), which
requires individuals to sacrifice property for legitimate government initiatives that benefit the
flourishing of the community.343 Take, for example, a scenario where the state wishes to
acquire property situated in a specific area that is the only viable location where it can build a
crucial new highway. In such a case the state must use its power of expropriation to acquire
the properties at a reasonable price, otherwise the owners may hold out in an attempt to extort
absurd offers from the government. Although the affected owners will receive compensation,
compensation cannot always make good the personal and sentimental losses some owners
experience when their property is expropriated, especially when considering Michelmans
notion of demoralisation costs.344 Nonetheless, this burden that the state places on some
individual owners is justified according to Alexander in terms of the social-obligation
norm, since the flourishing of the community is greatly enhanced by the construction of
important infrastructure, namely a highway that will lead to reduced traffic congestion.345 It
341
745-820 769 (footnotes omitted).
342
343
745-820 773-779.
344
This notion was developed by Michelman FI Property, Utility, and Fairness: Comments on the Ethical
Foundations of Just Compensation Law (1967) 80 Harvard Law Review 1165-1258.
345
The more widely accepted rationale behind expropriation in US law is based on law and economics theory,
namely that it helps to shift property to a higher-valuing user (the state, in this case) in situations where high
transaction costs prevent such voluntary transaction from taking place: See Posner RA Economic Analysis of
Law (6th ed 2003) 55-56. It is worth emphasising that although the law and economics theory solution overlaps
200
follows that the social-obligation norm requires the affected owners to sacrifice their property
for purposes of fostering the human flourishing of the community. The state recognises the
social obligation of the owners through expropriating their land against payment of
compensation and by building the important new highway over those properties.
Against this background, I argue that the social-obligation norm also underlies the acquisition
of ownership through prescription.346 Prescription normally involves a situation where an
owner has allowed a squatter to possess his land for a long period of time. Such squatters
are often poor and/or landless,347 although this may not always be the case. What is certain,
however, is that the property must be sufficiently unimportant to the owner for him to be
unaware of the presence of the squatter during the running of prescription. In this sense it is
clear that the longer the squatter possesses the land, the more it will contribute to his human
flourishing, a position that is similar to Radins personality theory as well as the approach of
Holmes. On the flipside, the property will become more unimportant to the owner, as one can
deduce from his neglect or inattention. This conclusion is based on the observation that the
land will steadily become essential to the squatters development of his capabilities to
flourish, as he will be investing time and energy into the property. At the same time the
property will probably become less constitutive to the flourishing of the owner because of his
neglect of the land. Under these circumstances, the social-obligation norm obliges the owner
to help the squatter as a member of the community to develop his capabilities to attain
human flourishing by giving the land to him, since the land is no longer constitutive of the
owners flourishing. Consequently, the law recognises the social obligation of the owner (as
with expropriation in US law)348 by awarding ownership to the squatter through prescription
for purposes of fostering his capabilities to lead a well-lived life. This position is analogous to
Singers reliance-interest theory, which entails that the settled expectations of squatters (and
third parties) must be protected if they have existed for long periods of time. Indeed,
with that of the social-obligation norm in this specific instance, the two theories are not the same: See Alexander
GS The Social-Obligation Norm in American Property Law (2009) 94 Cornell Law Review 745-820 777. See
section 4.4.4 below for the economic analysis of prescription.
346
I am indebted to Prof Alexander for discussions that helped me formulate my arguments in this context.
347
This observation was made by Fennell LA Efficient Trespass: The Case for Bad Faith Adverse
Possession (2006) 100 Northwestern University Law Review 1037-1096 1081.
348
The enforcement of social-obligation norm through prescription differs from cases concerning expropriation,
which requires the payment of compensation. The reason that the rules of prescription do not require the
squatter to compensate the owner is because the property is unlikely to be constitutive of the flourishing of the
owner. This position differs from that of expropriation, where the state must compensate owners who lose
property that most of them will regard as essential for leading a well-lived life. Since the property is likely to be
unimportant to the flourishing of the owner in the context of prescription, no compensation is needed to offset
this negative impact, namely the loss of ownership.
201
Alexander acknowledges his theorys family resemblance to that of Singer.349 If one views
prescription from this angle, it is clear that the social-obligation norm justifies prescription,
since this legal institution entails that the state abstains from legally vindicating [absent
owners] claims to resources that are inconsistent with [their] human flourishing or with
community itself.350
Another way of interpreting the social-obligation norm is through recognising as Cobb and
Fox advocate that each owner has an obligation or duty of stewardship351 to look after his
property, although such an obligation does not compel owners to make use of their
property.352 To use the language of Rose, this obligation or duty merely requires an owner to
assert [his] right publicly 353 by evicting persons who may be trespassing on his land.
Should an owner not adhere to this obligation, the land is likely to be less important to him
for attaining the capabilities to flourish. In this context the land is capable of becoming a vital
resource for the squatter to develop his capabilities to lead a well-lived life, as argued in the
previous paragraph. It follows that the social-obligation norm dictates that the owner must
then give the land to the squatter as a member of the community to help him attain
human flourishing. However, it may be problematic to determine at what point in time the
property has become sufficiently unimportant to the flourishing of the owner, as well as
sufficiently important to the possessor, to justify the shifting of ownership to the squatter.354
This problem can be solved, in my view, by having a long prescription period, which will be
indicative of how the land contributes to the flourishing of the two parties. In this sense the
land will probably be more essential to the capabilities of the squatter to achieve the well-
lived life if he possessed the land for a long period of time. This will be even more so if the
squatter occupies the property as a home,355 which resembles Radins personality theory. If
so, it can be argued that prescription in South African law, which has a 30-year prescription
period, properly internalises the social obligation of owners in this regard.
349
745-820 748 footnote 7.
350
745-820 749.
351
I borrow this term from Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting
after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260 254.
352
Registration Act 2002 (2007) 27 Legal Studies 236-260 253-256.
353
Rose CM Possession as the Origin of Property (1985) 52 University of Chicago Law Review 73-88 79.
354
This is also a problem for Radins personality theory, as mentioned earlier.
355
745-820 816.
202
The fides of the squatter seems irrelevant for the social-obligation theory, since land can
become essential to developing ones capabilities even when you know (mala fide) that it
does not belong to you. This will especially be the case where the squatter is poor and/or
landless and has no viable means to acquire property necessary to attain human flourishing.
This argument finds further support in the fallacious arguments for distinguishing between
good and bad faith possessors, which are addressed below.356 I now return to Radins
personality theory.
With the interplay between personal and fungible property, together with Hegels personality
theory, it is clear that the temporal dimension is important to the personality theory.357 It was
seen that ownership in terms of the Hegelian theory is acquired by placing ones will into the
object together with possessing it.358 According to Radin, this idea suggests that a squatters
interest in land grows stronger as the squatter becomes bound up with it over time.359 On
the other hand, the claim to an object grows weaker as the will (or personhood) is
withdrawn.360 It follows that in terms of Radins theory the strength of property claims is
dynamic, since the relationship between persons and objects can increase or diminish as time
passes.361 Furthermore, the personality theory does not have the same problems that rule-
utilitarianism has regarding the temporal dimension, since it concerns itself with the
relationship between persons and property and not general happiness or utility.362 The
personality theory also circumvents one of the labour theorys problems by focusing on the
relationship that develops between persons and objects rather than on some aboriginal
356
See the discussion of the anomaly of the mala fide possessor in section 4.5 below.
357
Hegel GWF Outlines of the Philosophy of Right (1821, Houlgate S ed 1952) para 64; Radin MJ Time,
Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 741.
358
359
(1986) 64 Washington University Law Quarterly 739-758 741.
360
Radin MJ Time, Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 741;
Hegel GWF Outlines of the Philosophy of Right (1821, Houlgate S ed 1952) para 64; Radin MJ Property and
Personhood (1982) 34 Stanford Law Review 957-1015 974.
361
(1986) 64 Washington University Law Quarterly 739-758 741.
362
This issue is elaborated upon in section 4.4.4 below, which focuses on utilitarianism and law and economics
theory.
203
appropriation.363 Instead, the personality theory must establish how to define personhood
and how to determine whether a person-thing relationship is either personal or fungible.364
The personality theory entails that if it takes time for a person to invest his will into
property a (neglectful) owners initial personal interest becomes more fungible as time
passes.365 Consequently, a squatters interest in property is likely to become more personal as
time passes,366 as long as it does not become one that is fetishistic in nature. In this context
the problem lies in determining at what moment in time the owners interest is sufficiently
fungible for a squatter, who maintains a personal interest, to be entitled to acquire that
property through prescription. Since the personality theory entails a moral judgment, it may
be best to have a formal rule such as a mechanical entitlement determination rule367 with a
fixed time period if such an approach entails less risk of moral error.368 I believe that this
363
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 961 footnote 7; Radin MJ
Time, Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 742.
364
It is clear that Radin focuses on the relationship between persons and objects, instead of the relationship
between persons regarding an object. Schnably SJ Property and Pragmatism: A Critique of Radins Theory of
Property and Personhood (1993) 45 Stanford Law Review 347-407 352, 379 critiques Radin in this context and
points out that her theory contains an implicit conservative bias. According to him (352), Radins theory both
hides and glorifies power by using social consensus to determine the type of relationships that exist between
persons and property. By separating moral issues from legal ones (in allowing personal property interests to
trump fungible interests), Schnably (353) emphasises that Radin ignores the role of power in informing the
consensual norm she uses to distinguish between personal and fungible property relationships. This is indeed a
problem for Radin, especially against the background of the rights as relationships theory developed by
Nedelsky J Reconceiving Rights as Relationships (1993) 1 Review of Constitutional Studies 1-26 7-8, 13-14.
In this context Nedelsky (13) states that property rights are not primarily about things, but about peoples
relation to each other as they affect and are affected by things. The focus on the relationship between people
and objects is less of a problem for Hegel, though, since for him the will theory is a matter of power towards
other people. Windscheid also refers to this will in property as constituting a power relationship between people
regarding property, although he regards it as negative in nature: See Van der Walt AJ Ownership and Personal
Freedom: Subjectivism in Bernhard Windscheids Theory of Ownership (1993) 56 Tydskrif vir Hedendaagse
Romeins-Hollandse Reg 569-589 573 and Van der Walt AJ Unity and Pluralism in Property Theory A
Review of Property Theories and Debates in Recent Literature: Part I 1995 Tydskrif vir die Suid-Afrikaanse
Reg 15-42 22-24. Yet, this shortcoming in Radins theory can be overcome if one has regard to Alexanders
social-obligation norm, which incorporates elements of community and property: See Alexander GS The
Social-Obligation Norm in American Property Law (2009) 94 Cornell Law Review 745-820 761-768.
365
Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 748-749.
366
2466 warns that this could present a problem concerning the aggregation of periods of adverse possession if one
attempts to justify adverse possession under Radins personality theory. It seems that this anomaly cannot be
adequately explained by the personality theory. Accordingly, the principle of coniunctio temporum is better
accommodated in the legal certainty argument, since it rests on the impression of ownership being transferred
from one person to another.
367
As developed by Merrill TW Property Rules, Liability Rules, and Adverse Possession (1985) 79
Northwestern University Law Review 1122-1154 1137-1145. The advantages of having prescription operate as a
mechanical entitlement determination rule is discussed in section 4.4.4 below.
368
Merrill TW Property Rules, Liability Rules, and Adverse Possession (1985) 79 Northwestern University Law
204
approach is preferable to one decided on a case-by-case basis, especially since Radins theory
does not prescribe definitive rules for making a moral judgment call under these
circumstances. A moral judgment could lead to diverging results based on similar sets of
facts, which can result in legal uncertainty. If the formal-rule route is followed, there is no
simple answer as to what time period will be sufficient to deem an owners property interest
as fungible. In this setting English law now requires 12 years for adverse possession of
unregistered land, while South African law operates with a 30-year period.369 Radin evades a
direct answer in this regard by suggesting that the period chosen must be based on a socially
acceptable or right time that it takes to become attached to or detached from objects.370
From this discussion it is clear that it is possible to use the personality theory to justify
adverse possession.371 It follows that ownership is dependent on the presence of someones
will (or personhood) in the property, coupled with possession of the thing.372 For instance, if
the original owner withdraws his will and abandons possession, another person is then able to
acquire a right in that property by investing his own will into it together with taking
possession. This provides a moral ground for justifying the acquisition of property by the
adverse possessor, since he will regard the property as personal while the owner probably
treats it as fungible property. The question of whether the personality theory justifies bad
faith prescription is addressed below.373
4.4.4 Utilitarianism and law and economics theory
Review 1122-1154 1141 thinks that an arbitrary number of years will be the best in this context, although he
writes against the background of bona fide adverse possession.
369
See section 3.2.2.1 of chapter three and section 2.3.1 of chapter two respectively above.
370
371
Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 745. In the words of
Radin at 745, the personality theory eas[ily] accommodates adverse possession. See further Cobb N & Fox L
27 Legal Studies 236-260 250-251; Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown
Law Journal 2419-2474 2420, 2456; Merrill TW (ed) Time, Property Rights, and the Common Law Round
Table Discussion (1986) 64 Washington University Law Quarterly 793-865 814; Merrill TW Property Rules,
Liability Rules, and Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1127,
1131; Holmes OW The Path of the Law (1897) 10 Harvard Law Review 457-478 477.
372
Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 745; Radin MJ Property
373
See section 4.5 below.
205
Finally, I turn to the justifications for prescription in utilitarianism and law and economics
theory. Bentham is the father of the utilitarian school of thought, yet it was Mill who coined
the term utilitarianism.374 Utilitarianism attempts to maximise the greatest happiness of
the greatest number and regards this as the measure of right and wrong.375 Therefore, the
aim of utilitarianism is to arrange legal rules to maximise happiness (or utility), which is
achieved through maximising happiness for the greatest number of people.376 Law and
economics theory on the other hand aims to structure law to maximise another form of
utility, namely economic efficiency.377 Since both these theories aim to maximise utility,
which is viewed as either happiness of the greatest number or economic efficiency, it is clear
that law and economics theory has its roots in utilitarianism.378 This is why these two theories
are discussed together in this section.
Unfortunately, Benthamite utilitarianism falls prey to criticism, namely that it can be (ab)used
to justify laws that provide happiness for the majority, while those laws cause the minority to
endure pain.379 Nonetheless, one can overcome this problem by focusing on the work of Mill,
the most famous utilitarian after Bentham.380 Mills theory of utilitarianism attempts to
establish a relationship between utility and justice,381 which eliminates the mentioned
injustice. Although the content of justice is elusive, Mill thinks that the answer to this
conundrum is found in the resentment caused by injustice.382 By identifying injustice,
utilitarianism is then able to maximise happiness by eliminating it. Against this background,
Mill states that possession ought to be recognised as ownership if it has not been challenged
within a moderate number of years:
Even when the acquisition was wrongful, the dispossession, after a generation has elapsed, of
the probably bona fide possessors, by the revival of a claim which had been long dormant,
374
Kelly JM A Short History of Western Legal Theory (1992) 317.
375
Bentham J A Fragment on Government and an Introduction to the Principles of Morals and Legislation
(1776, Harrison W ed 1948) 3 para 2.
376
Kelly JM A Short History of Western Legal Theory (1992) 315. See also Kroeze IJ Legal Positivism in
Roederer C & Moellendorf D (eds) Jurisprudence (2004) 62-83 66.
377
Miceli TJ Property in Backhaus JG (ed) The Elgar Companion to Law and Economics (2nd ed 2005) 246-
260 246; Posner RA Economic Analysis of Law (6th ed 2003) 27-28.
378
Kelly JM A Short History of Western Legal Theory (1992) 436-437.
379
Ross D Law and Economics in Roederer C & Moellendorf D (eds) Jurisprudence (2004) 186-213 190-191.
380
Ross D Law and Economics in Roederer C & Moellendorf D (eds) Jurisprudence (2004) 186-213 189;
381
382
206
would generally be a greater injustice, and almost always [cause] a greater private and public
mischief, than leaving the original wrong without atonement.383 (Emphasis added.)
This approach is similar to the one adopted in Cholmondeley v Clinton,384 where the Court
assumed that the squatter will suffer greater hardship if the owner is allowed to reclaim
possession after the expiration of the limitation period.385 As was seen in the discussion of
English law above,386 Dockray criticises this argument for oversimplifying matters.387
However, adverse possession could be justified under Mills theory if injustice entails that
(neglectful) owners can never lose ownership in property possessed by a squatter.
Furthermore, one can also argue in favour of Mill if the hardship388 he refers to includes
elements of Radins personality theory, the social-obligation norm389 of Alexander as well as
the reliance interest390 of the adverse possessor.391 Without specifying a time period, Mill
mentions that the acquisition of ownership through wrongful occupation is justified after a
generation has elapsed. It seems that Mill had a longer period in mind than the mere 12
years required for adverse possession in English law before the 2002 Act came into
operation.392 Indeed, Mills argument provides an even stronger justification in systems with
longer periods, such as South Africa, where the prescription period is 30 years.393
383
Mill JS Principles of Political Economy (1902) 134-135 2, quoted with approval by Clarke A Use, Time,
and Entitlement (2004) 57 Current Legal Problems 239-275 272-273.
384
(1820) 2 Jac & W 1.
385
(1820) 2 Jac & W 1 140. Of the same mind is Mill JS Principles of Political Economy (1902) 2, where he
states that [i]t may seem hard, that a claim, originally just, should be defeated by mere lapse of time; but there
is a time after which ... the balance of hardship turns the other way.
386
See the paragraph where the relevant passage from Cholmondeley v Clinton (1820) 2 Jac & W 1 140 is
quoted in section 4.3.2 above.
387
Near the end of this section I discuss Merrills economic approach for justifying adverse possession as a
mechanical entitlement determination rule, which helps to refute this objection from Dockray.
388
The phrase balance of hardship is used by Mill JS Principles of Political Economy (1902) 2.
389
745-820 developed this theory, which is discussed in greater detail in section 4.4.3 above.
390
Singer JW The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751 developed this
theory, which is discussed in greater detail in section 4.4.3 above.
391
Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 741, 748-750; Singer JW
Introduction to Property (2nd ed 2005) 159-161; Singer JW Entitlement The Paradoxes of Property (2000) 45-
46; Miceli TJ, Sirmans CF & Turnbull GK Title Assurance and Incentives for Efficient Land Use (1998) 6
European Journal of Law and Economics 305-323 310-311; Miceli TJ & Sirmans CF The Economics of Land
Transfer and Title Insurance (1995) 10 Journal of Real Estate Finance and Economics 81-88 83-84; Singer JW
The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751 666-668 footnote 174; Merrill TW
Property Rules, Liability Rules, and Adverse Possession (1985) 79 Northwestern University Law Review
1122-1154 1131-1332; Holmes OW The Path of the Law (1897) 10 Harvard Law Review 457-478 477.
392
See section 3.2.2.1 of chapter three above.
393
207
There are two types of utilitarianism, namely consequentialism (act-utilitarianism) and rule-
morality (rule-utilitarianism).394 Act-utilitarianism takes the consequences of an act into
account to determine whether that act can maximise utility, while the consequences of an act
are irrelevant for rule-utilitarianism.395 Instead, rule-utilitarianism attempts to ascertain which
(moral) rules as opposed to acts are able to maximise utility.396
It must be emphasised that the role of time is vital for discovering whether utilitarianism can
justify prescription. In this sense, act-utilitarianism attempts to maximise utility now.397
Radin criticises act-utilitarianism in this regard, since human interactions and our
environment are dynamic, so as time moves on the preferred or justified course of action
changes.398 Accordingly, act-utilitarianism must look to the future to decide whether an act
is able to maximise utility, which is an undesirable approach because of its uncertainty.399 To
the contrary is rule-utilitarianism, which seeks to maximise utility in the long run.400 In
order to maximise utility, rule-utilitarianism focuses on how a certain rule affects a property
regime over time.401 It follows that time is central to rule-utilitarianism.402 Unfortunately, this
approach involves problematic questions. For instance, how long is the long run? Does it
include people who are no longer alive?403 These questions are unfortunately not easily
answered by rule-utilitarianism.
Epstein justifies adverse possession in this context through the doctrine of relative title, which
provides a clear and expeditious temporal rule to resolve conflicting claims.404 This is
because first possession in the Lockean sense is not always best, since what comes last
394
Knowles D Political Philosophy (2001) 25.
395
396
397
398
399
400
Ellickson RC Adverse Possession and Perpetuities Law: Two Dents in the Libertarian Model of Property
Rights (1986) 64 Washington University Law Quarterly 723-737 724-725.
401
Rights (1986) 64 Washington University Law Quarterly 723-737 724-725.
402
403
These two questions are asked amongst others by Radin MJ Time, Possession, and Alienation (1986)
64 Washington University Law Quarterly 739-758 741.
404
208
is more reliable and certain.405 Accordingly, utility is maximised in a legal system by having
a rule, namely the acquisition of property through adverse possession, which resolves
conflicting claims and promotes legal certainty. Though Epstein advances his justification for
prescription from a transaction-cost point of view, Radin to my mind correctly states that
this approach constitutes a species of rule-utilitarianism.406 I agree that utility is maximised
through rule-utilitarianism when it allows adverse possession to decide disputes and to clear
titles, as Epstein mentions.407 Indeed, for him the issue is not whether adverse possession
should be allowed or not, but rather how its rules can be structured to maximise utility.408
This conclusion finds further support if adverse possession operates as a mechanical
entitlement determination rule, since its aims are clearly analogous to those of rule-
utilitarianism.409 Even Mill is in favour of justifying adverse possession in this context, for he
states that title, after a certain period, should be given by prescription.410
Since rule-utilitarianism maximises utility through clearing titles and by facilitating

transactions in the long run, this type of utilitarianism seems to regard a squatters subjective
mindset as irrelevant.411 Indeed, Radin is of the opinion that utilitarianism can justify both
good and bad faith adverse possession.412 Furthermore, Mill413 does not seem to exclude the
mala fide squatter from his scheme of prescription, which ties in with Fennells argument that
it is fallacious to only allow already-landed bona fide squatters to succeed with adverse
405
406
407
Registration Act 2002 (2007) 27 Legal Studies 236-260 252 and Radin MJ Time, Possession, and Alienation
(1986) 64 Washington University Law Quarterly 739-758 743-745, 747-748 agree with this conclusion.
408
University Law Quarterly 667-722 680-693. See also Ellickson RC Adverse Possession and Perpetuities Law:
737 725-734.
409
Law Review 1122-1154 1137-1145 thinks that adverse possession is economically justified if it operates as a
mechanical entitlement determination rule, which I discuss near the end of this section. There are definite
similarities between such a rule and rule-utilitarianism, since both notions attempt to maximise utility, albeit in
different contexts.
410
Mill JS Principles of Political Economy (1902) 2.
411
This is in line with the reading of Mill JS Principles of Political Economy (1902) 2. See further Radin MJ
Time, Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 747; Cobb N &
Fox L Living Outside the System? The (Im)morality of Urban Squatting after the Land Registration Act 2002
(2007) 27 Legal Studies 236-260 252.
412
413
Mill JS Principles of Political Economy (1902) 2.
209
possession claims.414 Nonetheless, Epstein argues that bad faith adverse possessors must be
subjected to a longer prescription period before acquiring title.415 The utilitarian ground for
this argument is that [p]arties who engage in deliberate wrongs constitute a greater threat
than those who make innocent errors or are simply negligent: there is a greater danger that
intentional wrongdoers will do it all again.416 However, is it truly wrong to accommodate
bad faith adverse possession in a utilitarian framework if such possessors use the land
productively in the absence of a neglecting owner?417 Epsteins approach418 which
differentiates between good and bad faith adverse possession is unattractive because bad
faith will then have to be proved in court, which will increase litigation costs.419
Since a squatter may have a greater need for property than the owner, one can argue that
adverse possession is also justified in a utilitarian scheme that aims to maximise utility for
both squatter and owner.420 This argument is even more convincing in the context of a
414
University Law Review 1037-1096 1081; Cobb N & Fox L Living Outside the System? The (Im)morality of
Urban Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260 253.
415
University Law Quarterly 667-722 685-689. For a similar suggestion, see Merrill TW Property Rules, Liability
Rules, and Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1143-1153.
416
417
Radin MJ Time, Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 747
footnote 21; Netter JM, Hersch PL & Manson WD An Economic Analysis of Adverse Possession Statutes
(1986) 6 International Review of Law and Economics 217-227 219.
418
University Law Quarterly 667-722 685-689. For a similar suggestion, see Merrill TW Property Rules, Liability
Rules, and Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1143-1153.
419
Radin MJ Time, Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 747
footnote 21; Singer JW Introduction to Property (2nd ed 2005) 162; Miceli TJ Property in Backhaus JG (ed)
The Elgar Companion to Law and Economics (2nd ed 2005) 246-260 249; Bouckaert B & Depoorter BWF
Adverse Possession: Title Systems in Bouckaert B & De Geest G (eds) Encyclopedia of Law and Economics
(1999) http://encyclo.findlaw.com/ (accessed 7 October 2010) 1200: 18-31 25.
420
Registration Act 2002 (2007) 27 Legal Studies 236-260 252; Ellickson RC Adverse Possession and
Law Quarterly 723-737 724-725, 725-734. To the same effect are Sprankling JG An Environmental Critique of
Adverse Possession (1994) 79 Cornell Law Review 816-884 819; Epstein RA Past and Future: The Temporal
Dimension in the Law of Property (1986) 64 Washington University Law Quarterly 667-722 674-675, 680;
For criticism of the utilitarian justification for adverse possession in general, see the objections with reference to
the loss aversion theory raised by Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown
Law Journal 2419-2474 2458-2463. According to Stake at 2459, in the theory of loss aversion losses have
greater subjective impact than objectively commensurate gains. However, Stake at 2463-2471 acknowledges
that the theory of loss aversion can be used to justify both good faith and bad faith adverse possession regarding
land, if the adverse possessor is able to prove that he was more attached to the land than the owner.
210
homeless adverse possessor who occupies land that is of no present use to the owner.421
Consequently, a squatter occupying property as a home will have a greater need for such
property than an owner who does not use it.422 Interestingly, the English Law Commission
acknowledged the relevance of use-value to urban squatters by not classifying all squatters as
land thieves.423 The Law Commission expressed understandable sympathy for homeless
squatters occupying empty properties, since it recognised that unlawful occupation may arise
from a housing shortage.424 Nonetheless, the Law Commission circumvented this matter by
stating that the much more typical case in practice is the landowner with an eye to the main
chance, who encroaches on his neighbours land.425 It seems that the Commissions
sympathy was limited, with bad faith squatters labelled as land thieves in comparison to the
tolerance shown towards persons making mistakes concerning boundaries.426 In this context
Fennell makes an important distinction between good faith or inadvertent squatters and bad
faith or advertent squatters:
The prototypical squatter is poor and landless. People who own no land cannot mistakenly
believe that the land they are occupying is their own. In this regard, a good faith requirement is
distributively conservative, designed to benefit only the already-landed.427
421
Registration Act 2002 (2007) 27 Legal Studies 236-260 252. To the same effect is Auchmuty R Not Just a
Good Childrens Story: A Tribute to Adverse Possession 2004 Conveyancer 293-307 307.
422
Registration Act 2002 (2007) 27 Legal Studies 236-260 252; Fennell LA Efficient Trespass: The Case for
Bad Faith Adverse Possession (2006) 100 Northwestern University Law Review 1037-1096 1080-1083. Stake
JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2458 challenges
this model for apparently condoning theft on grounds of an individuals relative poverty, together with the
increase in monitoring costs and protection of property. Yet, Stake at 2458 acknowledges that there is a
difference between the usual cases of theft and acquiring land through adverse possession. For an argument
contrary to his objection, see Green K Citizens and Squatters: Under the Surfaces of Land Law in Bright S &
Dewar JK (eds) Land Law: Themes and Perspectives (1998) 229-256 241.
423
This is clear from Land Registration for the Twenty-First Century: A Conveyancing Revolution Number
271 (July 2001) para 2.70; Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting
after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260 252-253.
424
2.70; Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after the Land
Registration Act 2002 (2007) 27 Legal Studies 236-260 252-253.
425
2.70; Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after the Land
Registration Act 2002 (2007) 27 Legal Studies 236-260 253. This position is contested by Clarke A Use,
Time, and Entitlement (2004) 57 Current Legal Problems 239-275 250, who reviewed 44 adverse possession
cases decided since 2000 and found that only six of these concerned landowner[s] with an eye to the main
chance that encroached onto their neighbours land.
426
1998) para 10.5; Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after the
Land Registration Act 2002 (2007) 27 Legal Studies 236-260 253.
427
University Law Review 1037-1096 1081, quoted with approval in Cobb N & Fox L Living Outside the System?
211
Fennell prefers to refer to squatters as either advertent (knowing) or inadvertent, as
opposed to labelling them as being in good or bad faith.428 She then argues that adverse
possession helps to reallocate property to advertent squatters when markets cannot achieve
this purpose, since advertent squatters knowing that they do not own the land qualify as
higher-valuing users of the land.429 This approach counters the argument made by the Law
Commission and suggests that adverse possession can provide a medium for property
redistribution to advance social welfare.430 As a result, Fennell thinks that the presence of bad
faith should not prevent the possibility of acquiring land through adverse possession, since
land occupied by the squatter may be more important to him than to the absent owner.431
253.
428
University Law Review 1037-1096 1037 footnote 1.
429
University Law Review 1037-1096 1077, 1080-1083; Cobb N & Fox L Living Outside the System? The
(Im)morality of Urban Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260 253;
het Verjaringsrecht (2007) 39 Rechtskundig Weekblad 1582-1597 1585; Pealver EM & Katyal SK Property
Outlaws (2007) 155 University of Pennsylvania Law Review 1095-1186 1169. Pealver and Katyal at 1169
refer to this instance as rather constituting efficient theft. See further Cooter R & Ulen T Law and Economics
(4th ed 2004) 155; Dixon M The Reform of Property Law and the Land Registration Act 2002: A Risk
Assessment 2003 Conveyancer 136-156 151-152; Baker M, Miceli T, Sirmans CF & Turnbull GK Property
Rights by Squatting: Land Ownership Risk and Adverse Possession Statutes (2001) 77 Land Economics 360-
370 360; Merrill TW Property Rules, Liability Rules, and Adverse Possession (1985) 79 Northwestern
University Law Review 1122-1154 1130-1131; Rose CM Possession as the Origin of Property (1985) 52
University of Chicago Law Review 73-88 79, all of whom argue that adverse possession encourages efficient
land use. However, this point is contentious: See Miceli TJ Property in Backhaus JG (ed) The Elgar
Companion to Law and Economics (2nd ed 2005) 246-260 255; Stake JE The Uneasy Case for Adverse
Possession (2001) 89 Georgetown Law Journal 2419-2474 2433; Miceli TJ & Sirmans CF An Economic
Theory of Adverse Possession (1995) 15 International Review of Law and Economics 161-173 161; Netter JM,
Hersch PL & Manson WD An Economic Analysis of Adverse Possession Statutes (1986) 6 International
Review of Law and Economics 217-227 219, all stating that owners know best how to use their property
efficiently, which includes letting it lie unused. Of the same mind is Sprankling JG An Environmental Critique
of Adverse Possession (1994) 79 Cornell Law Review 816-884 875, although he addresses adverse possession
against the background of wild and undeveloped lands. Merrill TW Property Rules, Liability Rules, and
Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1130-1131 counters these
objections to my mind correctly by saying that the critics overstate what is required of an owner to prevent
loss of ownership through adverse possession, which is simply to assert ones ownership from time to time.
430
1186 1153-1154; Fennell LA Efficient Trespass: The Case for Bad Faith Adverse Possession (2006) 100
Northwestern University Law Review 1037-1096 1080-1083; Cobb N & Fox L Living Outside the System?
The (Im)morality of Urban Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies 236-
260 253.
431
University Law Review 1037-1096 1081-1082; Cobb N & Fox L Living Outside the System? The (Im)morality
of Urban Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260 253. The value that
the land represents may not only be higher for the squatter in utilitarian or economic terms, but also in terms of
Radins personality theory, together with Singers analysis of the reliance interest of the squatter: See Radin MJ
Property and Personhood (1982) 34 Stanford Law Review 957-1015 974; Radin MJ Time, Possession, and
Alienation (1986) 64 Washington University Law Quarterly 739-758 741, 748-750; Singer JW Introduction to
Property (2nd ed 2005) 159-161; Singer JW Entitlement The Paradoxes of Property (2000) 45-46; Singer JW
212
Utilitarian explanations are discernable in the economic justifications Fennell presents in her
approach.432 Her reference to squatters as higher-valuing users makes a moral judgment of
who deserves the property more,433 a dichotomy that is analogous to Radins distinction
between personal and fungible property.434 Ellickson strengthens the utilitarian
justification for adverse possession by focusing like Radin on the relationship that
develops between a person and an object over time.435 According to him
[a] utilitarian should see value in protecting peoples territorial roots. The notion of
territoriality is extremely important in biology. The sociobiologists who have ventured to apply
biological theory to humans have understandably created controversy. Yet it is plausible that
humans are to some degree territorial, and that this tendency has helped shape adverse
possession law. Someone who resides or works on a particular piece of land has, in Peggy
Radins terms, invested his personhood in it, or, in my terms, is vulnerable to suffering
demoralization costs upon being dispossessed from the property. ... I therefore treat damage
from uprooting as a demoralization cost. During the early stages of adverse possession, I assume
demoralization considerations favor the original owners, but as time passes the adverse
possessor can lay claim to deeper roots.436
The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751 666-668 footnote 174. For the
view that adverse possession qualifies as a medium to advance social welfare, see Pealver EM & Katyal SK
Property Outlaws (2007) 155 University of Pennsylvania Law Review 1095-1186 1153-1154; Fennell LA
Efficient Trespass: The Case for Bad Faith Adverse Possession (2006) 100 Northwestern University Law
Review 1037-1096 1080-1083. Furthermore, according to the social-obligation theory developed by Alexander
GS The Social-Obligation Norm in American Property Law (2009) 94 Cornell Law Review 745-820, the
property may also come to be more essential to the squatter than it is for the owner for purposes of achieving
human flourishing.
432
Registration Act 2002 (2007) 27 Legal Studies 236-260 253; Miceli TJ, Sirmans CF & Turnbull GK Title
Assurance and Incentives for Efficient Land Use (1998) 6 European Journal of Law and Economics 305-323
310.
433
434
of Urban Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260 253; Radin MJ
Property and Personhood (1982) 34 Stanford Law Review 957-1015 974; Radin MJ Time, Possession, and
Alienation (1986) 64 Washington University Law Quarterly 739-758 741, 748-750. To the same effect is
het Verjaringsrecht (2007) 39 Rechtskundig Weekblad 1582-1597 1585. For an economic argument along these
lines, see Netter JM, Hersch PL & Manson WD An Economic Analysis of Adverse Possession Statutes (1986)
6 International Review of Law and Economics 217-227 219.
435
Merrill TW (ed) Time, Property Rights, and the Common Law Round Table Discussion (1986) 64
Washington University Law Quarterly 793-865 814; Clarke A Use, Time, and Entitlement (2004) 57 Current
Legal Problems 239-275 274; Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015
986; Holmes OW The Path of the Law (1897) 10 Harvard Law Review 457-478 477.
436
Washington University Law Quarterly 793-865 814, quoted with approval by Clarke A Use, Time, and
Entitlement (2004) 57 Current Legal Problems 239-275 274. Here Ellickson refers to his findings made in
Rights (1986) 64 Washington University Law Quarterly 723-737, where he (at 727) borrowed the term
demoralization costs from Michelman FI Property, Utility, and Fairness: Comments on the Ethical
Foundations of Just Compensation Law (1967) 80 Harvard Law Review 1165-1258 1214. To the same effect
213
Merrill emphasises that the reliance interest of third parties as developed by Singer must
also be protected in this context, especially in a negative registration system.437
Against this background the English Law Commissions assumption that squatters are mostly
blameworthy is indeed an oversimplification. The same goes for the Law Commissions
assumption that owners are mostly blameless and, thus, deserve better protection. As
mentioned, some academics criticise this argument because the Law Commission did not
distinguish between owners who cannot and those who do not look after their property.438
Cobb and Fox argue that owners have an obligation to look after their property, based on the
landowners duty of stewardship over property.439 In this setting one can say that a
landowner who does not adequately fulfil the duty of stewardship [has] a morally weaker
claim to that property compared to [a] squatter who occupies it as a home.440 As indicated
are Singer JW Introduction to Property (2nd ed 2005) 159-161; Stake JE The Uneasy Case for Adverse
Possession (2001) 89 Georgetown Law Journal 2419-2474 2040; Singer JW Entitlement The Paradoxes of
Property (2000) 45-46; Singer JW The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751
666-668 footnote 174; Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 974;
Radin MJ Time, Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 741,
748-750; Holmes OW The Path of the Law (1897) 10 Harvard Law Review 457-478 477. This approach by
Ellickson is analogous to the theory advanced in Stake JE The Uneasy Case for Adverse Possession (2001) 89
Georgetown Law Journal 2419-2474 2469, which entails that human beings become attached to property
especially land through evolutionary biology.
437
Washington University Law Quarterly 793-865 813, referred to with approval by Clarke A Use, Time, and
Entitlement (2004) 57 Current Legal Problems 239-275 275. See also Singer JW Introduction to Property (2nd
ed 2005) 159-161; Posner RA Economic Analysis of Law (6th ed 2003) 78; Singer JW Entitlement The
Paradoxes of Property (2000) 45-46; Singer JW The Reliance Interest in Property (1988) 40 Stanford Law
Review 611-751 666-668 footnote 174; Ellickson RC Adverse Possession and Perpetuities Law: Two Dents in
the Libertarian Model of Property Rights (1986) 64 Washington University Law Quarterly 723-737 726, 730-
731; Merrill TW Property Rules, Liability Rules, and Adverse Possession (1985) 79 Northwestern University
Law Review 1122-1154 1131-1132; Rose CM Possession as the Origin of Property (1985) 52 University of
Chicago Law Review 73-88 79-80. However, Miceli TJ Property in Backhaus JG (ed) The Elgar Companion
to Law and Economics (2nd ed 2005) 246-260 255 warns that modern land records are ordinarily easily
accessible to would-be buyers. To the same effect are Netter JM, Hersch PL & Manson WD An Economic
Analysis of Adverse Possession Statutes (1986) 6 International Review of Law and Economics 217-227 219,
where the authors state that this justification by Merrill carried more weight in an era when record keeping was
less efficient. Yet, the correctness of the register is not guaranteed in a jurisdiction with a negative registration
system, which affords strength to Merrills argument.
438
439
Registration Act 2002 (2007) 27 Legal Studies 236-260 253-256 and sources cited. See also Auchmuty R Not
Just a Good Childrens Story: A Tribute to Adverse Possession 2004 Conveyancer 293-307 307; Rose CM
Possession as the Origin of Property (1985) 52 University of Chicago Law Review 73-88 79.
440
Registration Act 2002 (2007) 27 Legal Studies 236-260 254. See further Fox L Conceptualising Home:
Theories, Law and Policies (2007) 300-303; Auchmuty R Not Just a Good Childrens Story: A Tribute to
Adverse Possession 2004 Conveyancer 293-307 307.
214
earlier, this approach is analogous to Alexanders social-obligation norm.441 Nonetheless, the
reforms affected by the LRA make it unnecessary for owners to protect their land against
squatters, since registered land can no longer be acquired through the mere passage of
time.442 However, certain utilitarian and economic considerations do provide support for such
a duty of stewardship. For instance, owners need not develop or even occupy their land to
prevent prescription from running; all that is required of them is to periodically assert their
right to exclude others from their property.443 Furthermore, if such an obligation is placed on
the owner it will be easier to locate him for purposes of purchasing the land, which will
increase overall utility and efficiency.444 In this sense adverse possession encourages
productive land use, ensures the marketability of land, protects the reliance interests of parties
and lowers transaction costs.445 This leads us to the second trend for justifying prescription in
this section, namely law and economics theory.
Law and economics theory views man as a rational maximiser of his ends in life, which
ends are referred to as a persons satisfactions or self-interest.446 To avoid confusion with
441
This analogy is addressed in section 4.4.3 above.
442
Registration Act 2002 (2007) 27 Legal Studies 236-260 256. See also Auchmuty R Not Just a Good
Childrens Story: A Tribute to Adverse Possession 2004 Conveyancer 293-307 307.
443
Law Review 1122-1154 1130-1131; Fennell LA Efficient Trespass: The Case for Bad Faith Adverse
Possession (2006) 100 Northwestern University Law Review 1037-1096 1077; Rose CM Possession as the
Origin of Property (1985) 52 University of Chicago Law Review 73-88 79. For an argument to the contrary, see
2437.
444
Law Review 1122-1154 1130.
445
Law Review 1122-1154 1129-1131; Epstein RA Past and Future: The Temporal Dimension in the Law of
Property (1986) 64 Washington University Law Quarterly 667-722 678; Goymour A The Acquisition of
Rights in Property by the Effluxion of Time in Cooke E (ed) Modern Studies in Property Law 4 (2007) 169-
196 192; Dixon M The Reform of Property Law and the Land Registration Act 2002: A Risk Assessment
2003 Conveyancer 136-156 151-152; Baker M, Miceli T, Sirmans CF & Turnbull GK Property Rights by
Squatting: Land Ownership Risk and Adverse Possession Statutes (2001) 77 Land Economics 360-370 360;
Singer JW The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751 666-668; Netter JM,
Hersch PL & Manson WD An Economic Analysis of Adverse Possession Statutes (1986) 6 International
Review of Law and Economics 217-227 219. However, Stake JE The Uneasy Case for Adverse Possession
(2001) 89 Georgetown Law Journal 2419-2474 2433 is not convinced that adverse possession reduces
transaction costs, as according to him the additional monitoring stimulated by the statute of limitations is a
waste of resources. See further Fennell LA Efficient Trespass: The Case for Bad Faith Adverse Possession
(2006) 100 Northwestern University Law Review 1037-1096 1062; Singer JW Introduction to Property (2nd ed
2005) 159, who argue that the requirements of adverse possession lead to increased litigation, since they are
open textured and open to judicial interpretation.
446
Posner RA Economic Analysis of Law (6th ed 2003) 3.
215
the notion of selfishness, economists use the word utility instead of self-interest.447 Posner
sketches the background of law and economics theory as follows:
The concept of man as a rational maximizer of his self-interest implies that people respond to
incentive that if a persons surroundings change in such a way that he could increase his
satisfactions by altering his behavior, he will do so.448
Law and economics theory regards rationality as an objective rather than a subjective
standard, which means that rationality is seen as the ability to use reasoning for purposes of
everyday life.449 However, one of the problems with law and economics theory is that it is
sometimes seen as ignoring justice, since the aim of it is to structure law in such a way as
to maximise economic efficiency and to prevent conduct that wastes resources.450 Stated
differently, the main aim of law and economics theory is to structure legal rules to promote
efficiency (or utility) through awarding resources to those who value them the most and will
thus use them optimally.451 Interestingly, even law and economics theory thinks that it is
immoral to allow limited resources to be wasted.452 Consequently, the protection of private
property rights is imperative to law and economics theory, since the legal protection of such
rights promotes the efficient use of resources.453 Nevertheless, law and economics theory
447
Posner RA Economic Analysis of Law (6th ed 2003) 3. This assumption that man is a rational utility
maximiser again illustrates the connection between utilitarianism and law and economics theory. Furthermore,
this assumption regards man as a rational utility maximiser in all areas of life, not just economic affairs: See
3-4. Utility in this sense encompasses, inter alia, happiness, pleasure and satisfactions: See 3-5.
448
449
450
745-820 750; Miceli TJ Property in Backhaus JG (ed) The Elgar Companion to Law and Economics (2nd ed
2005) 246-260 246; Posner RA Economic Analysis of Law (6th ed 2003) 26-28; Baker M, Miceli T, Sirmans CF
& Turnbull GK Property Rights by Squatting: Land Ownership Risk and Adverse Possession Statutes (2001)
77 Land Economics 360-370 360; Miceli TJ & Sirmans CF The Economics of Land Transfer and Title
Insurance (1995) 10 Journal of Real Estate Finance and Economics 81-88 81. Yet, Posner at 27-28 warns that
one should be aware of the different contents of efficiency, as efficiency just like utilitarianism can also be
(ab)used to justify notions like discrimination on the basis of race, torture for purposes of national security or
even blackmail.
451
260 246; Posner RA Economic Analysis of Law (6th ed 2003) 27-28; Baker M, Miceli T, Sirmans CF & Turnbull
GK Property Rights by Squatting: Land Ownership Risk and Adverse Possession Statutes (2001) 77 Land
Economics 360-370 360; Miceli TJ & Sirmans CF The Economics of Land Transfer and Title Insurance
(1995) 10 Journal of Real Estate Finance and Economics 81-88 81.
452
Posner RA Economic Analysis of Law (6th ed 2003) 27; Green K Citizens and Squatters: Under the Surfaces
of Land Law in Bright S & Dewar JK (eds) Land Law: Themes and Perspectives (1998) 229-256 241. To the
contrary are Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-
2474 2433; Sprankling JG An Environmental Critique of Adverse Possession (1994) 79 Cornell Law Review
816-884 821, 874-875.
453
Posner RA Economic Analysis of Law (6th ed 2003) 31-32; Baker M, Miceli T, Sirmans CF & Turnbull GK
Property Rights by Squatting: Land Ownership Risk and Adverse Possession Statutes (2001) 77 Land
Economics 360-370 369-370; Miceli TJ & Sirmans CF The Economics of Land Transfer and Title Insurance
(1995) 10 Journal of Real Estate Finance and Economics 81-88 81. See also Ellickson RC Adverse Possession
and Perpetuities Law: Two Dents in the Libertarian Model of Property Rights (1986) 64 Washington University
216
acknowledges that absolute property rights are impossible in the framework of an efficient
economic setting.454 This is where law and economics theory by aiming to promote
efficiency through the (re)allocation of resources can be used to justify prescription.
There is a fundamental distinction in law and economics theory between scenarios involving
low transaction costs and those with high transaction costs. In settings where transaction costs
are low, the Coase theorem dictates that a present owners property right must be made
absolute, which then obliges a party who attaches a higher value to the owners property
to negotiate with that owner for voluntarily exchange to occur.455 On the other hand, the
law must provide ways through which resources can be shifted to the more valuable user in
situations where transaction costs are high, since the market is then due to these
circumstances unable to realise this function.456 It follows that one can justify prescription
under this theory if it can be illustrated that prescription effectively reduces transaction costs
in situations that would otherwise prevent voluntary exchange due to high transaction
costs.457
Law Quarterly 723-737 737, where he agrees with Posner that the purpose of the law is to maximise overall
wealth.
454
260 246; Posner RA Economic Analysis of Law (6th ed 2003) 49-54. See also generally Epstein RA Past and
Future: The Temporal Dimension in the Law of Property (1986) 64 Washington University Law Quarterly 667-
722.
455
The Coase theorem was developed by Coase R The Problem of Social Cost (1960) 3 Journal of Law &
Economics 1-44 and is founded on the assumption that efficiency is maximised through voluntary exchange
between parties in settings where transaction costs are low. See also Miceli TJ Property in Backhaus JG (ed)
The Elgar Companion to Law and Economics (2nd ed 2005) 246-260 246-249; Posner RA Economic Analysis of
Law (6th ed 2003) 55; Miceli TJ & Sirmans CF The Economics of Land Transfer and Title Insurance (1995)
10 Journal of Real Estate Finance and Economics 81-88 82; Ellickson RC Adverse Possession and
Law Quarterly 723-737 724.
456
Posner RA Economic Analysis of Law (6th ed 2003) 55; Miceli TJ Property in Backhaus JG (ed) The Elgar
Companion to Law and Economics (2nd ed 2005) 246-260 246-248, 254-255; Fennell LA Efficient Trespass:
The Case for Bad Faith Adverse Possession (2006) 100 Northwestern University Law Review 1037-1096
1040; Sagaert V De Verkrijgende Verjaring van Onroerende Goederen Herbezocht. Een Aanzet tot het Debat
over het Verjaringsrecht (2007) 39 Rechtskundig Weekblad 1582-1597 1585; Dixon M The Reform of
Property Law and the Land Registration Act 2002: A Risk Assessment 2003 Conveyancer 136-156 151-152;
Rights (1986) 64 Washington University Law Quarterly 723-737 724-725; Merrill TW Property Rules,
1131. The situation where transaction costs are so high that they prevent voluntary exchange between parties is
known as market failure, which phrase was coined by Buchanan J & Stubblebine W Externality (1962) 29
Economica 371-384.
457
See also Fennell LA Efficient Trespass: The Case for Bad Faith Adverse Possession (2006) 100
Northwestern University Law Review 1037-1096 1040, who is of the opinion that this is the niche goal of
adverse possession.
217
This chapter analyses the economic effects of prescription in four categories to determine
whether it is able to sufficiently reduce transaction cost, namely (i) owners, (ii) possessors,
(iii) third parties and (iv) litigation. Concerning the costs of the owner, it is imperative to
have regard to what Michelman describes as demoralization costs.458 According to this
concept, the more wrongful an owner perceives the loss of property through legal
mechanisms such as prescription, the more severely such an owner is demoralised.459 Owners
unaware of the risk of losing property through prescription will mostly bear no uncertainty or
monitoring costs during the prescription period and can experience severe demoralisation
when ownership is lost to an adverse possessor.460 The following graph illustrates the
relationship between the costs of the owner in relation to the length of the prescription
period:461
According to Figure 1, the costs suffered by the owner increase with the shortening of the
prescription period. The owners uncertainty costs increase as the period becomes shorter,
which in turn leads to increased monitoring costs, together with causing the
demoralisation costs to be higher on the side of an owner not expecting to lose property
through prescription.462 This also contributes to the dangerous possibility that an owner can
458
Michelman FI Property, Utility, and Fairness: Comments on the Ethical Foundations of Just
Compensation Law (1967) 80 Harvard Law Review 1165-1258 1214.
459
Compensation Law (1967) 80 Harvard Law Review 1165-1258 1214. Ellickson RC Adverse Possession and
Law Quarterly 723-737 728 first made the connection by using demoralization costs in the context of adverse
possession. See similarly Merrill TW Property Rules, Liability Rules, and Adverse Possession (1985) 79
Northwestern University Law Review 1122-1154 1129-1130; Radin MJ Property and Personhood (1982) 34
Stanford Law Review 957-1015 1003.
460
Rights (1986) 64 Washington University Law Quarterly 723-737 728.
461
Based on Ellickson RC Adverse Possession and Perpetuities Law: Two Dents in the Libertarian Model of
Property Rights (1986) 64 Washington University Law Quarterly 723-737 728.
462
Rights (1986) 64 Washington University Law Quarterly 723-737 727-728; Baker M, Miceli T, Sirmans CF &
218
lose ownership by accident or through negligent inattention.463 On the flipside, the longer the
prescription period, the more secure ownership will be, since the owner then has more time to
discover a squatter possessing his land.464 In this context the costs of monitoring the land
decrease, along with the negative effects demoralisation can potentially have.465 This reduces
the necessity for the owner to police his property, but it also reduces the security of
ownership by increasing the likelihood that an adverse possessor may have taken possession
of the owners land.466 Accordingly, one can argue that the longer the prescription period, the
more likely it is that the owner has abandoned the land or that the register was incorrect from
the start, which increases the intensity of the Holmes effect.467 To address this issue, longer
Turnbull GK Property Rights by Squatting: Land Ownership Risk and Adverse Possession Statutes (2001) 77
Land Economics 360-370 361, 364-365.
463
Posner RA Economic Analysis of Law (6th ed 2003) 78-79; Ellickson RC Adverse Possession and
Law Quarterly 723-737 727-728.
464
Posner RA Economic Analysis of Law (6th ed 2003) 80; Singer JW The Reliance Interest in Property
(1988) 40 Stanford Law Review 611-751 667; Ellickson RC Adverse Possession and Perpetuities Law: Two
Dents in the Libertarian Model of Property Rights (1986) 64 Washington University Law Quarterly 723-737
727-728. See also Bouckaert B & Depoorter BWF Adverse Possession: Title Systems in Bouckaert B & De
Geest G (eds) Encyclopedia of Law and Economics (1999) http://encyclo.findlaw.com/ (accessed 7 October
2010) 1200: 18-31 22. See further Miceli TJ & Sirmans CF An Economic Theory of Adverse Possession
(1995) 15 International Review of Law and Economics 161-173 167, who are of the opinion that the difficulty
of the requirements of adverse possession, namely that possession must be actual, open, notorious, and
exclusive, contribute to this prediction.
465
University Law Review 1037-1096 1057, 1087; Singer JW Introduction to Property (2nd ed 2005) 163; Stake JE
The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2453; Baker M,
Miceli T, Sirmans CF & Turnbull GK Property Rights by Squatting: Land Ownership Risk and Adverse
Possession Statutes (2001) 77 Land Economics 360-370 361, 364-365; Bouckaert B & Depoorter BWF
(1999) http://encyclo.findlaw.com/ (accessed 7 October 2010) 1200: 18-31 22-23; Miceli TJ, Sirmans CF &
Turnbull GK Title Assurance and Incentives for Efficient Land Use (1998) 6 European Journal of Law and
Economics 305-323 311; Miceli TJ & Sirmans CF An Economic Theory of Adverse Possession (1995) 15
International Review of Law and Economics 161-173 168; Singer JW The Reliance Interest in Property
University Law Quarterly 667-722 692; Netter JM, Hersch PL & Manson WD An Economic Analysis of
Adverse Possession Statutes (1986) 6 International Review of Law and Economics 217-227 217, 222. Epstein
strengthens this argument and reasons at 692 that effective avoidance measures are available to owners at low
costs, which will even further reduce monitoring costs. Nonetheless, Stake JE The Uneasy Case for Adverse
Possession (2001) 89 Georgetown Law Journal 2419-2474 2433 thinks that the costs of monitoring ones
property exceed the gains that are achieved by adverse possession.
466
Posner RA Economic Analysis of Law (6th ed 2003) 80; Stake JE The Uneasy Case for Adverse Possession
(2001) 89 Georgetown Law Journal 2419-2474 2453; Ellickson RC Adverse Possession and Perpetuities Law:
737 727-730; Epstein RA Past and Future: The Temporal Dimension in the Law of Property (1986) 64
Washington University Law Quarterly 667-722 692.
467
Posner RA Economic Analysis of Law (6th ed 2003) 78-79; Singer JW Introduction to Property (2nd ed 2005)
163-165; Clarke A Use, Time, and Entitlement (2004) 57 Current Legal Problems 239-275 272; Stake JE
The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2040; Singer JW
Entitlement The Paradoxes of Property (2000) 46; Miceli TJ, Sirmans CF & Turnbull GK Title Assurance
and Incentives for Efficient Land Use (1998) 6 European Journal of Law and Economics 305-323 311; Singer
219
prescription periods are required in scenarios where an owners monitoring costs are high.468
Against this background it seems that the overall costs an owner suffers will be even less in a
system with a 30-year period for both good faith and bad faith possessors, such as South
African law, as opposed to a regime with shorter periods.469
One of the economic grounds for justifying adverse possession is provided by Holmes, who
states that property possessed for a long time takes root in your being and cannot be torn
away without [such person] resenting the act.470 According to Posner, the deprivation of
property under these circumstances would be wrenching,471 which feeling he describes as
the Holmes effect.472 Bentham is of the same mind as Holmes in this regard:
JW The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751 666-668 footnote 179;
Rights (1986) 64 Washington University Law Quarterly 723-737 727-730; Radin MJ Time, Possession, and
Alienation (1986) 64 Washington University Law Quarterly 739-758 748-750; Goodman MJ Adverse
Possession of Land Morality and Motive (1970) 33 Modern Law Review 281-288 288; Holmes OW The
Path of the Law (1897) 10 Harvard Law Review 457-478 477. The Holmes effect is explained in the next
paragraph.
468
Posner RA Economic Analysis of Law (6th ed 2003) 80; Ellickson RC Adverse Possession and Perpetuities
Law: Two Dents in the Libertarian Model of Property Rights (1986) 64 Washington University Law Quarterly
723-737 728; Fennell LA Efficient Trespass: The Case for Bad Faith Adverse Possession (2006) 100
Northwestern University Law Review 1037-1096 1087; Stake JE The Uneasy Case for Adverse Possession
(2001) 89 Georgetown Law Journal 2419-2474 2453; Baker M, Miceli T, Sirmans CF & Turnbull GK
Economics 360-370 361; Miceli TJ, Sirmans CF & Turnbull GK Title Assurance and Incentives for Efficient
Land Use (1998) 6 European Journal of Law and Economics 305-323 311; Miceli TJ & Sirmans CF An
Economic Theory of Adverse Possession (1995) 15 International Review of Law and Economics 161-173 168;
University Law Quarterly 667-722 692; Netter JM, Hersch PL & Manson WD An Economic Analysis of
Adverse Possession Statutes (1986) 6 International Review of Law and Economics 217-227 217, 222.
469
I extrapolate this from Posner RA Economic Analysis of Law (6th ed 2003) 78-79; Ellickson RC Adverse
Possession and Perpetuities Law: Two Dents in the Libertarian Model of Property Rights (1986) 64
Washington University Law Quarterly 723-737 727-728; Holmes OW The Path of the Law (1897) 10
Harvard Law Review 457-478 477.
470
Holmes OW The Path of the Law (1897) 10 Harvard Law Review 457-478 477. Although I use Holmess
theory to justify prescription in terms of Radins personality theory in section 4.4.3 above, Posner identifies this
theory as able to justify prescription in terms of law and economics theory: See Posner RA Economic Analysis
of Law (6th ed 2003) 77-78.
471
Posner RA Economic Analysis of Law (6th ed 2003) 77-78, who relies on Holmes OW The Path of the Law
(1897) 10 Harvard Law Review 457-478 477. See similarly Goymour A The Acquisition of Rights in Property
by the Effluxion of Time in Cooke E (ed) Modern Studies in Property Law 4 (2007) 169-196 171; Cobb N &
Fox L Living Outside the System? The (Im)morality of Urban Squatting after the Land Registration Act 2002
(2007) 27 Legal Studies 236-260 240; Miceli TJ Property in Backhaus JG (ed) The Elgar Companion to Law
and Economics (2nd ed 2005) 246-260 255; Clarke A Use, Time, and Entitlement (2004) 57 Current Legal
Problems 239-275 251, 274; Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law
Journal 2419-2474 2420; Miceli TJ, Sirmans CF & Turnbull GK Title Assurance and Incentives for Efficient
Land Use (1998) 6 European Journal of Law and Economics 305-323 310; Miceli TJ & Sirmans CF The
Economics of Land Transfer and Title Insurance (1995) 10 Journal of Real Estate Finance and Economics 81-
88 83; Singer JW The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751 666-668;
Rights (1986) 64 Washington University Law Quarterly 723-737 728-729; Merrill TW Property Rules,
Liability Rules, and Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1132;
220
Everything about [my property] represents to my eye that part of myself which I have put into
it those cares, that industry, that economy which denied itself present pleasures to make
provision for the future. Thus our property becomes part of our being, and cannot be torn from
us without rending us to the quick.473
This approach by Bentham is related to Radins personality theory, which entails that objects
possessed as personal property becomes constitutive of ones personhood.474 If this analogy
holds true, it entails that an absent owner will become detached from property over time,
resulting in a situation where the returning of that property to the owner will only provide
moderate pleasure.475 Posner describes this as the diminishing marginal utility of income,
since the squatter will experience the owners repossessing of the land as a diminution in his
wealth, while the owner will experience the restitution of the land as an increase in his
wealth.476 The combined utility of these parties should they be of the same wealth will be
greater if the law awards the land to the possessor, since he will be putting the land to higher-
valued use.477 According to Stake, the combined utility will be even greater if the possessor is
less well-off than the owner at the time before prescription is completed.478
Property Law Journal 112-119 115. Holmes OW The Path of the Law (1897) 10 Harvard Law Review 457-
478 477 justifies this approach by stating that [t]he law can ask not better justification than the deepest instincts
of man. This is analogous to the theory advanced by Stake at 2469 that human beings become attached to
property, especially land, through evolutionary biology. For an analogy of this pain to demoralization costs
of Michelman FI Property, Utility, and Fairness: Comments on the Ethical Foundations of Just Compensation
Law (1967) 80 Harvard Law Review 1165-1258, see Ellickson RC Adverse Possession and Perpetuities Law:
737 727.
472
This phrase was coined by Posner RA Economic Analysis of Law (6th ed 2003) 79.
473
Bentham J The Theory of Legislation (1789, Baxi U ed 1975) 70-71 para 2.
474
Radins personality theory in the context of prescription is discussed in section 4.4.3 above.
475
Posner RA Economic Analysis of Law (6th ed 2003) 78; Clarke A Use, Time, and Entitlement (2004) 57
Current Legal Problems 239-275 251; Stake JE The Uneasy Case for Adverse Possession (2001) 89
Georgetown Law Journal 2419-2474 2420; Singer JW The Reliance Interest in Property (1988) 40 Stanford
Law Review 611-751 666-668; Ellickson RC Adverse Possession and Perpetuities Law: Two Dents in the
Libertarian Model of Property Rights (1986) 64 Washington University Law Quarterly 723-737 727-729;
Property Law Journal 112-119 115; Holmes OW The Path of the Law (1897) 10 Harvard Law Review 457-
478 477. Such a conclusion is in line with social-obligation norm developed by Alexander GS The Social-
Obligation Norm in American Property Law (2009) 94 Cornell Law Review 745-820, which is addressed in
476
477
Posner RA Economic Analysis of Law (6th ed 2003) 78. To the same effect are Fennell LA Efficient
Trespass: The Case for Bad Faith Adverse Possession (2006) 100 Northwestern University Law Review 1037-
1096 1080-1081; Sagaert V De Verkrijgende Verjaring van Onroerende Goederen Herbezocht. Een Aanzet tot
het Debat over het Verjaringsrecht (2007) 39 Rechtskundig Weekblad 1582-1597 1585; Dixon M The Reform
of Property Law and the Land Registration Act 2002: A Risk Assessment 2003 Conveyancer 136-156 151-152;
University Law Quarterly 667-722 674-682; Ellickson RC Adverse Possession and Perpetuities Law: Two
725-734. According to Green K Citizens and Squatters: Under the Surfaces of Land Law in Bright S & Dewar
221
Against this background it is possible to determine the economic impact of prescription on
the possessor. The following graph demonstrates how the squatters costs can fluctuate with
the length of the prescription period:479
In Figure 2, preying represents the legally informed squatters attempts to obtain evidence
to succeed with a prescription claim; uncertainty costs involve the levels of anxiety the
informed squatter faces; while demoralisation costs represent the suffering such a squatter
experiences if he is evicted before the prescription period expires.480 This graph illustrates
that the costs the squatter suffers are lowest in the time slot between five and 10 years and
JK (eds) Land Law: Themes and Perspectives (1998) 229-256 241, the theft of the owners property through
adverse possession is justified if the owner is a waster of the natural national resource [which is land]. For an
argument to the contrary of the economic efficiency justification, see Stake JE The Uneasy Case for Adverse
Possession (2001) 89 Georgetown Law Journal 2419-2474 2433; Sprankling JG An Environmental Critique
of Adverse Possession (1994) 79 Cornell Law Review 816-884 821, 874-875. Singer JW The Reliance
Interest in Property (1988) 40 Stanford Law Review 611-751 668 footnote 181 also criticises Posner in this
regard by pointing out that situations where both the adverse possessor and the owner are of the same wealth
would be rare, which undermines this argument for justifying adverse possession on economic grounds. Singer
thinks that the adverse possessors reliance interest constitutes a more powerful justification, an approach
confirmed in Singer JW Introduction to Property (2nd ed 2005) 162. The reliance interest of the possessor is
addressed in section 4.4.3 above. For further criticism on Posners argument, see Singer JW Introduction to
Property (2nd ed 2005) 161-162.
478
2457. Singer JW The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751 668 footnote 181
can also be read to this effect. However, Stake at 2457 thinks that this justification provided by Posner does not
sufficiently take into account the situations concerning boundary disputes, where the neighbouring owners will
normally be of equal wealth.
479
Property Rights (1986) 64 Washington University Law Quarterly 723-737 728-729.
480
Rights (1986) 64 Washington University Law Quarterly 723-737 728-730; Miceli TJ, Sirmans CF & Turnbull
GK Title Assurance and Incentives for Efficient Land Use (1998) 6 European Journal of Law and Economics
305-323 310; Miceli TJ & Sirmans CF The Economics of Land Transfer and Title Insurance (1995) 10
Journal of Real Estate Finance and Economics 81-88 83. See also Singer JW The Reliance Interest in
Property (1988) 40 Stanford Law Review 611-751 666, where he states that [i]f the adverse possessor were to
be ousted from the property, she would experience a loss ... [since] [t]he adverse possessors interests grow
stronger over time.
222
that these costs, including the squatters demoralisation costs, increase with the lengthening
of the prescription period.481 This conforms to Radins personality theory that the squatter
becomes bound up with property over time, while the owner probably begins to regard it as
fungible property the longer he is out of possession.482
Another theory that can be used to justify adverse possession in the law and economics
context alongside those of Holmes and Radin is the fact that adverse possession protects
the reliance interest483 or settled expectations of possessors.484 Although it is important that
the protection of a possessors settled expectations should not result in overreliance, this
problem is countered by the possibility that the owner will reclaim the land before the
481
Rights (1986) 64 Washington University Law Quarterly 723-737 728-730; Singer JW Entitlement The
Paradoxes of Property (2000) 45-46; Miceli TJ & Sirmans CF The Economics of Land Transfer and Title
Insurance (1995) 10 Journal of Real Estate Finance and Economics 81-88 83; Singer JW The Reliance
Interest in Property (1988) 40 Stanford Law Review 611-751 666-668; Netter JM, Hersch PL & Manson WD
An Economic Analysis of Adverse Possession Statutes (1986) 6 International Review of Law and Economics
217-227 222. To the same effect are Baker M, Miceli T, Sirmans CF & Turnbull GK Property Rights by
Squatting: Land Ownership Risk and Adverse Possession Statutes (2001) 77 Land Economics 360-370 364.
482
Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 741, 748-750; Singer JW
Introduction to Property (2nd ed 2005) 159-161; Singer JW Entitlement The Paradoxes of Property (2000) 45-
46; Miceli TJ, Sirmans CF & Turnbull GK Title Assurance and Incentives for Efficient Land Use (1998) 6
European Journal of Law and Economics 305-323 310-311; Miceli TJ & Sirmans CF The Economics of Land
Transfer and Title Insurance (1995) 10 Journal of Real Estate Finance and Economics 81-88 83-84; Singer JW
The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751 666-668 footnote 174; Merrill TW
Property Rules, Liability Rules, and Adverse Possession (1985) 79 Northwestern University Law Review
1122-1154 1131-1132; Holmes OW The Path of the Law (1897) 10 Harvard Law Review 457-478 477. This
prediction also conforms to the social-obligation norm developed by Alexander GS The Social-Obligation
Norm in American Property Law (2009) 94 Cornell Law Review 745-820, which is addressed in section 4.4.3
above. See also Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-
2474 2463-2471, where he acknowledges that the theory of loss aversion can be used to help justify adverse
possession regarding land. In this regard Singer JW Introduction to Property (2nd ed 2005) 159-160 thinks that
because an adverse possessor may come to feel entitled to land in his possession, litigation concerning
ownership will continue despite the abolition of adverse possession. In this sense he argues that adverse
possessors will invent new theories to justify recognizing these rights, and the courts are likely to respond to
these demands.
483
I address this theory under the discussion of Radins personality theory in section 4.4.3 above.
484
Singer JW Introduction to Property (2nd ed 2005) 160; Posner RA Economic Analysis of Law (6th ed 2003)
78 footnote 3; Singer JW Entitlement The Paradoxes of Property (2000) 45-46; Miceli TJ & Sirmans CF An
Singer JW The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751 664, 666-668; Merrill
1122-1154 1131-1132; Rose CM Possession as the Origin of Property (1985) 52 University of Chicago Law
Review 73-88 79-80. To the same effect are Miceli TJ Property in Backhaus JG (ed) The Elgar Companion to
Law and Economics (2nd ed 2005) 246-260 254-255; Sprankling JG An Environmental Critique of Adverse
Possession (1994) 79 Cornell Law Review 816-884 819-820. However, Miceli TJ & Sirmans CF An
Economic Theory of Adverse Possession (1995) 15 International Review of Law and Economics 161-173 161-
162 say that adverse possession only protects the reliance interest of inadvertent squatters. Nonetheless, this
approach does not take into account the possibility that the mala fide possessor is not always morally
reprehensible, as discussed in section 4.5 below.
223
expiration of the limitation period, which then eliminates the squatters reliance.485 These
factors provide powerful justifications for shifting the property to the higher-valuing squatter
through prescription or adverse possession.
It is worth emphasising that Figure 2 combines both good faith and bad faith possessors.
Ellickson opines that the graphs for good and bad faith squatters differ because bad faith
possessors do not suffer the same demoralisation costs as good faith possessors and that only
bad faith possessors are because of their knowledge capable of incurring preying costs.486
I have chosen not to distinguish between these two types of possessors, since this chapter
argues that the distinction between them is based on incorrect reasoning and is thus
incoherent.487 The best prescription model seems to be the one that does not distinguish
between good or bad faith possessors, as found in South African law.488 Nonetheless, Posner
believes that the Holmes effect implies that the adverse possessor possesses in good
faith.489 Interestingly, certain studies predict that good faith squatters are likely to fare better
in US adverse possession cases than their bad faith counterparts, despite the irrelevance of a
squatters subjective mindset in black letter US adverse possession law.490 I doubt whether
this favouring of good faith claims is a preferable approach, since it is clear that by simply
485
Posner RA Economic Analysis of Law (6th ed 2003) 78 footnote 3.
486
487
University Law Review 1037-1096; Cobb N & Fox L Living Outside the System? The (Im)morality of Urban
Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260; Pealver EM & Katyal SK
Property Outlaws (2007) 155 University of Pennsylvania Law Review 1095-1186. See the discussion of the
anomaly of the bad faith possessor in section 4.5 below.
488
is of the same mind. Furthermore, litigation costs are reduced if one does not take into account the subjective
intent of the adverse possession: See Singer JW Introduction to Property (2nd ed 2005) 162; Bouckaert B &
Depoorter BWF Adverse Possession: Title Systems in Bouckaert B & De Geest G (eds) Encyclopedia of Law
and Economics (1999) http://encyclo.findlaw.com/ (accessed 7 October 2010) 1200: 18-31 25.
489
490
See especially Helmholz RH Adverse Possession and Subjective Intent (1984) 61 Washington University
Law Quarterly 331-358; Helmholz RH More on Subjective Intent: A Response to Professor Cunningham
(1986) 64 Washington University Law Quarterly 65-106. Helmholz analysed 850 US appellate opinions
concerning adverse possession decided since 1966 and concluded that not only did many decisions favour good
faith adverse possessors above their bad faith counterparts, the courts in some cases even re-interpreted the
possession requirement to prevent bad faith claims from succeeding. See Helmholz RH Adverse Possession
and Subjective Intent (1984) 61 Washington University Law Quarterly 331-358, especially 341-349.
Nonetheless, the subjective intent of the adverse possessor is considered irrelevant in black letter US adverse
possession law, see Dukeminier J & Krier JE et al Property (6th ed 2006) 126-127; Helmholz RH Adverse
Possession and Subjective Intent (1984) 61 Washington University Law Quarterly 331-358 331-332; Merrill
1122-1154 1123-1125.
224
classifying mala fide possession as immoral amounts to an oversimplification491 because of
the fact that bad faith adverse possession does not always denote squatters who are morally
reprehensible.492
When considering the economic impact of prescription, it is important not to lose sight of the
effects it can have on third parties.493 In this sense prescription lowers costs incurred through
investigating the register (search costs), since parties can due to the corrective function of
prescription disregard errors in the register that predate the prescription period.494 However,
because of this corrective function the register will not always show who the actual owner is,
since registration is not a prerequisite for acquiring ownership through prescription. 495 To
ascertain the identity of the actual owner under these circumstances requires an inspection of
the land to verify who occupies it (inspection costs). These two costs must then be weighed
up to determine what the nett impact of prescription will be on third parties.496 According to
491
See generally Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after the
Land Registration Act 2002 (2007) 27 Legal Studies 236-260; Fennell LA Efficient Trespass: The Case for
Bad Faith Adverse Possession (2006) 100 Northwestern University Law Review 1037-1096; Pealver EM &
Katyal SK Property Outlaws (2007) 155 University of Pennsylvania Law Review 1095-1186.
492
Urban Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260 253. See also Pealver
EM & Katyal SK Property Outlaws (2007) 155 University of Pennsylvania Law Review 1095-1186 and the
discussion in section 4.5 below.
493
Posner RA Economic Analysis of Law (6th ed 2003) 78; Ellickson RC Adverse Possession and Perpetuities
723-737 726, 730-731; Rose CM Possession as the Origin of Property (1985) 52 University of Chicago Law
Review 73-88 79-80; Merrill TW Property Rules, Liability Rules, and Adverse Possession (1985) 79
Northwestern University Law Review 1122-1154 1131-1132. According to Ellickson at 726, there are four
interested parties in this regard, namely owners, possessors, transferees and the courts.
494
260 254-255; Cooter R & Ulen T Law and Economics (4th ed 2004) 155; Posner RA Economic Analysis of Law
(6th ed 2003) 78; Rose CM Possession as the Origin of Property (1985) 52 University of Chicago Law Review
73-88 79-82. Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-
2474 2441-2444 argues against having adverse possession in this context, since third parties are able to discover
the identity of an owner by investigating the land register, should acquisition of ownership by adverse
possession not be possible. However, this argument is founded on the assumption that the register will always
be correct, which is not the case in a negative registration system. This possibility of incorrectness can even
arise in a positive registration as pointed out by Clarke A Use, Time, and Entitlement (2004) 57 Current
Legal Problems 239-275 252-258 namely when adverse possessors choose never to lodge a claim out of fear
of failure, which can lead to developments off the register. According to Clarke (at 252-258), if there is no
way of affording de iure status to long-existing de facto situations, the same problems can arise as those that the
abolition of adverse possession was supposedly meant to overcome. Furthermore, Singer JW Introduction to
Property (2nd ed 2005) 159-160 believes that even if adverse possession should be abolished, adverse possessors
will invent new theories to justify recognizing these rights, and the courts are likely to respond to these
demands.
495
This is the position in South African law: See section 2.3.1 of chapter two above.
496
Rights (1986) 64 Washington University Law Quarterly 723-737 730-731; Posner RA Economic Analysis of
Law (6th ed 2003) 78; Janczyk JT An Economic Analysis of the Land Title Systems for Transferring Real
Property (1977) 6 Journal of Legal Studies 213-233 213. To the same effect are Singer JW Introduction to
225
Netter, Hersch and Manson, there is empirical support for the claim that prescription
eliminates mistakes in the land register after a certain period of time has elapsed, thereby
reducing information costs.497 They assume that a purchasers certainty is increased through
shortening the prescription period and, furthermore, that increased certainty is preferable
when land values are higher.498 The following graph illustrates how changes to the
prescription period can affect the administration costs of land transfers:499
Property (2nd ed 2005) 164-165; Rose CM Possession as the Origin of Property (1985) 52 University of
Chicago Law Review 73-88 79-82. However, Fennell LA Efficient Trespass: The Case for Bad Faith Adverse
Possession (2006) 100 Northwestern University Law Review 1037-1096 1062-1064 and Stake JE The Uneasy
Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2442-2443 mention the
possibility that adverse possession can cause further uncertainty in this regard, which will not be able to reduce
transaction costs.
497
Netter JM, Hersch PL & Manson WD An Economic Analysis of Adverse Possession Statutes (1986) 6
International Review of Law and Economics 217-227 219-220. See also Miceli TJ Property in Backhaus JG
(ed) The Elgar Companion to Law and Economics (2nd ed 2005) 246-260 254-255; Posner RA Economic
Analysis of Law (6th ed 2003) 78; Bouckaert B & Depoorter BWF Adverse Possession: Title Systems in
Bouckaert B & De Geest G (eds) Encyclopedia of Law and Economics (1999) http://encyclo.findlaw.com/
(accessed 7 October 2010) 1200: 18-31 20; Epstein RA Past and Future: The Temporal Dimension in the Law
of Property (1986) 64 Washington University Law Quarterly 667-722 674-680; Rose CM Possession as the
Origin of Property (1985) 52 University of Chicago Law Review 73-88 81-82; Merrill TW Property Rules,
Liability Rules, and Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1128.
498
International Review of Law and Economics 217-227 217, 119-222, 224. See also Baker M, Miceli T, Sirmans
CF & Turnbull GK Property Rights by Squatting: Land Ownership Risk and Adverse Possession Statutes
(2001) 77 Land Economics 360-370 365; Bouckaert B & Depoorter BWF Adverse Possession: Title Systems
in Bouckaert B & De Geest G (eds) Encyclopedia of Law and Economics (1999) http://encyclo.findlaw.com/
(accessed 7 October 2010) 1200: 18-31 22-23; Ellickson RC Adverse Possession and Perpetuities Law: Two
730-731; Epstein RA Past and Future: The Temporal Dimension in the Law of Property (1986) 64
Washington University Law Quarterly 667-722 674-680. To the contrary are Miceli TJ Property in Backhaus
JG (ed) The Elgar Companion to Law and Economics (2nd ed 2005) 246-260 255; Stake JE The Uneasy Case
for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2442-2443.
499
Property Rights (1986) 64 Washington University Law Quarterly 723-737 730. Ellickson at 730 states that
adverse possession is a mixed blessing for third parties. Stake JE The Uneasy Case for Adverse Possession
(2001) 89 Georgetown Law Journal 2419-2474 2442 is of the same mind as Ellickson in this regard.
226
In terms of Figure 3, prescription reduces costs through eliminating errors that can only be
found by investigating the register.500 Moreover, prescription entitles possessors to acquire
ownership in land without requiring registration.501 A transferee has three ways according
to Ellickson of dealing with unrecorded ownership, namely
i) to bear the risk (which increases uncertainty costs);

ii) to insure against it502 (which increases insurance costs); or
iii) to physically inspect the land to ascertain the identity of the possessor (which
increases inspection costs).503
Figure 3 predicts that the costs pertaining to inspection, uncertainty and searching the register
will be higher the shorter the prescription period. The costs are lower the longer the period,
though they even out around a five-year period, after which they start to climb steadily with
the lengthening of the prescription period.504 It follows that prescription is in the economic
interest of third parties, a fact captured by Epstein: As a matter of principle, what comes first
is best; as a matter of proof, however, what comes last is more reliable and certain.505 This
500
Posner RA Economic Analysis of Law (6th ed 2003) 78; Baker M, Miceli T, Sirmans CF & Turnbull GK
Economics 360-370 360; Bouckaert B & Depoorter BWF Adverse Possession: Title Systems in Bouckaert B
& De Geest G (eds) Encyclopedia of Law and Economics (1999) http://encyclo.findlaw.com/ (accessed 7
October 2010) 1200: 18-31 20; Ellickson RC Adverse Possession and Perpetuities Law: Two Dents in the
Libertarian Model of Property Rights (1986) 64 Washington University Law Quarterly 723-737 730; Epstein
RA Past and Future: The Temporal Dimension in the Law of Property (1986) 64 Washington University Law
Quarterly 667-722 674-680; Rose CM Possession as the Origin of Property (1985) 52 University of Chicago
Law Review 73-88 79-82; Merrill TW Property Rules, Liability Rules, and Adverse Possession (1985) 79
Northwestern University Law Review 1122-1154 1128. To the same effect is Singer JW Introduction to
Property (2nd ed 2005) 164-165. To the contrary are Miceli TJ Property in Backhaus JG (ed) The Elgar
Companion to Law and Economics (2nd ed 2005) 246-260 255; Stake JE The Uneasy Case for Adverse
Possession (2001) 89 Georgetown Law Journal 2419-2474 2441; Miceli TJ & Sirmans CF An Economic
Theory of Adverse Possession (1995) 15 International Review of Law and Economics 161-173 161, since they
think that modern-day land registers are able to solve these problems. Nonetheless, this argument is only valid in
the context of a positive registration system where the correctness of the register is guaranteed.
501
This is the position in South African law: See section 2.3.1 of chapter two above.
502
2442. For an argument against an adverse possession regime that requires the squatter to compensate the owner,
see Fennell LA Efficient Trespass: The Case for Bad Faith Adverse Possession (2006) 100 Northwestern
University Law Review 1037-1096 1080-1081; Stake JE The Uneasy Case for Adverse Possession (2001) 89
Georgetown Law Journal 2419-2474 2466.
503
504
Miceli TJ & Sirmans CF An Economic Theory of Adverse Possession (1995) 15 International Review of
Law and Economics 161-173 166; Ellickson RC Adverse Possession and Perpetuities Law: Two Dents in the
Libertarian Model of Property Rights (1986) 64 Washington University Law Quarterly 723-737 730-731;
International Review of Law and Economics 217-227 217.
505
University Law Quarterly 667-722 674. To the same effect is Singer JW Introduction to Property (2nd ed 2005)
227
view is in line with the conclusions drawn above, namely that greater certainty reduces
transaction costs.
Whether a country employs a negative or positive registration system is important for

purposes of the economic analysis of prescription and thus deserves attention.506 From
chapter three it was seen that legislation guarantees the correctness of the land register in
countries with a positive registration system, such as England and Germany.507 In these
jurisdictions the register fulfils the role of possession, since one only has to look at the
register which legislation deems as providing conclusive proof of ownership to ascertain
the identity of the landowner. This entails that uncertainty and inspection costs are lower in a
positive registration system, since a prospective purchaser of land need only investigate the
register, thereby incurring search costs, to conclusively determine who the true owner of the
land is.
To the contrary are jurisdictions with a negative registration system, such as South Africa,508
The Netherlands and France, where the correctness of the register is not guaranteed.509 The
main problem in a negative registration system is that the register will inevitably be defective
in some instances, in which case prescription steps in to promote legal certainty.510 Indeed,
164-165. Baird D & Jackson T Information, Uncertainty, and the Transfer of Property (1984) 13 Journal of
Legal Studies 299-320 300 emphasise the fundamental problem that a registration system must solve, namely
that [i]n a world where information is not perfect, we can protect a later owners interest fully, or we can
protect the earlier owners interest fully. But we cannot do both. This passage is quoted with approval in Miceli
TJ, Sirmans CF & Turnbull GK Title Assurance and Incentives for Efficient Land Use (1998) 6 European
Journal of Law and Economics 305-323 306 and referred to in Miceli TJ & Sirmans CF The Economics of
Land Transfer and Title Insurance (1995) 10 Journal of Real Estate Finance and Economics 81-88 82.
506
For a discussion concerning transfer of property through registration systems, see Baird D & Jackson T
Information, Uncertainty, and the Transfer of Property (1984) 13 Journal of Legal Studies 299-320.
507
See sections 3.2.4 and 3.5 respectively of chapter three above.
508
Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoemans The Law of Property (5th ed 2006) 229-
238; Van der Merwe CG Sakereg (2nd ed 1989) 341-345.
509
I do not investigate the question whether it would be more efficient for South Africa to adopt a positive
registration system, as such a study falls outside the scope of this dissertation. For an evaluation of which of
these two systems is more efficient, see Miceli TJ, Munneke HJ, Sirmans CF & Turnbull GK Title Systems
and Land Values (2002) 45 Journal of Law and Economics 565-582; Miceli TJ, Sirmans CF & Turnbull GK
Title Assurance and Incentives for Efficient Land Use (1998) 6 European Journal of Law and Economics
305-323; Miceli TJ & Sirmans CF The Economics of Land Transfer and Title Insurance (1995) 10 Journal of
Real Estate Finance and Economics 81-88; Janczyk JT An Economic Analysis of the Land Title Systems for
Transferring Real Property (1977) 6 Journal of Legal Studies 213-233.
510
260 254-255; Cooter R & Ulen T Law and Economics (4th ed 2004) 155; Posner RA Economic Analysis of Law
(6th ed 2003) 78-80; Sagaert V De Verkrijgende Verjaring van Onroerende Goederen Herbezocht. Een Aanzet
tot het Debat over het Verjaringsrecht (2007) 39 Rechtskundig Weekblad 1582-1597 1586-1587; Rose CM
Possession as the Origin of Property (1985) 52 University of Chicago Law Review 73-88 81-82. Sagaert at
1587 correctly states that this justification for prescription carries less weight in jurisdictions with a positive
registration system, such as Germany and Austria. Nonetheless, the difficulty of finding a balance between the
228
Netter, Hersch and Manson opine that the greater a countrys population density, the higher
the number of transfers, thereby increasing the possibility of errors in the register.511
Therefore, costs pertaining to uncertainty and searching the register are higher in a negative
registration system, since it can be inconclusive to merely consult the register when
determining who owns certain land. This means that prescription indeed plays a role in
clearing up titles and lowering transaction costs in South African law.
The following graph illustrates how litigation costs in the context of prescription vary with
the length of the prescription period:512
Litigation costs are made up of (i) the number of litigated cases and (ii) the costs of erroneous
judicial decisions.513 Law and economics theory which purports to enhance efficiency
aims to keep the sum of these two costs as low as possible. From this graph it is clear that the
number of litigated cases (or outlays) decreases with the lengthening of the prescription
period, although this increases their complexity (possibility of erroneous decisions) due to
loss of evidence and witnesses. In the short run, litigation costs are saved by a longer
prescription period, since it reduces the number of cases coming to court.514 Yet, over a
longer prescription period the costs of incorrectly decided decisions start to outweigh the
formal indicators (registers) and informal indicators (possession) of ownership is pointed out by Singer JW
Entitlement The Paradoxes of Property (2000) 46.
511
International Review of Law and Economics 217-227 223.
512
513
Posner RA Economic Analysis of Law (6th ed 2003) 563-571; Ellickson RC Adverse Possession and
Law Quarterly 723-737 731.
514
Rights (1986) 64 Washington University Law Quarterly 723-737 732; Merrill TW Property Rules, Liability
Rules, and Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1128. To the
contrary is Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474
2438-2439, who thinks that the uncertainty caused by the requirements for adverse possession prevents a
reduction in litigation costs.
229
costs saved from hearing fewer cases, since evidence will be lost over time, which can result
in incorrect judgments.515 This is where prescription reduces litigation costs through
awarding ownership after a certain period of time to the squatter to prevent the problems
that involve stale claims and loss of evidence.516
If one combines the findings from the four figures above, the result can be as follows:517
Figure 5 shows that the optimal period for prescription falls between five and 15 years, since
it is undesirable to have periods that are either too short or too long.518 This is because too
short or too long periods will fall outside the cost-minimising range, together with the fact
515
University Law Quarterly 667-722 676 implies that litigation costs rise with time. See also Stake JE The
Uneasy Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2453. Ellickson draws
this figure assuming that the costs of deciding cases incorrectly will eventually outweigh the initial costs of not
having to hear numerous cases as time passes: See Ellickson RC Adverse Possession and Perpetuities Law:
737 732 footnote 18.
516
Baker M, Miceli T, Sirmans CF & Turnbull GK Property Rights by Squatting: Land Ownership Risk and
Adverse Possession Statutes (2001) 77 Land Economics 360-370 360-361; Bouckaert B & Depoorter BWF
(1999) http://encyclo.findlaw.com/ (accessed 7 October 2010) 1200: 18-31 21; Miceli TJ & Sirmans CF An
International Review of Law and Economics 217-227 219; Merrill TW Property Rules, Liability Rules, and
Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1129-1130.
517
Property Rights (1986) 64 Washington University Law Quarterly 723-737 733, although he acknowledges that
all these graphs were drawn from intuition and may not accurately represent reality. Ellickson (footnote 20 at
733) also recognises that the fact that most US states have limitation periods ranging between five to 15 years
could have influenced the way he drew this figure.
518
Rights (1986) 64 Washington University Law Quarterly 723-737 733-734; Epstein RA Past and Future: The
Temporal Dimension in the Law of Property (1986) 64 Washington University Law Quarterly 667-722 681-
682; Sagaert V De Verkrijgende Verjaring van Onroerende Goederen Herbezocht. Een Aanzet tot het Debat
over het Verjaringsrecht (2007) 39 Rechtskundig Weekblad 1582-1597 1596; Miceli TJ Property in Backhaus
JG (ed) The Elgar Companion to Law and Economics (2nd ed 2005) 246-260 255. Both Ellickson at 733 and
Epstein at 681 think that too short limitation periods are undesirable. Of the same opinion are Netter JM, Hersch
PL & Manson WD An Economic Analysis of Adverse Possession Statutes (1986) 6 International Review of
Law and Economics 217-227 217.
230
that too short periods can encourage people to wilfully commit trespass.519 Bouckaert and
Depoorter capture the conclusion reached from the results contained in this graph:
Although there are costs associated with adverse possession[,] ... sufficient economic
arguments can be forwarded to uphold the assumption that the concept of adverse possession is
called-for and economically justified within a property order.520
Thus far, the economic analysis provides strong support for the claim that prescription indeed
reduces transaction costs in jurisdictions with a negative registration system. Consequently,
law and economics theory clearly regards prescription as a mechanism that clears titles and
more importantly helps to reallocate resources from low-valuing owners to higher-valuing
possessors when voluntary exchange is prevented due to the presence of high transaction
costs. Consequently, prescription fulfils an important economic role in South African law. As
to the period, Ellickson acknowledges that he drew these graphs from intuition, with the
short US adverse possession periods of between five and 15 years possibly having
influenced him. Nonetheless, I argue that these economic predictions justify the presence of a
30-year prescription period in South African law.
Another economic (and utilitarian) theory apart from those addressed above that helps
justify adverse possession is based on entitlement determination rules.521 In his theory,
Merrill distinguishes between mechanical or formalistic entitlement determination rules and
judgmental entitlement determination rules. Mechanical rules give little discretion to courts to
establish substantive and remedial rights.522 This rule is inexpensive to apply because the
519
Rights (1986) 64 Washington University Law Quarterly 723-737 733; Epstein RA Past and Future: The
Temporal Dimension in the Law of Property (1986) 64 Washington University Law Quarterly 667-722 681;
Miceli TJ Property in Backhaus JG (ed) The Elgar Companion to Law and Economics (2nd ed 2005) 246-260
255; Bouckaert B & Depoorter BWF Adverse Possession: Title Systems in Bouckaert B & De Geest G (eds)
Encyclopedia of Law and Economics (1999) http://encyclo.findlaw.com/ (accessed 7 October 2010) 1200: 18-31
24.
520
Bouckaert B & Depoorter BWF Adverse Possession: Title Systems in Bouckaert B & De Geest G (eds)
Encyclopedia of Law and Economics (1999) http://encyclo.findlaw.com/ (accessed 7 October 2010) 1200: 18-31
22.
521
Law Review 1122-1154 1137-1145, although he confines this justification to bona fide possessors. Epstein RA
Past and Future: The Temporal Dimension in the Law of Property (1986) 64 Washington University Law
Quarterly 667-722 685-687 also supports an adverse possession regime that distinguishes between good faith
and bad faith possessors, which has a shorter period for good faith possessors and a longer period concerning
bad faith possessors. Similar to Epstein is Bouckaert B & Depoorter BWF Adverse Possession: Title Systems
in Bouckaert B & De Geest G (eds) Encyclopedia of Law and Economics (1999) http://encyclo.findlaw.com/
(accessed 7 October 2010) 1200: 18-31 25-26. Epstein at 687 suggests a period of between six and 10 years for
good faith possessors and a period between 12 and 20 years for bad faith possessors.
522
Law Review 1122-1154 1137.
231
absence of a discretion removes the uncertainty factor, which results in legal certainty and
reduced litigation.523 As a result, efficiency is maximised due to the fact that mechanical rules
reduce litigation and information costs. On the other hand, judgmental rules afford broad
discretion to courts when they determine entitlements or remedial rights.524 Since judgmental
rules involve a discretion, it follows that they are unpredictable and thus more expensive to
apply.525 It follows that the application of a mechanical rule can result in an arbitrary
allocation of resources in situations where transactions costs are high and the social
desirability of the result is uncertain.526 Judgmental rules can achieve more efficient
outcomes in such a situation.527 For purposes of promoting economic efficiency in the
framework of utilitarianism and law and economics theory, one has to determine whether
adverse possession operates optimally as a mechanical or a judgmental rule. Merrill to my
mind correctly states that it is best if adverse possession operates as a mechanical rule, as
long as it adheres to the following two requirements:
i) the passage of a sufficient period of time between the dispossession and the
extinguishment of ownership; and
ii) adequate notice of the adverse possession to the owner and third parties.528
Under this model (the mechanical rule), courts do not investigate whether the owner truly
sleeps on his rights, nor do they take into account whether evidence was actually lost.
Consequently, litigation costs are lowered because the limitation period (first requirement),
coupled with the requirements of open possession (second requirement), are deemed to
conclusively answer these questions. As a result, this rule is similar to rule-utilitarianism,
which aims to maximise utility in the long run through laying down certain moral or
523
Law Review 1122-1154 1137.
524
Law Review 1122-1154 1137.
525
Law Review 1122-1154 1137.
526
Law Review 1122-1154 1137-1138.
527
Law Review 1122-1154 1138.
528
Law Review 1122-1154 1140. See also Posner RA Economic Analysis of Law (6th ed 2003) 78; Ellickson RC
Adverse Possession and Perpetuities Law: Two Dents in the Libertarian Model of Property Rights (1986) 64
Washington University Law Quarterly 723-737 725-734; Rose CM Possession as the Origin of Property
(1985) 52 University of Chicago Law Review 73-88 79-80; Holmes OW The Path of the Law (1897) 10
Harvard Law Review 457-478 477. These two requirements correspond to the conclusions reached in the
economic analysis at Figures 1 and 3 above.
232
utilitarian rules.529 The mechanical-rule approach as well as rule-utilitarianism overrules
the objections made by Dockray against allowing adverse possession in cases where an
owner did not really sleep on his rights and where evidence as to ownership is available.530 In
this sense Dockray seems rather to support a regime where adverse possession operates as a
judgmental rule. According to this rule, the courts will have to determine in every case
whether the owner has truly slept on his rights, whether evidence was lost and whether the
adverse possessor and third parties have indeed developed a reliance interest in the
property.531 To decide these questions increases litigation costs and the uncertainty of
outcomes, which impacts negatively on the marketability of the land due to the increase in
transaction costs. Thus, it is preferable for adverse possession to operate, as it currently does,
as a mechanical entitlement determination rule.532 It follows that even though an owner did
not sleep on his rights and evidence concerning ownership is readily available, the law lays
down conclusive presumptions or rules for purposes of maximising efficiency. However,
Merrill is doubtful whether a mechanical rule serves the best purpose in situations involving
mala fide possessors, since he prefers a (more expensive) judgmental rule under these
circumstances to prevent coerced transfers.533 I argue from an efficiency point of view
that it is best to use a mechanical rule for both good faith and bad faith adverse possessors,
since one derives the same economic benefits from such a model as one where it would only
be applicable to good faith adverse possessors.534 Such a conclusion finds further support in
529
Rule-utilitarianism is discussed in greater detail at the beginning of this section.
530
See the discussion in section 4.3.2 above.
531
Law Review 1122-1154 1140-1143. See also Posner RA Economic Analysis of Law (6th ed 2003) 78 footnote 3;
Miceli TJ & Sirmans CF An Economic Theory of Adverse Possession (1995) 15 International Review of Law
and Economics 161-173 161; Sprankling JG An Environmental Critique of Adverse Possession (1994) 79
Cornell Law Review 816-884 819-820; Singer JW The Reliance Interest in Property (1988) 40 Stanford Law
Review 611-751 666-669; Ellickson RC Adverse Possession and Perpetuities Law: Two Dents in the
Libertarian Model of Property Rights (1986) 64 Washington University Law Quarterly 723-737 726, 730-731;
Review 1122-1154 1131-1132; Rose CM Possession as the Origin of Property (1985) 52 University of
Chicago Law Review 73-88 79-80.
532
Law Review 1122-1154 1140-1143.
533
Law Review 1122-1154 1143-1144. Epstein RA Past and Future: The Temporal Dimension in the Law of
Property (1986) 64 Washington University Law Quarterly 667-722 685-687 also opts for a model of adverse
possession that differentiates between good and bad faith adverse possessors.
534
I extrapolate this from the economic analysis of adverse possession in Figures 1 to 5 above. Further support
for this point is found in Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting
after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260; Pealver EM & Katyal SK Property
Outlaws (2007) 155 University of Pennsylvania Law Review 1095-1186; Fennell LA Efficient Trespass: The
Case for Bad Faith Adverse Possession (2006) 100 Northwestern University Law Review 1037-1096. These
sources are discussed in section 4.5 below.
233
the unhelpful and fallacious distinction between good and bad faith possessors, which is
discussed in the next section.535
Another suggestion by Merrill is that an adverse possessor should indemnify an owner who
loses ownership through adverse possession by converting such owners entitlement from one
protected by a property rule to one protected by a liability rule.536 This will require the
adverse possessor to pay the fair market value to the owner to be able to retain possession of
the acquired property.537 However, this solution subverts many of the objectives of adverse
possession, namely the quieting of titles, elimination of old claims, the protection of the
reliance interests of squatters and third parties and the reduction of transaction costs,
especially if the adverse possessor is unable to pay.538 Indeed, even the California Supreme
535
Section 4.5 below.
536
Law Review 1122-1154 1145-1153, relying on Calabresi G & Melamed AD Property Rules, Liability Rules
and Inalienability: One View of the Cathedral (1972) 85 Harvard Law Review 1089-1128. The difference
between these two rules are set out by Calabresi G & Melamed AD Property Rules, Liability Rules and
Inalienability: One View of the Cathedral (1972) 85 Harvard Law Review 1089-1128 1092. Calabresi and
Melamed explain at 1902 that an entitlement (such as property) is protected by a property rule if a person who
wants to acquire it from its owner has to buy it from such owner in a voluntary transaction where the value of
the entitlement is determined by the seller. On the other hand, an entitlement is protected by a liability rule when
someone is allowed to destroy that entitlement (such as through adverse possession), provided that he is
willing to pay an objectively determined value for it. This value could be equal to what the original owner
would have sold the entitlement for, but this need not necessarily be the case, since the value of the entitlement
will be determined objectively by the state. For a concise discussion in this regard, see Miceli TJ Property in
Backhaus JG (ed) The Elgar Companion to Law and Economics (2nd ed 2005) 246-260 249. This suggestion by
Merrill is criticised by Miceli TJ & Sirmans CF An Economic Theory of Adverse Possession (1995) 15
International Review of Law and Economics 161-173 165-166.
537
Law Review 1122-1154 1145, relying on Calabresi G & Melamed AD Property Rules, Liability Rules and
Inalienability: One View of the Cathedral (1972) 85 Harvard Law Review 1089-1128 1092. Merrill at 1145-
1149 further refines such an approach by introducing the possibility of indemnification, which he divides into
universal indemnification (where the subjective intent of the adverse possessor is irrelevant) and limited
indemnification (where the subjective intent of the adverse possessor has to be determined). This refined
approach of Merrill falls outside the scope of my dissertation and is therefore not discussed here.
538
Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2466;
Miceli TJ & Sirmans CF An Economic Theory of Adverse Possession (1995) 15 International Review of Law
and Economics 161-173 161, 165-166; Singer JW The Reliance Interest in Property (1988) 40 Stanford Law
Review 611-751 666-669; Epstein RA Past and Future: The Temporal Dimension in the Law of Property
(1986) 64 Washington University Law Quarterly 667-722 689. Epstein at 689 and Miceli and Sirmans at 166
criticise this approach by stating that liability rules are costly to administer and that requiring the adverse
possessor to indemnify the owner will according to Epstein undercut the security of transactions concern
that lies at the base of [adverse possession]. Furthermore, the fact that the adverse possessor wont be able to
pay is a very real consequence, especially if one has regard to the fact that [t]he prototypical squatter is poor
and landless, as pointed out by Fennell LA Efficient Trespass: The Case for Bad Faith Adverse Possession
(2006) 100 Northwestern University Law Review 1037-1096 1081; Cobb N & Fox L Living Outside the
System? The (Im)morality of Urban Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies
236-260 253. In this regard Stake at 2466 fears that if the adverse possessor is forced to sell the land to satisfy
the liability rule, he will suffer the very subjective losses that adverse possession tries to avoid, which will result
in a nett decrease in utility. Furthermore, Singer in footnote 183 at 669 states that it would be immoral to
allow the owner to claim an interest in the form of a liability rule after the adverse possessor has acquired
234
Court voices its opposition to such an approach in Warsaw v Chicago Metallic Ceilings
Inc,539 where it held that [t]o exact such a charge would entirely defeat the legitimate
policies underlying the doctrines of adverse possession and prescription ...540 The argument
for excluding the bad faith adverse possessor from the mechanical rule is also based on the
premise that mala fide possessors are morally reprehensible,541 which I argue is not always
the case.542
To summarise, utilitarianism and law and economics theory provide powerful grounds for
justifying adverse possession or prescription. Utilitarianism achieves this purpose by
recognising prescription (through rule-utilitarianism) as a permissible method of acquisition
of ownership, since prescription maximises utility by deciding disputes and promoting legal
certainty. It has been established that law and economics theory can also accommodate
prescription. The reasons for this conclusion are, inter alia, that prescription recognises and
protects the reliance interest of the squatter and third parties by affording legal status to
long-existing factual scenarios and by reducing transaction costs in jurisdictions with a
negative registration system. Through connecting the potential demoralisation costs a squatter
may suffer to the Holmes effect and Radins personality theory should the squatter not be
able to acquire ownership through adverse possession law and economics theory indicates
that economic efficiency is maximised by shifting the property to the more efficient user of it.
the land through his reliance interest. It can also be argued that the adverse possessor has by this time become so
bound up with the property that having to part with it, in a situation where he cannot pay, would be detrimental
to his personhood, according to Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015
959-960; Radin MJ Time, Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-
758 748-750. Indeed, I argue that Alexanders social-obligation norm obliges an owner to give his (neglected)
property to the squatter if it has become essential for such squatter to lead a well-lived life: See generally
Alexander GS The Social-Obligation Norm in American Property Law (2009) 94 Cornell Law Review 745-
820 769. See further the discussion of the social-obligation theory in section 4.4.3 above.
539
676 P.2d 584 (Cal 1984).
540
676 P.2d 584 (Cal 1984) 590. Despite this criticism, Merrill TW Property Rules, Liability Rules, and
Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1150-1151 thinks that a
stronger argument can be made for adopting a limited indemnification rule to prevent coerced transfers in cases
concerning mala fide possessors, so that they cannot be rewarded for their unlawful conduct.
541
Merrills approach is similar to the one adopted by the English Law Commission in Land Registration for the
Twenty-First Century: A Conveyancing Revolution Number 271 (July 2001) para 2.72; Land Registration for
the Twenty-First Century: A Consultative Document Number 254 (September 1998) para 10.5.
542
See the discussion in section 4.5 below. See further Fennell LA Efficient Trespass: The Case for Bad Faith
Adverse Possession (2006) 100 Northwestern University Law Review 1037-1096 1081; Cobb N & Fox L
27 Legal Studies 236-260 253; Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law
Journal 2419-2474 2466. By requiring the adverse possessor to indemnify the owner will also reduce efficiency,
according to Miceli TJ & Sirmans CF An Economic Theory of Adverse Possession (1995) 15 International
Review of Law and Economics 161-173 166; Epstein RA Past and Future: The Temporal Dimension in the Law
of Property (1986) 64 Washington University Law Quarterly 667-722 689.
235
4.5 The anomaly of the bad faith possessor
It was seen that most of the three liberal theories discussed above are able to accommodate
not only adverse possession, but also bad faith adverse possession. Nevertheless, acquisition
of ownership through bad faith adverse possession seems to present a significant
qualification of the rights paradigm in the sense that the security of ownership is reduced or
undermined.543 For this reason it is necessary to investigate whether bad faith adverse
possession truly undermines ownership and whether it is, perhaps, founded on fallacious
assumptions.
Many authors view the acquisition of property through bad faith adverse possession as
constituting an anomaly in the law, such a possessor normally being labelled a land-thief
who (ab)uses the law to steal property from owners.544 Epstein describes them as both bad
people in the individual cases and a menace in the future,545 while Merrill invokes our
shared sense of the greater moral culpability of the bad faith possessor.546 According to
Helmholz
[t]here is something wrong in claiming land when one has known all along that it belonged to
someone else. It is impossible not to feel differently about such bad faith possessors than one
does about claimants who have made an honest mistake and relied upon it.547 (Original
emphasis.)
543
544
1186 1097-1098; Sagaert V De Verkrijgende Verjaring van Onroerende Goederen Herbezocht. Een Aanzet tot
het Debat over het Verjaringsrecht (2007) 39 Rechtskundig Weekblad 1582-1597 1585, 1594; Fennell LA
Review 1037-1096 1037-1040; Stake JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law
Journal 2419-2474 2454-2455; Miceli TJ & Sirmans CF An Economic Theory of Adverse Possession (1995)
15 International Review of Law and Economics 161-173 161-162; Sprankling JG An Environmental Critique
of Adverse Possession (1994) 79 Cornell Law Review 816-884 881-884; Netter JM, Hersch PL & Manson WD
An Economic Analysis of Adverse Possession Statutes (1986) 6 International Review of Law and Economics
217-227 217, 219; Merrill TW Property Rules, Liability Rules, and Adverse Possession (1985) 79
Northwestern University Law Review 1122-1154 1135. However, Pealver and Katyal are of the opinion that
intentional lawbreakers play an important role in the evolution of property law: See Pealver EM & Katyal SK
Property Outlaws (2007) 155 University of Pennsylvania Law Review 1095-1186 1105-1131. See also
288, who thinks that adverse possession is not immoral because it influences social policy and that it grants
security to long possession of land.
545
University Law Quarterly 667-722 686, 685-689.
546
Law Review 1122-1154 1126.
547
Helmholz RH More on Subjective Intent: A Response to Professor Cunningham (1986) 64 Washington
University Law Quarterly 65-106 75. See also Helmholz RH Adverse Possession and Subjective Intent (1984)
61 Washington University Law Quarterly 331-358 343.
236
Radin argues that her personality theory is more likely to accommodate good faith adverse
possessors than bad faith ones,548 whereas Posner also thinks that adverse possession ought
only to be allowed in cases involving good faith possessors.549 These sentiments toward the
bad faith possessor are also reflected in the proposals for reform to the law of adverse
possession, with Merrill suggesting that bad faith possessors should indemnify owners for
property acquired through adverse possession.550 Furthermore, Epstein advocates instituting
an adverse possession regime that requires longer periods in cases involving bad faith, similar
to what is found in some civil law jurisdictions.551 One can also observe the anomaly of the
bad faith adverse possessor in US law, where some academics predict that good faith adverse
possessors tend to fare better in cases based on adverse possession than their bad faith
counterparts, despite the fact that the subjective intent of the possessor is irrelevant in the
adverse possession law of most US states.552
Despite the criticism directed against the bad faith possessor, there are authors who think that
bad faith adverse possession is justified.553 Fennel amongst them argues that the terms
bad faith554 and good faith555 are insufficient labels for situations that involve adverse
possessors, as she prefers to refer to these persons as knowing (or advertent) and
548
549
550
Law Review 1122-1154 1126.
551
University Law Quarterly 667-722 685-689. See similarly Bouckaert B & Depoorter BWF Adverse
Possession: Title Systems in Bouckaert B & De Geest G (eds) Encyclopedia of Law and Economics (1999)
http://encyclo.findlaw.com/ (accessed 7 October 2010) 1200: 18-31 25-26; Miceli TJ & Sirmans CF An
Economic Theory of Adverse Possession (1995) 15 International Review of Law and Economics 161-173 167.
Both Dutch and French prescription law have longer prescription periods if the possessor is in bad faith, see
sections 3.3.2.2.3 and 3.4.2.2 respectively of chapter three above.
552
Helmholz RH Adverse Possession and Subjective Intent (1984) 61 Washington University Law Quarterly
331-358 331-332. For authority that the subjective intent of the possessor is irrelevant in black letter US adverse
possession law, see Dukeminier J & Krier JE et al Property (6th ed 2006) 126-127. The discussion of the
substantive requirements for US adverse possession falls outside the scope of this dissertation and are not
addressed here. For discussions of the requirements for adverse possession in US law, see Dukeminier J & Krier
JE et al Property (6th ed 2006) 112-157; Singer JW Introduction to Property (2nd ed 2005) 145-158.
553
1186; Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after the Land
Registration Act 2002 (2007) 27 Legal Studies 236-260; Fennell LA Efficient Trespass: The Case for Bad
Faith Adverse Possession (2006) 100 Northwestern University Law Review 1037-1096.
554
University Law Quarterly 65-106 69-70 defines bad faith adverse possession as continuing trespass the
claimant knows to be without right, explaining that it has no necessary connection to hardness of heart or
design to appropriate wrongfully, although of course it may involve both.
555
University Law Quarterly 65-106 69 describes good faith as to mean[.] that the claimant believed the land
belonged to him.
237
inadvertent adverse possessors.556 This stands in contrast to other authors who argue that
good faith adverse possessors should be favoured above their bad faith counterparts.557 In this
sense Fennell states that [i]nstead of triggering moral condemnation and legal disadvantage,
[an adverse possessors] knowledge of the encroachment should be a prerequisite for
obtaining title under a properly formulated doctrine of adverse possession.558 The following
argument reinforces this approach:
It is inconsistent to view someone as a thief or a bad faith actor for doing nothing more than
knowingly employing the laws own process for acquiring land.559
Fennell maintains that it is best to view adverse possession as a doctrine of efficient

trespass.560 Interestingly, she argues that adverse possession concerning land should only be
justified if two conditions are met, namely (i) when there is a substantial difference in the
parties valuations of the land and (ii) when a market transaction is unavailable.561 Indeed,
one of the main justifications for adverse possession is that it moves land to higher-valuing
users when the market is unable to achieve this goal.562
556
557
See generally Epstein RA Past and Future: The Temporal Dimension in the Law of Property (1986) 64
Washington University Law Quarterly 667-722; Merrill TW Property Rules, Liability Rules, and Adverse
Possession (1985) 79 Northwestern University Law Review 1122-1154; Posner RA Economic Analysis of Law
(6th ed 2003) 78 footnote 3; Bouckaert B & Depoorter BWF Adverse Possession: Title Systems in Bouckaert
B & De Geest G (eds) Encyclopedia of Law and Economics (1999) http://encyclo.findlaw.com/ (accessed 7
October 2010) 1200: 18-31 25-26.
558
University Law Review 1037-1096 1038 (Own emphasis). Goodman MJ Adverse Possession of Land
Morality and Motive (1970) 33 Modern Law Review 281-288 supports a system of adverse possession that
does not distinguish between good faith and bad faith possessors.
559
University Law Review 1037-1096 1044. See also Pealver EM & Katyal SK Property Outlaws (2007) 155
University of Pennsylvania Law Review 1095-1186 1098-1104.
560
University Law Review 1037-1096 1038. Pealver EM & Katyal SK Property Outlaws (2007) 155 University
of Pennsylvania Law Review 1095-1186 1169 are of the opinion that the term efficient theft is more fitting in
this context.
561
University Law Review 1037-1096 1040-1041. See also Posner RA Economic Analysis of Law (6th ed 2003) 83
and Merrill TW Property Rules, Liability Rules, and Adverse Possession (1985) 79 Northwestern University
Law Review 1122-1154 1129-1131, although both authors require good faith under these circumstances. For the
relevance of these two requirements from a perspective of law and economics theory, see the discussion in
562
University Law Review 1037-1096 1040 is of the opinion that this is the niche goal of adverse possession. See
also Sagaert V De Verkrijgende Verjaring van Onroerende Goederen Herbezocht. Een Aanzet tot het Debat
over het Verjaringsrecht (2007) 39 Rechtskundig Weekblad 1582-1597 1585; Miceli TJ Property in Backhaus
JG (ed) The Elgar Companion to Law and Economics (2nd ed 2005) 246-260 246-248, 254-255; Cooter R &
Ulen T Law and Economics (4th ed 2004) 155; Posner RA Economic Analysis of Law (6th ed 2003) 55, 83;
238
Fennell disagrees with the literature directed against bad faith adverse possessors and
advances an argument favouring such possessors. She indicates that the apparently
uncomplicated distinction between good faith and bad faith adverse possession is an
oversimplification,563 which is illustrated in the following table:564
Table 1: Belief, fact and knowledge

Objective fact
Possessor actually Possessor does not
owns the land actually own the land
Subjective belief
Possessor believes he owns I. Secure owner II. Inadvertent encroacher
the land [good faith]
Possessor believes he does III. Insecure owner IV. Knowing trespasser

not own the land [bad faith]
Possessor is unsure of V. Doubting owner VI. Doubting possessor

whether he owns the land
This table demonstrates that the possessors knowledge depends on the interaction between
the possessors subjective belief and the objective facts, while cells II and IV illustrate the
distinction between good faith and bad faith possessors. Fennell correctly argues that the line
between these two mental states is less clear than it prima facie seems. According to her it is
difficult to establish whether the possessors entry was either knowing (bad faith) or
inadvertent (good faith), unless the possessor makes an overt move (such as an offer to buy
the land) that reveals his mental state towards the land.565 Furthermore, possessors can choose
whether or not to inform themselves of their position, which makes knowledge an unstable
criterion to determine whether good faith or bad faith is present.566 In this sense a false
belief in ownership may be based on the most extensive efforts available, minimally
reasonable efforts, ... no efforts at all, or wilful ignorance stubbornly maintained against all
Conveyancer 136-156 151-152; Ellickson RC Adverse Possession and Perpetuities Law: Two Dents in the
Libertarian Model of Property Rights (1986) 64 Washington University Law Quarterly 723-737 724-725.
563
564
I borrow this table from Fennell LA Efficient Trespass: The Case for Bad Faith Adverse Possession
(2006) 100 Northwestern University Law Review 1037-1096 1049.
565
566
239
signs to the contrary.567 From this argument it appears that the obvious distinction
between good and bad faith is not so simple in reality, since it is possible to be in good faith
even though a possessor did the absolute minimum to inform himself as to the objective facts
of a situation. The distinction between good and bad faith involves the further complication
of evidence, which problem applies to the possessor who is unsure of whether he owns the
land and which is illustrated by cells V and VI. How is an owner to prove that an adverse
possessor who claims ownership to his property was indeed in bad faith? A possible solution
to this conundrum is the approach adopted by Dutch and French law where good faith
possession is presumed, which has the effect that the owner then has to prove the presence of
mala fides.568
The problem with distinguishing between good and bad faith is further complicated if one
takes into account the difference between knowledge and intent.569 These two categories can
produce a multiplicity of mental states if they are combined, as the following table
illustrates:570
Table 2: Adding intent to knowledge
Intent
Possessor intends to Possessor does not intend
claim even if it is not to claim anything that is
Knowledge his not his
(from table 1)
Inadvertent (good faith) Aggressive innocent Deferential innocent
encroacher (table 1, cell II) (hypothetical intent) (hypothetical intent)
Knowing (bad faith) Aggressive trespasser Deferential trespasser

trespasser
(table 1, cell IV)
Doubting possessor Passive-aggressive Deferential doubter
(table 1, cell VI) trespasser
567
568
See section 3.3.2.2.2 for Dutch law and section 3.4.2.2 for French law in chapter three above. This was also
the position under Roman law, see section 2.2.2 of chapter two above.
569
University Law Review 1037-1096 1051; Stake JE The Uneasy Case for Adverse Possession (2001) 89
Georgetown Law Journal 2419-2474 2427-2428.
570
I borrow this table from Fennell LA Efficient Trespass: The Case for Bad Faith Adverse Possession
(2006) 100 Northwestern University Law Review 1037-1096 1051.
240
This table highlights the problems one can encounter with the seemingly unproblematic
distinction between good faith and bad faith adverse possession. If the adverse possessor is
inadvertent, will he necessarily have the requisite intention to claim land through adverse
possession even if such possessor is convinced that he already owns the land? What will
happen to the inadvertent possessor who believes himself to be the owner, but who is then
confronted by the owner and decides not to claim the property through adverse possession
(even though ownership was already acquired ex lege)? These difficulties emphasise the
following question: Is the passive-aggressive trespasser who chooses not to resolve her
doubts really morally superior to the aggressive trespasser[,] [or] [s]hould the aggressive
innocent be preferred over the deferential but aware trespasser?571 Fennell states that it is not
clear whether a moral distinction exists, even if all innocent possessors are viewed as
deferential and all knowing trespassers are regarded as aggressors.572
Against this background one may rightly ask why the academic stance is so weighed against
bad faith possession, labelling it as constituting land theft. Fennell argues that by
disentangling the way law and morality are conflated in the word thief, one is able to
discover why the law opposes bad faith adverse possession.573 Firstly, it is clear that acts that
violate the law are classified as crimes. However, it cannot be a crime if someone follows a
legally recognised method to acquire ownership in an object.574 Yet, one may object to such a
notion by claiming that no legal rule can change a moral wrong into a right because even
though the state sanctions or legalises something like adverse possession (or abortion), it
could possibly still amount to an immoral state of affairs.575 In this sense Fennell argues if
one leaves aside the adversity of possession that the mere desire to obtain property through
possession cannot truly create moral difficulties, since no rights or interests of others are
infringed through this desire alone.576 If such an infringement indeed exists, the moral fault
571
572
573
University Law Review 1037-1096 1053-1059.
574
575
University Law Review 1037-1096 1053-1054.
576
241
would appear to lie with the party responsible for it.577 In this context a possessors mere
desire to acquire property does not infringe an owners property rights purely because the
government allows for the shift of ownership in favour of the possessor.578 Consequently, it is
governmental power that takes ownership away from the owner, not the acquisitive thoughts
of the possessor.579 This argument needs to be further analysed, since adverse possession
requires the possessor to be in physical possession before the property can be acquired
through prescription. In this instance the possessor is responsible for the occupation of the
property, while the government awards ownership to that possessor at the expiration of a
certain period of time, which results in the loss of ownership on the side of the owner.580 In
other words, the fault for the loss of ownership resides not with the possessor but with the
state, since it is the state that awards ownership to the possessor if he was in possession for
the duration of the prescription period. Yet, even if one accepts this line of argument, it seems
that it only shifts the blame from the possessor to the government, which still necessitates
an inquiry as to whether the notion of adverse possession should be allowed at all.
It is clear that trespassing on the property of another is both morally and legally wrong. The
law provides remedies to owners to regain possession from such adverse possessors, causing
the legal position of the adverse possessor to be relatively weak. The law protects owners by
requiring an adverse possessor to be in possession of the property for a substantial period of
time before he can acquire ownership. Furthermore, the owner can stop this possession at any
time through intervening and evicting the possessor. By relying on these two grounds,
Fennell concludes that owners who fail to reclaim possession from the trespasser are unlikely
to be pained581 by the trespass itself.582 The loss of ownership through prescription is a
577
578
579
580
581
Rights (1986) 64 Washington University Law Quarterly 723-737 727-728 uses the notion of demoralization
costs developed by Michelman FI Property, Utility, and Fairness: Comments on the Ethical Foundations of
Just Compensation Law (1967) 80 Harvard Law Review 1165-1258 1214 to capture this pain. See also
Review 1122-1154 1129-1130; Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015
1003.
582
University Law Review 1037-1096 1057. See also Singer JW Introduction to Property (2nd ed 2005) 163; Stake
JE The Uneasy Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2453; Baker M,
242
separate issue that may pain the owner, but this pain will be felt despite the subjective intent
of the possessor.583 It follows that if we believe that ownership should never either morally
or legally be extinguished in favour of possessors, it will require the abolition of adverse
possession and not merely limiting it to cases involving good faith possessors.584 If Fennell is
correct in her reasoning, it follows that no true benefit is gained by distinguishing between
good and bad faith possessors. Accordingly, I agree that it serves no useful purpose to
distinguish between good and bad faith prescription, which is in line with the current position
in South African law.585
Another take on bad faith adverse possession is the approach of Pealver and Katyal,586 who
divide these so-called property outlaws587 or lawbreakers into two categories, namely
acquisitive outlaws and expressive outlaws.588 The difference between them is that the
former group seeks to acquire ownership in the property of others, while the latter group
rather than seeking ownership attempts to influence the ways owners use or enjoy their
property.589 For purposes of justifying bad faith adverse possession it is only necessary to
consider the category of acquisitive outlaws. In this sense the focus of Pealver and Katyals
analysis falls on the European settlers who settled on land in the American West that mostly
Possession Statutes (2001) 77 Land Economics 360-370 361, 364-365; Miceli TJ, Sirmans CF & Turnbull GK
Title Assurance and Incentives for Efficient Land Use (1998) 6 European Journal of Law and Economics
305-323 311; Miceli TJ & Sirmans CF An Economic Theory of Adverse Possession (1995) 15 International
Review of Law and Economics 161-173 168; Singer JW The Reliance Interest in Property (1988) 40 Stanford
Law Review 611-751 667; Epstein RA Past and Future: The Temporal Dimension in the Law of Property
(1986) 64 Washington University Law Quarterly 667-722 692; Netter JM, Hersch PL & Manson WD An
Economic Analysis of Adverse Possession Statutes (1986) 6 International Review of Law and Economics 217-
227 217, 222; Ellickson RC Adverse Possession and Perpetuities Law: Two Dents in the Libertarian Model of
583
University Law Review 1037-1096 1057. As indicated by Figure 1 in section 4.4.4 above, the pain (in terms of
demoralisation costs) suffered by the owner decreases with the lengthening of the prescription period.
584
585
586
1186.
587
1186 1095.
588
1186 1105.
589
1186 1105. Because many outlaw movements represent a complex mixture of motives, Pealver and Katyal also
discuss a hybrid category of intersectional outlaws. However, it is not necessary to focus on this category
here.
243
belonged to either the Native Americans or the federal government.590 As to these lands the
settlers argued that [e]very citizen ... is entitled to own land, and the claims of those who
actually work the land should take precedence over the fungible interests of absentee land
speculators.591 Interestingly, this argument for justifying the taking of Western lands
contains elements of both the labour theory and Radins personality theory.592 Yet, these
settlers who squatted on public land were a major concern to the federal government in
the East, since the government viewed them as taking land without paying for it. The fact that
many owners of western land were absent and thus let their property lie unused, coupled with
the difficulty of regulating squatting in the vast areas of the West, ultimately forced the
federal government to relax the laws pertaining to unlawful occupation of federal land and
through this the shameless lawbreakers and usurpers reviled by the eastern elite [were
transformed] into the revered pioneers of American mythology.593 Pealver and Katyal
capture the influence of these squatters on US land law as follows:
Their persistent and acquisitive lawbreaking raised the political profile of conflicts over how to
dispose of the massive quantities of public land acquired by the United States government
during the first half of the nineteenth century, and it ultimately led to the resolution of the
conflict in their favor.594
Pealver and Katyal agree with Radin that property is important to individual identity, as
controlling property extends our capacity to live as humans.595 This significance of property
to people emphasises two points, namely the importance of protecting existing property
rights,596 and that existing property rules should be challenged in situations where persons are
590
1186 1105-1106.
591
1186 1107. This is analogous to Radins personality theory, see Radin MJ Property and Personhood (1982) 34
Stanford Law Review 957-1015 986. See also Dixon M The Reform of Property Law and the Land Registration
Act 2002: A Risk Assessment 2003 Conveyancer 136-156 151-152; Stake JE The Uneasy Case for Adverse
Possession (2001) 89 Georgetown Law Journal 2419-2474 2456-2457; Merrill TW Property Rules, Liability
Rules, and Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1127; Holmes OW
The Path of the Law (1897) 10 Harvard Law Review 457-478 477.
592
These two theories are discussed in sections 4.4.2 and 4.4.3 respectively above.
593
1186 1113.
594
1186 1113.
595
1186 1131. See further Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 972-
973; Radin MJ Time, Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758
741, 748-750. This position is analogous to social-obligation norm developed by Alexander GS The Social-
Obligation Norm in American Property Law (2009) 94 Cornell Law Review 745-820, which is addressed in
596
See, for instance, Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 986,
where she states that personal property should enjoy greater protection than fungible property.
244
excluded from participating in the ownership system.597 For example, people excluded from
access to ownership such as the poor find themselves isolated from the social and
commercial activity many take for granted.598 This is where the ambiguous role of the
property outlaw ... sets the stage for productive disobedience.599
In this sense adverse possession plays an important role in situations where a squatter places
a greater value on property than the owner and where certain factors such as high
transaction costs and/or the poverty of the squatter prevents voluntary exchange.600 This is
an ideal setting to reallocate the property from a neglecting owner to an adverse possessor
who actually uses the property. However, like the problem with Radins personality theory, it
is difficult to identify cases where the squatter truly attaches greater value on the property
than the owner for such an involuntary transfer to be permitted.601 Yet, the adverse
possessors long-term use of the property can provide evidence of the high value such
possessor places on the property, especially because the owner can simply reclaim possession
at any time before the limitation period expires.602 These factors when combined indicate
597
1186 1132. To the same effect is Fennell LA Efficient Trespass: The Case for Bad Faith Adverse Possession
(2006) 100 Northwestern University Law Review 1037-1096 1080-1083.
598
1186 1132; Fennell LA Efficient Trespass: The Case for Bad Faith Adverse Possession (2006) 100
Northwestern University Law Review 1037-1096 1080-1083. To the same effect are Cobb N & Fox L Living
Legal Studies 236-260 253.
599
1186 1133.
600
1186 1145; Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after the Land
Registration Act 2002 (2007) 27 Legal Studies 236-260 253; Fennell LA Efficient Trespass: The Case for
Bad Faith Adverse Possession (2006) 100 Northwestern University Law Review 1037-1096 1065, 1080-1081;
Posner RA Economic Analysis of Law (6th ed 2003) 78; Epstein RA Past and Future: The Temporal Dimension
in the Law of Property (1986) 64 Washington University Law Quarterly 667-722 674-682; Ellickson RC
Adverse Possession and Perpetuities Law: Two Dents in the Libertarian Model of Property Rights (1986) 64
Washington University Law Quarterly 723-737 725-734. To the same effect are Sagaert V De Verkrijgende
Verjaring van Onroerende Goederen Herbezocht. Een Aanzet tot het Debat over het Verjaringsrecht (2007) 39
Rechtskundig Weekblad 1582-1597 1585; Dixon M The Reform of Property Law and the Land Registration
Act 2002: A Risk Assessment 2003 Conveyancer 136-156 151-152; Rose CM Possession as the Origin of
Property (1985) 52 University of Chicago Law Review 73-88 79-82. To the contrary is Stake JE The Uneasy
Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2435-2436, 2445.
601
1186 1145; Radin MJ Time, Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-
758 742; Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 987, 991-992. This
difficulty can be overcome if non-use is equated with abandonment, a solution advocated by Posner RA
Economic Analysis of Law (6th ed 2003) 78, 83. However, this approach by Posner is criticised by Stake JE The
Uneasy Case for Adverse Possession (2001) 89 Georgetown Law Journal 2419-2474 2456; Sprankling JG An
Environmental Critique of Adverse Possession (1994) 79 Cornell Law Review 816-884 875.
602
1186 1145-1146; Fennell LA Efficient Trespass: The Case for Bad Faith Adverse Possession (2006) 100
245
that the adverse possessor indeed values the property more than the absent owner.603 This
state of affairs is even more justified in circumstances where the access to property by the
adverse possessor and owner is out of balance, the owner being wealthy while the adverse
possessor is poor and perhaps socially marginalised.604 Adverse possession performs a dual
function in this context by (i) generating informational value as to the inefficient distribution
of property rights in society, together with (ii) promoting redistributive value through
affecting transactions that would otherwise not be able to occur due to high transaction
costs.605 Consequently, if certain involuntary transfers sufficiently maximise utility for the
greatest number of people, property reallocating mechanisms such as adverse possession
become an advantageous solution.606
Northwestern University Law Review 1037-1096 1040-1041; Singer JW Introduction to Property (2nd ed 2005)
160; Posner RA Economic Analysis of Law (6th ed 2003) 78 footnote 3; Singer JW Entitlement The Paradoxes
of Property (2000) 45-46; Miceli TJ & Sirmans CF An Economic Theory of Adverse Possession (1995) 15
International Review of Law and Economics 161-173 161; Singer JW The Reliance Interest in Property
(1988) 40 Stanford Law Review 611-751 664, 666-668; Merrill TW Property Rules, Liability Rules, and
Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1131-1132; Rose CM
Possession as the Origin of Property (1985) 52 University of Chicago Law Review 73-88 79-80. This will
most likely be the case in the context of squatters occupying property as a home, see Cobb N & Fox L Living
Legal Studies 236-260 250-252; Auchmuty R Not Just a Good Childrens Story: A Tribute to Adverse
Possession 2004 Conveyancer 293-307 307; Stake JE The Uneasy Case for Adverse Possession (2001) 89
Georgetown Law Journal 2419-2474 2457. See further Clarke A Use, Time, and Entitlement (2004) 57
Current Legal Problems 239-275 272; Goodman MJ Adverse Possession of Land Morality and Motive
(1970) 33 Modern Law Review 281-288 288.
603
1186 1146. See also Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after
the Land Registration Act 2002 (2007) 27 Legal Studies 236-260 253; Singer JW Introduction to Property (2nd
ed 2005) 160; Posner RA Economic Analysis of Law (6th ed 2003) 78 footnote 3, 83; Singer JW Entitlement
The Paradoxes of Property (2000) 45-46; Miceli TJ & Sirmans CF An Economic Theory of Adverse
Possession (1995) 15 International Review of Law and Economics 161-173 161; Singer JW The Reliance
Interest in Property (1988) 40 Stanford Law Review 611-751 664, 666-668; Merrill TW Property Rules,
1132; Rose CM Possession as the Origin of Property (1985) 52 University of Chicago Law Review 73-88 79-
80. See especially Singer JW Introduction to Property (2nd ed 2005) 162, who states that [i]f an owner
abandons her rights, it is not accurate to call the intentional trespasser a pirate or a thief.
604
Northwestern University Law Review 1037-1096 1080-1083; Cobb N & Fox L Living Outside the System?
253.
605
1186 1146-1147.
606
Northwestern University Law Review 1037-1096 1065. To the same effect are Sagaert V De Verkrijgende
Verjaring van Onroerende Goederen Herbezocht. Een Aanzet tot het Debat over het Verjaringsrecht (2007) 39
Rechtskundig Weekblad 1582-1597 1585; Rose CM Possession as the Origin of Property (1985) 52 University
of Chicago Law Review 73-88 79-82. See also the discussion under utilitarianism in section 4.4.4 above.
246
Nonetheless, the main problem of attempting to justify acquisitive outlaws is in justifying
those situations where the adverse possessor knows that he is occupying the land of another
because the possessor either does not or cannot acquire it through voluntary transfer. Under
these circumstances it is indeed hard to argue that the behaviour of the squatter is of
informational or any other social value.607 In this sense Pealver and Katyal state that, even
though a squatter may act out of greed and self-interest (mala fides), it would be justified to
award ownership to him through prescription in terms of objective distributive justice if the
squatter had real need of the land.608 Nevertheless, this justification in cases of need should
not be interpreted as only including squatters who would otherwise starve or suffer harm. It
can also encompass broader needs, such as that property is needed to facilitate a minimally
acceptable degree of participation in social life, as well as the advancement of human
flourishing in accordance with Radins personality theory.609
Adverse possession can also be justified by other non-utilitarian means, according to

Pealver and Katyal. For instance, the adverse possessor is normally a poor person, but
someone who is willing to invest labour to improve the property of a neglecting owner.610
The squatter then puts the property to efficient use, while the property must be sufficiently
unimportant to the owner for him to allow this state of affairs to continue for the entire
limitation period.611 Another consideration even in cases involving the mala fide adverse
607
1186 1152-1153.
608
1186 1153-1154. See similarly Alexander GS The Social-Obligation Norm in American Property Law (2009)
94 Cornell Law Review 745-820 768. See further Van der Walt AJ Property in the Margins (2009) 184-185;
of Urban Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260 253.
609
1186 1156; Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 968-969; Radin MJ
Time, Possession, and Alienation (1986) 64 Washington University Law Quarterly 739-758 745-747; Radin
MJ Reinterpreting Property (1993) 1. Justifying adverse possession or prescription on grounds of social justice
falls outside the scope of this dissertation and will therefore not be investigated here. For a list of sources in this
regard, see those cited by Van der Walt AJ Property in the Margins (2009) 184-185; Pealver EM & Katyal SK
Property Outlaws (2007) 155 University of Pennsylvania Law Review 1095-1186 1153-1158. The social-
obligation theory developed by Alexander GS The Social-Obligation Norm in American Property Law (2009)
94 Cornell Law Review 745-820 offers another interesting take on the advancement of human flourishing.
610
1186 1170.
611
1186 1170; Miceli TJ, Sirmans CF & Turnbull GK Title Assurance and Incentives for Efficient Land Use
(1998) 6 European Journal of Law and Economics 305-323 310-311. See also Fennell LA Efficient Trespass:
The Case for Bad Faith Adverse Possession (2006) 100 Northwestern University Law Review 1037-1096
1064, 1077; Cooter R & Ulen T Law and Economics (4th ed 2004) 155; Dixon M The Reform of Property Law
and the Land Registration Act 2002: A Risk Assessment 2003 Conveyancer 136-156 151-152; Baker M,
247
possessor is the view that it is not wrong to appropriate someone elses surplus property in
order to provide for ones own need when viable legal alternatives are not available.612
These grounds Pealver and Katyal advance indeed provide persuasive reasons for allowing
the mala fide possessor in the framework of prescription.
Finally, I turn to the assessment of bad faith prescription according to the personality theory.
Radin thinks that the personality theory cannot accommodate bad faith prescription.
According to her, it is unclear how property possessed in bad faith can become constitutive of
someones personhood if the possessor does not bona fide believe that he is the owner of it.613
In other words, she casts doubt as to how a bad faith squatter can become strongly enough
bound up with property to justify the squatters personal interest trumping the owners
fungible interest. However, Hegel seems to deem the subjective intent of the possessor as
irrelevant, since the Hegelian personality theory on which Radin built her theory merely
requires an investment of the will into an object, coupled with possession.614 In this context
Hegels view can justify acquisition of ownership through bad faith prescription. Still, even if
one assumes that this point is insufficient to include the mala fide possessor in Radins
personality theory, regard must be had to the arguments that Cobb and Fox, Pealver and
Katyal and Fennell put forward, as discussed above. All these authors provide convincing
reasons as to why mala fide possessors should be permitted in the framework of prescription,
Possession Statutes (2001) 77 Land Economics 360-370 360; Merrill TW Property Rules, Liability Rules, and
Adverse Possession (1985) 79 Northwestern University Law Review 1122-1154 1130-1131; Rose CM
Possession as the Origin of Property (1985) 52 University of Chicago Law Review 73-88 79-82, all of whom
argue that adverse possession encourages productive and efficient land use. Pealver and Katyal at 1170 use this
example in US law to justify adverse possession with seven or 10-year limitation periods.
612
1186 1170. See also Fennell LA Efficient Trespass: The Case for Bad Faith Adverse Possession (2006) 100
Northwestern University Law Review 1037-1096 1080-1083. Although acknowledging criticism pertaining to
adverse possession, Pealver and Katyal think that the stringent requirements of this legal institution help
adverse possession to get around these problems. Indeed, they are of the opinion (at 1170-1171) that the
period and requirements for adverse possession should be relaxed in our modern era of technology concerning
property monitoring, so that this legal rule can better fulfil its redistributive function. This statement is
remarkable, as sections 3.2.2.1 and 3.2.2.3.2.3 of chapter three above illustrate that some of the requirements for
adverse possession such as the animus possidendi requirement and the length of the limitation period are less
stringent that those of prescription in the civil law systems.
613
Posner RA Economic Analysis of Law (6th ed 2003) 78 footnote 3 relying on Holmes OW The Path of the
Law (1897) 10 Harvard Law Review 457-478 477 is also of the opinion that only good faith adverse
possession will be accommodated in this sense.
614
Hegel GWF Outlines of the Philosophy of Right (1821, Houlgate S ed 1952) para 64, read with paras 51-52;
248
which is also applicable in the context of the personality theory.615 For instance, an urban
squatter will always be aware of the fact that the property he occupies is the property of
another and hence such a squatter will always be in bad faith.616 Yet, despite the mala fides of
these squatters, an argument is to be made that urban and even rural squatters indeed
become as attached to occupied property as legal owners of homes become to their houses.617
In this context it is possible that the occupied property starts to be constitutive of the
squatters personhood, despite him being in bad faith.
4.6 Conclusion
This chapter investigates the traditional justifications behind prescription in Roman-Dutch,
South African, Dutch and French law. Although these systems mainly provide two grounds
for justifying prescription, namely the promotion of legal certainty and the punishment of
neglectful owners, these rationales seem to fall short when compared to the justifications that
English law provides for adverse possession. This shortcoming is illustrated by the number of
justifications taken into consideration in the recent re-evaluation and reform of English
adverse possession law. Although certain English law justifications are similar to those found
in the four civil-law jurisdictions618 mentioned, Dockray advances persuasive reasons as to
why the effects of adverse possession ought to be limited. Although Dockray identifies the
strongest reason for adverse possession as that is helps to ascertain ownership in unregistered
land, which is analogous to the legal certainty argument in South Africa, the English Law
Commission reasons that this rationale does not carry weight when the register provides
conclusive proof of ownership. Therefore, it decided to abolish adverse possession
regarding registered land.
615
Registration Act 2002 (2007) 27 Legal Studies 236-260; Pealver EM & Katyal SK Property Outlaws (2007)
155 University of Pennsylvania Law Review 1095-1186; Fennell LA Efficient Trespass: The Case for Bad
Faith Adverse Possession (2006) 100 Northwestern University Law Review 1037-1096.
616
Urban Squatting after the Land Registration Act 2002 (2007) 27 Legal Studies 236-260 253.
617
See especially Cobb N & Fox L Living Outside the System? The (Im)morality of Urban Squatting after the
Land Registration Act 2002 (2007) 27 Legal Studies 236-260 and Fox L Conceptualising Home: Theories, Law
and Policies (2007) 300-303 in this regard.
618
South African law has a mixed legal system and not a civil law system in the formal context of the term. Yet,
South African property law of which prescription law forms part is much nearer to the civil law tradition
than to the common law.
249
I indicate that this approach by the Law Commission is flawed because it failed to take into
account certain key moral and economic arguments. Consequently, this chapter relies on
Lockes labour theory, Radins personality theory, and utilitarianism and law and economics
theory to show that adverse possession still plays an important role in a modern legal system,
even regarding registered land. Although it is more difficult to justify having prescription in
countries with a positive registration system, prescription clearly fulfils an important
corrective and economic function in jurisdictions with a negative registration system, since it
promotes legal certainty and lowers transaction costs.
In terms of the labour theory, chapter four establishes that an adverse possessor can obtain a
labour theory claim in occupied property if he invests labour and effort in land that would
otherwise lie abandoned. Although the labour theory prima facie seems to prevent non-
consensual redistribution of ownership, one overcomes this problem by treating the owners
neglect of the property as quasi-abandonment. In this sense the property reverts to or remains
in the commons from where an adverse possessor is able to obtain a labour theory claim in it
through mixing labour with the land. Such an approach gains further support through certain
qualifications Locke builds into his theory, such as that it will only be a permissible method
of acquiring ownership as long as there remain enough unowned things in the commons.
Furthermore, Locke strongly disapproves of the waste or non-use of property and mentions
that property under these circumstances will remain in the commons from where others
will then be able to appropriate it. Furthermore, the labour theory seems to regard the
subjective mindset of the adverse possessor as irrelevant, since even a bad faith possessor is
capable of mixing labour with an object. Accordingly, the labour theory justifies both good
and bad faith adverse possession.
The second theory used to justify prescription is Radins personality theory, which regards
ownership of property as essential for human flourishing. She bases her theory on the
Hegelian personality theory, which entails that a person must invest his will into an object
together with possessing it before such person can obtain ownership. Radin develops her
theory through acknowledging that certain property is more important to the way we
constitute ourselves as humans (personal property) than property that does not serve this
purpose (fungible property). These two kinds of property relationships are located on a
continuum ranging from personal property at the one end to fungible property on the other. It
follows that if a person has a personal property interest in a thing it will trump the mere
250
fungible interest another person may have in that same object. This is how the personality
theory can justify prescription, since a possessor will normally treat possessed property as
personal property while the absent owner probably regards it only as fungible property.
Although it may not be simple to judge whether a possessor truly has a personal interest in
occupied property, certain factors such as the investment of time and labour into the
property serve as indications that the property is more constitutive to the possessors
personality than to that of the neglectful owner. Such a scenario justifies protecting the rights
of the long-term possessor over those of the absent owner. Singers reliance interest theory
strengthens this conclusion, since it entails that the settled interests or expectations of
squatters and third parties regarding property should enjoy protection if they existed for a
long time. The personality theory finds further support in Alexanders social-obligation norm,
which obliges owners to help others in their community to develop their capabilities for
attaining human flourishing.
Finally, I employ utilitarianism and law and economics theory to justify prescription. These
two theories are discussed together, since both aim to maximise utility, albeit in different
contexts. Classic utilitarianism according to Bentham attempts to maximise utility or
happiness for the greatest number of people. Although this approach can lead to instances
that justify minorities to suffer pain or injustice, one overcomes this problem through using
Mills suggestion of coupling utility with justice, which is achieved through identifying and
then eliminating instances of injustice. One can use Mills theory of utilitarianism to justify
the transfer of ownership to a long-term possessor if it would cause greater justice to permit
the absent owner to reclaim the property after having left it idle for long periods of time.
Rule-utilitarianism embodies this approach, since it attempts to maximise utility in the long
run through laying down certain rules (like prescription).
The second leg of the utilitarian justification is law and economics theory, which aims to
structure the law to promote economic efficiency. The Coase theorem is central to law and
economics theory and entails that voluntary exchange occurs in settings where transaction
costs are low. Conversely, the law must provide ways to help reallocate scarce resources
when high transaction costs prevent the occurrence of voluntary exchange. It follows that
prescription will be economically justified if it promotes the shifting of resources to higher-
valuing users by sufficiently lowering transaction costs. For this purpose I investigate the
costs of prescription pertaining to the owner, the possessor, third parties and litigation. This
251
chapter concludes that prescription reduces transaction costs with the lengthening of the
prescription period in all four these contexts. Prescription especially reduces search and
inspection costs in a negative registration system that does not guarantee the correctness of
the register. In this regard prescription clears titles and promotes legal certainty, since one can
disregard (incorrect) information contained in the register that predate the period of
prescription. However, this justification carries less weight in a positive registration system,
which explains the presence of the strict requirements for prescription and adverse possession
in German and English law. Consequently, prescription succeeds to shift property to higher-
valuing users that would otherwise be prevented due to high transaction costs, especially if it
operates as a mechanical entitlement determination rule as suggested by Merrill.
Finally, chapter four indicates that the arguments against bad faith adverse possession are
founded on incorrect reasoning, for it shows that sound reasons exist to disregard the
distinction between bona fides and mala fides. To establish this point, I rely on the conclusion
that the apparently simple distinction between good faith and bad faith is based on the fallacy
that all adverse possessors who knowingly or advertently possess the property of others are
morally reprehensible. This assumption is incorrect, as seen in the cases where urban
squatters who have no alternative accommodation occupy unused property out of
necessity. Fennell points out the misleading distinction between good and bad faith through
focusing on the difficulty to determine whether someone is truly an advertent or inadvertent
possessor. She furthers her argument through disentangling the way law and morality is
conflated in the word thief. Fennell concludes that it is not the mere acquisitive thoughts of
the possessor that pains or dispossesses the owner, but rather governmental action in the
form of prescription that takes ownership away. In this sense Fennell indicates that if we
want to prevent owners from experiencing this pain, then we have to completely abolish
adverse possession and not merely limit it to cases of bona fide possession.
Pealver and Katyal also provide convincing reasons for allowing bad faith prescription by
focusing on the role that acquisitive [property] outlaws play in shaping US property law.
These authors acknowledge like Radin that property is important to our individual
identity, since it extends our capacity to live as human beings. In this sense mala fide
possessors fulfil an important role, since they generate information as to the inefficient
distribution of property rights in society. Accordingly, (bad faith) prescription qualifies as a
medium to affect social welfare if the law allows the (bad faith) possessor who is normally
252
poor and marginalised to obtain ownership over property from the abundance of a (wealthy)
owner. Pealver and Katyal require that the law must protect long-existing property
relationships if it contributes to a persons participation in the ownership system and in
society, which participation will be detrimentally affected if such person cannot acquire
ownership through prescription. Consequently, these authors acknowledge that prescription
helps to reallocate resources to higher-valuing users when high transaction costs would
otherwise prevent it. In this context one of the stronger justifications for adverse possession is
that it affects social welfare through the redistribution of property.
The next chapter focuses on the constitutionality of prescription in the context of South
African constitutional law. The conclusions drawn in this chapter play in integral role in my
arguments to establish that prescription does not infringe the South African property clause.
253
CHAPTER 5: ACQUISITIVE PRESCRIPTION IN VIEW OF THE PROPERTY
CLAUSE
5.1 Introduction
The previous chapter showed that there are valid moral and economic reasons to have
acquisitive prescription (prescription) in a legal system, especially in countries with a
negative registration system.1 Nonetheless, arguments to the contrary also exist, as was seen
with the English Law Commissions Reports2 and the litigation surrounding the Pye case in
the United Kingdom and the European Court of Human Rights in Strasbourg.3 Indeed, it
cannot be denied that prescription has drastic effects, considering it extinguishes ownership
on the side of the owner.4
In previous chapters I discuss the requirements for prescription in South African law,5 as well
as Dutch, French and German law.6 The requirements for prescription in Dutch and French
law have interesting similarities with those of South African law, particularly since all these
systems require possessors to possess property animo domini.7 This is contrary to English
adverse possession law, where the possessor merely has to possess the property animo
possidendi.8 As shown earlier, this is a vital difference between prescription and adverse
possession.9
Chapter four highlights the objections to adverse possession in English law, which led to the
enactment of the Land Registration Act 2002 (LRA or 2002 Act).10 This Act effectively
abolished adverse possession in English law concerning registered land, as it was found that
1
See especially section 4.4.4 of chapter four above.
2
Land Registration for the Twenty-First Century: A Conveyancing Revolution Number 271 (July 2001); Land
Registration for the Twenty-First Century: A Consultative Document Number 254 (September 1998).
3
[2001] Ch 804; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419. These cases are discussed in section 3.2.3 of
chapter two above. The two decisions by the European Court of Human Rights are reported as JA Pye (Oxford)
Ltd v United Kingdom (2006) 43 EHRR 3 (IV) and JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45
(GC), both of which are discussed in section 5.3.2.4.2 below.
4
For the requirements in South African law, see sections 2.3.1-2.3.2 of chapter two above. For the requirements
of this legal institution in English, Dutch, French and German law, see sections 3.2, 3.3, 3.4 and 3.5 respectively
in chapter three above.
5
See sections 2.3.1-2.3.2 of chapter two above.
6
See sections 3.3, 3.4 and 3.5 respectively of chapter three above.
7
With the intention of an owner: See section 2.3.2.1.1 of chapter two (South African law) and sections 3.3.2.2.1
and 3.4.2.1 of chapter three (Dutch and French law) above.
8
With the intention to possess: See section 3.2.2.3.2.3 of chapter three above.
9
See sections 3.2.2.3.2.1 and 3.2.2.3.2.3 of chapter three above.
10
See section 4.3.2 of chapter four above.
254
the traditional justifications for adverse possession do not carry weight if the register provides
conclusive proof of title.11 This position is similar to German law, which also has a positive
registration system.12 Nonetheless, three liberal property theories were considered to justify
having adverse possession or prescription in modern legal systems.13 These theories are
Lockes labour theory, Radins personality theory and utilitarianism and law and economics
theory, which theories play a vital role in justifying prescription in view of section 25 of the
Constitution of the Republic of South Africa 1996 (the Constitution).14
Since prescription results in the extinguishment of ownership on the side of the owner, its
implications in terms of the property clause must be considered, as section 25 provides for
legitimate state interference with property. In view of this section, prescription may either
amount to an arbitrary deprivation in terms of section 25(1) or an uncompensated
expropriation under section 25(2)-(3), both of which would be unconstitutional. First
National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and
Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance (FNB)15
provides a framework within which this chapter assesses the effects of prescription. I also
consider the possibility that prescription may possibly amount to constructive
expropriation.
Some legal systems, such as Dutch and French and perhaps also United States (US) law16
distinguish between good and bad faith possessors in the context of prescription. It was
indicated in chapter four that this distinction is based on incoherent reasoning and false
preconceptions of the differences between bona and mala fide possessors.17 Accordingly, it is
irrelevant to distinguish between these two kinds of possessors for purposes of the section 25
analysis.
11
See sections 4.3.2-4.3.3 of chapter four above.
12
See section 3.5 of chapter three above.
13
See section 4.4 of chapter four above. For the application of these theories in this chapter, see section
5.3.2.4.1 below.
14
See section 5.3.2.4 below.
15
2002 (4) SA 768 (CC).
16
For the position in Dutch and French law, see sections 3.3.2.2.2-3.3.2.2.3 (for Dutch law) and section 3.4.2.2
(for French law) of chapter three above. This issue is not clear-cut in US law: See Helmholz RH Adverse
Possession and Subjective Intent (1984) 61 Washington University Law Quarterly 331-358; Helmholz RH
More on Subjective Intent: A Response to Professor Cunningham (1986) 64 Washington University Law
Quarterly 65-106, together with the discussions in sections 4.4.4 and 4.5 of chapter four above.
17
See section 4.5 of chapter four above.
255
5.2 Analysis of the effects of acquisitive prescription
The section 25 analysis of prescription requires a brief overview of the functioning of this
rule in South African law.18 Two pieces of legislation regulate prescription in South African
law, namely the Prescription Act 18 of 1943 (1943 Act) and the Prescription Act 68 of
1969 (1969 Act). Both of these acts provide that a possessor acquires ownership ex lege
over someone elses property if she has been in open, continuous and undisturbed possession
animo domini of that property for 30 years.19
Pienaar v Rabie20 is a classic example that illustrates the harsh effects prescription can have
in practice. I use the facts of this case for two reasons. Firstly, it serves as the factual situation
to investigate prescription in terms of section 25. Secondly, this case has notable similarities
with the facts of JA Pye (Oxford) Ltd v United Kingdom.21
The litigants in Pienaar v Rabie22 were the owners of two neighbouring farms in the district
of Windhoek in Namibia. Although the boundaries of the farms were fenced, it appeared that
a certain part of the appellants farm consisting of 179 hectares was fenced in as part of
the respondents land by mistake. Neither party had knowledge of this error. The Court a quo
found that the respondent indeed acquired ownership through prescription. The fact that the
respondent satisfied the requirements for prescription was not challenged on appeal.23
However, on appeal the appellant averred that a claim based on prescription could not
succeed if there was no negligence on the side of the owner. The Appellate Division of the
Supreme Court, as it then was, conducted an extensive analysis of the sources and
justifications for prescription in Roman-Dutch and South African law. It concluded that the
absence of negligence does not constitute a defence against a prescription claim because
18
See chapter two above for a more comprehensive discussion pertaining to prescription in South African law.
19
Section 2(1)-(2) of the Prescription Act 18 of 1943 and section 1 of the Prescription Act 68 of 1969. The
requirements for prescription in South African law are discussed in greater detail in sections 2.3.1-2.3.2 of
chapter two above.
20
1983 (3) SA 126 (A).
21
(2008) 46 EHRR 45 (GC). The facts of this case are discussed in section 3.2.3.2 of chapter three above and
are therefore not repeated here.
22
1983 (3) SA 126 (A).
23
Pienaar v Rabie 1983 (3) SA 126 (A) 134. The respondent was found to have possessed the property with the
necessary possessio civilis, which possession was also nec vi, nec clam and nec precario, as required by section
2(1) of the Prescription Act 18 of 1943.
256
negligence is not a requirement for prescription.24 Accordingly, the Appellate Division
confirmed that the respondent had acquired the land through prescription.
This case emphasises the impact prescription can have in practice, since the appellant in this
context lost a substantial 179 hectares of farmland. This, coupled with the fact that
prescription can run even in the absence of negligence, emphasises the necessity to analyse
this legal institution in terms of the property clause.
5.3 Constitutional analysis of the effects of acquisitive prescription in terms of the

FNB methodology
5.3.1 Introduction
The South African property clause section 25 of the Constitution can be divided into two
main parts, namely protective provisions (section 25(1)-(3), read with section 25(4)) and
reform provisions (section 25(5)-(9), read with section 25(4)).25 This division illustrates a
tension within section 25, which aims to both protect existing property rights and to achieve
transformation in the form of land and other reforms. Yet, it is possible to read section 25 as a
coherent whole and to view it as constituting a creative tension, without falling prey to
conflicting interpretations.26 To this end it is necessary to interpret the property clause
purposively.27 This much is clear, as the Constitutional Court states that section 25 must be
viewed as part of a comprehensive and coherent Bill of Rights in a comprehensive and
coherent constitution.28
Section 39 of the Constitution determines how courts should interpret the Bill of Rights as
well as legislation. It provides as follows:
24
Pienaar v Rabie 1983 (3) SA 126 (A) 138-139.
25
Van der Walt AJ Constitutional Property Law (2005) 12-13. Van der Walt at 12 further divides these two
parts into four clusters of provisions, namely deprivation (section 25(1)), expropriation (section 25(2)-(3)),
interpretation (section 25(4)) and land and other reforms (section 25(5)-(9)).
26
Van der Walt AJ Constitutional Property Law (2005) 17-18.
27
Van der Walt AJ Constitutional Property Law (2005) 17, 22-42. The Constitutional Court has indicated that it
will interpret the Constitution purposively; see for instance Port Elizabeth Municipality v Various Occupiers
2005 (1) SA 217 (CC) paras 14-23; First National Bank of SA Ltd t/a Wesbank v Commissioner, South African
Revenue Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA
768 (CC) paras 63-64; Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and Works,
Gauteng Provincial Government, and Another 2009 (6) SA 391 (CC) para 48. See also Ex parte Chairperson of
the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996
(4) SA 744 (CC) paras 47-50.
28
257
1. When interpreting the Bill of Rights, a court, tribunal or forum
a) Must promote the values that underlie an open and democratic society based on human
dignity, equality and freedom;
b) Must consider international law; and
c) May consider foreign law.
2. When interpreting any legislation ... every court ... must promote the spirit, purport and
objects of the Bill of Rights.
Section 8(2) of the Constitution provides that a provision in the Bill of Rights binds both
natural and juristic persons. Section 8(4) states that juristic persons are entitled to rights
contained in the Bill of Rights to the extent required by the nature of the rights and the
nature of that juristic person. In terms of section 8(4) the Constitutional Court held in FNB
that juristic persons such as public companies are entitled to the property rights under
section 25.29 Therefore, both private individuals and juristic persons are beneficiaries of the
property rights in section 25.
This raises the issue of the vertical and horizontal application of the Bill of Rights, since
prescription occurs almost exclusively through the actions of private parties. Vertical
application of the Bill of Rights relates to the vertical relationship between an individual
and the state, which imposes a duty on all state branches to respect the provisions of the Bill
of Rights.30 Direct horizontal application entails that individuals can rely directly on a
provision in the Bill of Rights to protect themselves against abuses of their rights through the
conduct of others.31 This distinction may prima facie seem to denote horizontal application of
the Bill of Rights in the context of prescription, since prescription cases invariably relate to
the actions (possession) of a possessor over the property of an owner. The owner loses
ownership the moment the possessor satisfies all the requirements for prescription, while
ownership is protected by section 25. However, closer analysis indicates that prescription
does not, in fact, entail horizontal application of section 25 but rather direct vertical
application. According to section 8(1) of the Constitution, the Bill of Rights applies to all
law, and binds the legislature. Furthermore, section 39(2) of the Constitution stipulates that
[w]hen interpreting any legislation every court must promote the spirit, purport and
objects of the Bill of Rights. Therefore, legislation enacted by Parliament such as the
29
First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 45. See also Ex
parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of
South Africa, 1996 1996 (4) SA 744 (CC) para 57.
30
Currie I & De Waal J Bill of Rights Handbook (5th ed 2005) 43.
31
258
prescription acts must comply with the Bill of Rights.32 The prescription acts provide that a
possessor acquires ownership over immovable property possessed for a period of 30 years.33
It is not through the actions of the possessor alone that she acquires ownership, but through
the empowering legislation, namely the prescription acts. Although the state seems to play no
direct role in the context of prescription cases, it does so indirectly through its enactment of
the two prescription acts that provide for the acquisition of ownership in this regard.34
Through the prescription acts the state awards ownership to the possessor once all the
requirements are met, while taking ownership away from the owner. Thus, a section 25
attack on prescription will not target the actions of the possessor, but rather the legislation
that allows for the extinguishment of ownership on the side of the owner. Accordingly,
prescription is an instance of vertical and not horizontal application of section 25.
5.3.2 FNB methodology

In the leading Constitutional Court judgment on the property clause to date,35 namely the
FNB decision, the Court set out a seven-stage methodology for adjudicating section 25
disputes. Ackermann J set out these seven stages as follows:
(a) Does that which is taken away from [the property holder] by the operation of [the law in
question] amount to property for purpose of s 25?
(b) Has there been a deprivation of such property by the [organ of state concerned]?
(c) If there has, is such deprivation consistent with the provisions of s 25(1)?
(d) If not, is such deprivation justified under s 36 of the Constitution?
(e) If it is, does it amount to expropriation for purpose of s 25(2)?
(f) If so, does the [expropriation] comply with the requirements of s 25(2)(a) and (b)?
(g) If not, is the expropriation justified under s 36?36
32
33
Subject to the other requirements also being met; see sections 2.3.1-2.3.2 of chapter two above.
34
The European Court of Human Rights in JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV) para
56 and JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC) para 57 reached an interesting
conclusion in this regard. It found that although the state does directly interfere with property rights through
adverse possession (or prescription), the actions of the possessor through obtaining ownership are ascribed
to the state, which triggers Article 1 of Protocol No 1 to the European Convention for the Protection of Human
Rights and Fundamental Freedoms 1950.
35
Nkabinde J describes this decision as the leading judgment regarding the property clause in Reflect-All 1025
CC and Others v MEC for Public Transport, Roads and Works, Gauteng Provincial Government, and Another
2009 (6) SA 391 (CC) para 35.
36
I formulate the questions of the FNB case as set out by Roux T Property in Woolman S, Roux T & Bishop
M (eds) Constitutional Law of South Africa (2nd ed 2003 original service Dec 2003) 46-3 (footnotes omitted).
These questions were originally set out in First National Bank of SA Ltd t/a Wesbank v Commissioner, South
African Revenue Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002
(4) SA 768 (CC) para 46.
259
In what follows, this chapter analyses prescription in the framework of the FNB methodology
to determine whether it is in line with section 25.37
5.3.2.2 Does that which is taken away amount to property for purpose of
section 25?
The first question that concerns the constitutionality of prescription is whether the affected
interest amounts to property that should enjoy constitutional protection. The Constitutional
Court in FNB only briefly touched on this issue, since Ackermann J declined to provide a
comprehensive definition of property for purposes of s[ection] 25, for he claimed that such
an endeavour would be judicially unwise and practically impossible.38 Yet, the Court
acknowledged that ownership of corporeal movables, together with land ownership, must ...
lie at the heart of our constitutional concept of property.39 This dictum, read with section
25(4)(b)40 of the Constitution, makes it clear that section 25 must apply to cases that involve
ownership of land. In the context of prescription, an owner loses her land a corporeal
immovable to a possessor who has been in possession of that land for 30 years and who has
also satisfied all the requirements as set out by the prescription acts.41 It follows that the
affected interest is ownership in land, since the owner loses such ownership in its totality
should a possessor satisfy the requirements for prescription.
Since this dissertation only focuses on prescription pertaining to land, it is unnecessary to

consider whether property also encompasses other property interests such as incorporeal
property. Nonetheless, Van der Walt convincingly argues that this latter form of property
37
This methodology was followed in Offit Enterprises (Pty) Ltd and Another v COEGA Development
Corporation (Pty) Ltd and Others 2011 (1) SA 293 (CC); Reflect-All 1025 CC and Others v MEC for Public
Transport, Roads and Works, Gauteng Provincial Government, and Another 2009 (6) SA 391 (CC); Mkontwana
v Nelson Mandela Metropolitan Municipality and Another; Bissett and Others v Buffalo City Municipality and
Others; Transfer Rights Action Campaign and Others v MEC, Local Government and Housing, Gauteng, and
Others (KwaZulu-Natal Law Society and Msunduzi Municipality as Amici Curiae) 2005 (1) SA 530 (CC) and
Nhlabathi and Others v Fick [2003] 2 All SA 323 (LCC). Regarding the interesting application of this
methodology in Mkontwana, see Van der Walt AJ Constitutional Property Law (2005) 155-160. For a case
where the FNB methodology was not followed, see Du Toit v Minister of Transport 2006 (1) SA 297 (CC).
38
39
40
For purposes of [section 25] property is not limited to land.
41
The requirements for prescription in South African law are discussed in sections 2.3.1-2.3.2 of chapter two
above.
260
interests ought to be regarded as constitutional property and should thus also enjoy
constitutional protection.42 This is clear from the following passage:
For purposes of section 25 property can therefore relate to a wide range of objects both
corporeal and incorporeal, a wide range of traditional property rights and interests both real and
personal, and a wide range of other rights and interests which (in the civil-law tradition) have
never been considered in terms of property before.43
Furthermore, in FNB the Court found that it is irrelevant whether an owner makes limited or
no use of an object for purposes of categorising that thing as constitutional property.44 This is
especially relevant in the context of prescription, where an owner may have allowed a
possessor to possess her land for 30 years. Even in such a case the ownership in land will
qualify as constitutional property, no matter how the owner used (or did not use) the property.
From this discussion it is plain that the property interest in the context of prescription, namely
ownership in land, amounts to property for purposes of section 25.
5.3.2.3 Has there been a deprivation of property?

In FNB, Ackermann J attached a wide meaning to deprivation by describing it as any
interference with the use, enjoyment or exploitation of private property.45 The Court went
further and found that [d]ispossessing an owner of all rights, use and benefit to and of
corporeal movable goods, is a prime example of deprivation in both its grammatical and
contextual sense.46 In this situation the Constitutional Court distinguished between
deprivation and expropriation and held that all interferences with property qualify as
deprivation, while only some deprivations amount to expropriation.47 Against this
background expropriation is seen as a sub-species of deprivation. Consequently, should an
42
43
Van der Walt AJ Constitutional Property Law (2005) 77.
44
First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 54. Yet, this fact
may be taken into consideration during the stage where one has to decide whether the deprivation is arbitrary or
possibly justifiable under section 36(1). I return to this issue in section 5.3.2.4 below.
45
46
47
First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 57. This
interpretation of the difference between deprivation and expropriation does not contradict Harksen v Lane NO
and Others 1998 (1) SA 300 (CC), although it is more nuanced: See Van der Walt AJ Striving for the Better
Interpretation A Critical Reflection on the Constitutional Courts Harksen and FNB Decisions on the Property
Clause (2004) 121 South African Law Journal 854-878 867-869.
261
interference not pass the scrutiny of section 25(1) and such interference is not capable of
being justified under section 36(1), then that is the end of the matter and the impugned law
will be declared unconstitutional.48 The question of whether the interference could possibly
be in line with section 25(2)-(3) then never arises. Thus, the starting point for any
constitutional inquiry as to whether there was an infringement of section 25 rights must
always start with section 25(1).49 This methodology makes it unnecessary to initially
distinguish between deprivation and expropriation regarding a section 25 dispute. It only
becomes necessary to consider whether prescription amounts to expropriation in terms of
section 25(2)-(3) under two circumstances, namely if
i) the deprivation is found to be in line with section 25(1); or

ii) should it not be in line with section 25(1), if it is capable of being justified under
section 36(1).50
This initial wide meaning given to deprivation in FNB appears, however, to have been altered
in subsequent decisions of the Constitutional Court.51 In Mkontwana v Nelson Mandela
Metropolitan Municipality and Another; Bissett and Others v Buffalo City Municipality and
Others; Transfer Rights Action Campaign and Others v MEC, Local Government and
Housing, Gauteng, and Others (KwaZulu-Natal Law Society and Msunduzi Municipality as
Amici Curiae) (Mkontwana),52 the Constitutional Court seemed at first to follow the
approach in FNB of what constitutes a deprivation, as it confirmed that the taking away of
property is not required for a valid deprivation.53 However, after this initial approach, Yacoob
48
49
50
First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 46. The possibility
that prescription can amount to expropriation is discussed in section 5.3.2.6 below.
51
See Offit Enterprises (Pty) Ltd and Another v COEGA Development Corporation (Pty) Ltd and Others 2011
(1) SA 293 (CC); Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and Works, Gauteng
Provincial Government, and Another 2009 (6) SA 391 (CC) and Mkontwana v Nelson Mandela Metropolitan
Municipality and Another; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action
Campaign and Others v MEC, Local Government and Housing, Gauteng, and Others (KwaZulu-Natal Law
Society and Msunduzi Municipality as Amici Curiae) 2005 (1) SA 530 (CC).
52
2005 (1) SA 530 (CC).
53
Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bissett and Others v Buffalo City
Municipality and Others; Transfer Rights Action Campaign and Others v MEC, Local Government and
Housing, Gauteng, and Others (KwaZulu-Natal Law Society and Msunduzi Municipality as Amici Curiae) 2005
(1) SA 530 (CC) para 32; First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue
Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC)
para 57.
262
J stated that whether or not there has been a deprivation depends on the extent of the
interference with or limitation of use, enjoyment or exploitation and that at the very least,
substantial interference or limitation that goes beyond the normal restrictions on property use
or enjoyment found in an open and democratic society would amount to deprivation.54 This
description of deprivation is problematic, especially because the use of the words normal
restrictions and substantial interference appear to limit the ambit of interferences that may
constitute deprivation. For the sake of clarity this definition should preferably be regarded as
a non-binding obiter dictum, as Yacoob J mentioned that the case before him did not require
him to determine what precisely constitutes deprivation.55 Van der Walt argues that it serves
no useful purpose to restrict the concept of deprivation to substantive or abnormal ...
regulatory deprivation.56 I agree with Van der Walt that this qualification in Mkontwana
should probably just be ignored57 and that it is preferable to opt for the wider definition in
FNB.58
However, the question as to what constitutes deprivation was further complicated by two later
Constitutional Court judgments concerning section 25, namely Reflect-All 1025 CC and
Others v MEC for Public Transport, Roads and Works, Gauteng Provincial Government, and
Another (Reflect-All)59 and Offit Enterprises (Pty) Ltd and Another v COEGA Development
Corporation (Pty) Ltd and Others (Offit).60 In its analysis of the deprivation issue the
Constitutional Court in Offit referred to the definitions in both FNB and Mkontwana and held
that Mkontwana expanded on the FNB approach.61 The Constitutional Court in Offit thus
unfortunately approved the interpretation adopted in Mkontwana. In Reflect-All, Nkabinde J
54
(1) SA 530 (CC) para 32.
55
(1) SA 530 (CC) para 32, where Yacoob J stated that [i]t is not necessary in this case to determine precisely
what constitutes deprivation. Despite this apparently stricter approach, Yacoob J proceeded to find that the
limitation placed on the alienation of property in this case did indeed amount to deprivation: See para 33.
56
57
58
First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 57. See also Van
der Walt AJ Constitutional Property Law (2005) 126-128.
59
2009 (6) SA 391 (CC).
60
2011 (1) SA 293 (CC).
61
Offit Enterprises (Pty) Ltd and Another v COEGA Development Corporation (Pty) Ltd and Others 2011 (1)
SA 293 (CC) paras 38-39.
263
also referred to FNB, after which she stated that that definition was expanded upon in
Mkontwana. 62 Fortunately, the Constitutional Court also emphasised seemingly with
approval the minority judgment by ORegan J in Mkontwana, where she stated that [i]f
one of the purposes of section 25(1) is to recognise both the material and non-material value
of property to owners, it would defeat that purpose were deprivation to be read narrowly.63
This position is in line with Van der Walts argument, namely that it would be unwise to
unnecessarily restrict the meaning of deprivation for purposes of constitutional property
law.64
Prescription clearly does not result in the loss of only one or two instances of ownership, but
affects ownership in its entirety. Should the wide approach towards deprivation as
formulated in FNB be applied to prescription, it must clearly constitute deprivation. This
finding remains the same even if one applies the narrower definition set out in Mkontwana.
The reason for this conclusion is that an interference that causes the loss of full ownership
must surely amount to a substantial interference ... that goes beyond the normal restrictions
on property use or enjoyment found in an open and democratic society.65 Chapter five bases
this assumption on the fact that the Constitutional Court in both Mkontwana66 and Reflect-
All67 dealt with provisions that merely limited the owners entitlements and did not deprive
them of their ownership. In Mkontwana, the relevant entitlement was the right to alienate the
property while Reflect-All concerned the use, enjoyment and exploitation of property. Neither
of these cases concerned the loss of ownership as was the case in FNB. In light of this
approach prescription must amount to a deprivation in terms of the definition set out in
62
Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and Works, Gauteng Provincial
Government, and Another 2009 (6) SA 391 (CC) para 35.
63
Government, and Another 2009 (6) SA 391 (CC) para 36, quoted from Mkontwana v Nelson Mandela
Metropolitan Municipality and Another; Bissett and Others v Buffalo City Municipality and Others; Transfer
Rights Action Campaign and Others v MEC, Local Government and Housing, Gauteng, and Others (KwaZulu-
Natal Law Society and Msunduzi Municipality as Amici Curiae) 2005 (1) SA 530 (CC) para 89.
64
Van der Walt AJ Constitutional Property Law (2005) 127; Van der Walt AJ Constitutional Property Law
(2009) 3 Jutas Quarterly Review para 2.2.
65
(1) SA 530 (CC) para 32.
66
(1) SA 530 (CC) para 33
67
Government, and Another 2009 (6) SA 391 (CC) paras 37-38.
264
Mkontwana. A finding to the contrary would defeat the purpose68 of section 25(1), since it
serves no useful purpose to restrict the concept of deprivation to substantive or abnormal ...
regulatory deprivation.69
5.3.2.4 Is the deprivation in line with section 25(1)?

5.3.2.4.1 The position in South African constitutional law
As the previous section establishes that prescription constitutes deprivation, the next stage of
the inquiry concerns the question whether it is in accordance with section 25(1). Section
25(1) stipulates that a valid deprivation needs to comply with two requirements, namely that
(i) it must take place in terms of law of general application and that (ii) such law may not
permit arbitrary deprivation.
The first requirement entails that the deprivation must be in terms of law of general
application. Prescription in South African law is governed by the two prescription acts, more
specifically section 2(1)-(2) of the 1948 Act and section 1 of the 1969 Act. These sections
clearly amount to law of general application, especially since FNB provides authority that
legislative provisions such as section 114 of the Customs and Excise Act 91 of 1964
constitute law of general application.70 The prescription acts are also specific and accessible,
as is required by the constitutional provision.71 As this satisfies the first requirement in
section 25(1), it now has to be determined whether the deprivation is arbitrary.
Ackermann J found in FNB that the word arbitrary in section 25(1) refers to a situation
where the law of general application does not provide sufficient reason for the particular
68
(1) SA 530 (CC) para 89.
69
70
First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 61. See further
Van der Walt AJ Constitutional Property Law (2005) 143-144 and Roux T Property in Woolman S, Roux T
& Bishop M (eds) Constitutional Law of South Africa (2nd ed 2003 original service Dec 2003) 46-21.
71
Gildenhuys A Onteieningsreg (2nd ed 2001) 93; Van der Walt AJ Constitutional Property Law (2005) 143;
Roux T Property in Woolman S, Roux T & Bishop M (eds) Constitutional Law of South Africa (2nd ed 2003
original service Dec 2003) 46-21.
265
deprivation in question or is procedurally unfair.72 In other words, a deprivation is arbitrary
if there is not sufficient reason for it or if it is procedurally unfair.
FNB did not elaborate as to the meaning of procedural fairness in the context of section
25(1), but this aspect did enjoy attention in both Mkontwana and Reflect-All. In Mkontwana
the applicants challenged the constitutional validity of section 118(1) of the Local
Government: Municipal Systems Act 32 of 2000 for being in conflict with section 25(1).
Section 118(1) limits an owners right of alienation by stipulating that the Registrar of Deeds
may not register the transfer of property except on the production by the owner of a
prescribed certificate issued by the municipality.73 This certificate certifies that all
consumption charges in connection with the property also those ran up by occupiers other
than the owner have been paid in full during the two years preceding the certificates date
of issue.74 The applicants contended that section 118(1) was procedurally unfair as it did not
impose an obligation upon municipalities to keep owners informed of the amounts owing by
occupiers at reasonable intervals when requested by the owners in writing.75 Yacoob J stated
in his judgment that procedural fairness in the context of section 25(1) is a flexible concept
and that the question whether a deprivation is procedurally fair depends on all the
circumstances.76 The Constitutional Court found that the municipality need not furnish
owners with information on a continuous basis for the law to be procedurally fair, as this
would be costly and impractical.77 Furthermore, it held that owners are in a position to take
care of their property and to monitor the occupation and use of their property by themselves
72
First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 100; Reflect-All
1025 CC and Others v MEC for Public Transport, Roads and Works, Gauteng Provincial Government, and
Another 2009 (6) SA 391 (CC) para 39.
73
Section 118(1)(a) of the Local Government: Municipal Systems Act 32 of 2000.
74
Section 118(1)(b) of the Local Government: Municipal Systems Act 32 of 2000.
75
(1) SA 530 (CC) para 65.
76
(1) SA 530 (CC) para 65.
77
(1) SA 530 (CC) para 66.
266
as well as other occupiers.78 Consequently, section 118(1) was found not to be procedurally
unfair because municipalities are under no obligation to keep owners informed as to amounts
owing by them or occupiers of their property.
In Reflect-All the applicants averred that section 10(1) and 10(3) of the Gauteng Transport
Infrastructure Act 8 of 2001 arbitrarily deprived them of land contrary to section 25(1). These
provisions pertain to the planning of provincial roads and were challenged for imposing
restrictions on the use, enjoyment and exploitation of property owned by the applicants.79
Nkabinde J held that the answer to this question is determined by one of two aspects, namely
whether there exists sufficient reason for the deprivation and whether it is procedurally fair.80
As to the procedural fairness aspect, Reflect-All confirmed the approach adopted in
Mkontwana that it is a flexible concept that depends on all the circumstances.81 Regarding the
procedural fairness issue, the applicants based their case on two grounds. Firstly, they
complained that the Gauteng Transport Infrastructure Act 8 of 2001 allowed the relevant
authorities to proclaim route determinations without providing for any process by which the
applicants interests as landowners could be considered. Secondly, they claimed that the
relevant authorities should individually consider each preliminary design before deciding
whether it should be published or not. By making this claim they argued that failure to
reconsider the designs is procedurally unfair in that owners were not consulted regarding the
designs. The Constitutional Court ruled against them and decided that it would be
unrealistic, impractical and not in the public interest to adhere to the expectations of the
applicants.82
From the discussion of these two cases it follows that procedural fairness is always context-
and fact-specific. It is a flexible notion and its content is determined by the circumstances of
each case. In light of this it has to be decided whether the legal processes surrounding
78
(1) SA 530 (CC) para 66.
79
80
81
82
267
prescription are procedurally fair. This depends on the facts and circumstances of each case,
but it is clear that the majority of prescription cases involve a situation where a possessor
possessed the land of another for 30 years without the knowledge of the owner.83 The
possessor obtains ownership over the land ipso iure the moment all the requirements for
prescription are satisfied, while the owner loses her ownership over the land.84 However,
nothing prevents the owner from instituting court proceedings to contest the claim by the
possessor that she acquired ownership over the land. The owner is also granted a time frame
of 30 years to approach a court for an order to protect her ownership and evict the possessor
from her land. Apart from this, the owner need merely grant express or tacit permission to the
possessor to stop the running of prescription.85 Furthermore, a person must possess the land
animo domini for the whole duration of the prescription period, which is more difficult to
satisfy than the animus possidendi requirement in adverse possession law.86 In other words,
the law grants an opportunity to the owner to contest the claim by the possessor in court,
namely to prove that such possessor did not satisfy all the requirements for prescription. In
this sense it seems that the process by which prescription functions is procedurally fair.87
Apart from this the owner can still challenge the relevant provisions of the prescription acts
that allow prescription as being in conflict with section 25. Furthermore, an owner can also
lodge a case in terms of section 33, which concerns administrative justice. In terms of the
latter, the Promotion of Administrative Justice Act 3 of 2000 (PAJA) has been promulgated
to give effect to the constitutional mandate contained in section 33. However, an attempt to
have prescription reviewed in terms of section 6 of PAJA will be to no avail, since
prescription does not constitute administrative action. This is because prescription occurs ipso
iure; no discretion is exercised and hence no decision is taken.88 Thus, the only route open to
83
For purposes of this discussion it is assumed that the possessor satisfied all the requirements for prescription
as set out by the two prescription acts. The requirements for prescription are discussed in sections 2.3.1-2.3.2 of
chapter two above.
84
According to section 2(1)-(2) of the Prescription Act 18 of 1943 and section 1 of the Prescription Act 68 of
1969.
85
See section 2.3.2.4 of chapter two above for a more detailed discussion in this regard.
86
See section 2.3.2.1.1 of chapter two (for South African law) and compare it to section 3.2.2.3.2.3 of chapter
three (for English law) above.
87
This conclusion is analogous to the Grand Chambers decision in JA Pye (Oxford) Ltd v United Kingdom
(2008) 46 EHRR 45 (GC) para 80, where adverse possession was also found to be procedurally fair. This
finding was confirmed by the first minority in JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC)
paras O-I22 O-I23. However, the Fourth Chamber in JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR
3 (IV) paras 73-76 found that adverse possession does not provide adequate procedural protection. These
decisions are discussed in greater detail in section 5.3.2.4.2 below.
88
Section 1 of the Promotion of Administrative Justice Act 3 of 2000 defines administrative action as any
decision taken, or any failure to take a decision.
268
a person wishing to challenge the constitutional validity of prescription is through attacking
the relevant provisions of the prescription acts via section 25.
The second leg of the test for arbitrariness involves the question of whether the deprivation is
substantively arbitrary. In this regard the Constitutional Court has indicated that the
substantive arbitrariness test is contextual in nature and depends on the facts and
circumstances of each case.89 Accordingly, the test is context-specific. The term arbitrary
in section 25(1) is not limited to a mere rationality inquiry, but neither does it encompass a
fully fledged proportionality analysis as found in section 36(1).90 This is because the words
reasonable and justifiable, which denote a proportionality-based inquiry, are only found in
section 36(1) and do not appear in section 25(1). The severity or scope of the deprivation
determines whether the test for substantive arbitrariness will encompass a rationality- or
proportionality-like inquiry, these two concepts being located on two ends of a continuum.91
If a deprivation is found not to be substantively arbitrary, then it is constitutional and the
issue of whether it is justifiable under section 36(1) does not arise.92
According to FNB, a deprivation is substantively arbitrary if it does not provide sufficient

reason for the particular deprivation in question.93 Central to this inquiry is the relationship
between the deprivation in question, the purpose it seeks to achieve and the impact the
deprivation has on the use and enjoyment of property.94 It follows that there must be a
sufficient nexus between the reason(s) for the deprivation and the deprivation itself for it to
be non-arbitrary. Regarding the application of the arbitrariness test, FNB also found that the
validity of a deprivation depends on an appropriate relationship between means and ends,
89
90
91
First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) paras 66, 100; Reflect-
All 1025 CC and Others v MEC for Public Transport, Roads and Works, Gauteng Provincial Government, and
92
93
94
269
between the sacrifice the individual is asked to make and the public purpose this is intended
to serve.95 In paragraph 100 of his judgment, Ackermann J provides a list of factors that
should be considered when establishing whether sufficient reason is present. I now apply
these factors in the context of prescription.
According to the first factor, one has to evaluate the relationship between the means
employed and the ends or purpose sought to be achieved by prescription. Prescription entails
the acquisition of ownership on the side of the possessor together with the loss of
ownership on the side of the owner if such possessor has continuously been in possession of
the owners property for 30 years.96 In this sense it has long been accepted in South African
law that prescription promotes legal certainty, since it affords de iure status to long-existing
de facto situations.97 However, are the means employed in this context, namely the loss of
ownership, proportionate to the ends sought to be achieved, namely the promotion of legal
certainty? Chapter four indicates that prescription fulfils an important corrective function by
lowering transaction costs in systems with a negative registration system, where the law does
not guarantee the correctness of the register.98 Indeed, the Constitutional Court has indicated
that economic considerations do play a role in the adjudication of constitutional property
cases,99 which supports this justification for prescription in terms of utilitarianism and law
and economics theory.100 Though the means employed may seem harsh when compared to
the ends sought, one must remember that the grounds for succeeding with a claim based on
prescription in South African law are narrow and difficult to satisfy, especially in terms of the
animus domini requirement.101 This, coupled with the fact that an owner is granted up to 30
95
96
According to section 2(1)-(2) of the Prescription Act 18 of 1943 and section 1 of the Prescription Act 68 of
1969. For purposes of this discussion it is assumed that the possessor also satisfied the other requirements set
out by the prescription acts for prescription. These requirements are discussed more fully in sections 2.3.1-2.3.2
of chapter two above.
97
Pienaar v Rabie 1983 (3) SA 126 (A) 137-138. This issue is discussed in more detail in section 4.2.3 of
chapter four above.
98
This theme is discussed in greater detail in section 4.4.4 of chapter four above.
99
First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 45, where
Ackermann J found that if the property interests of juristic persons did not enjoy protection under section 25,
that it would have a disastrous impact on the business world. This approach clearly has undertones of
utilitarianism and law and economics theory.
100
The justifications for prescription in terms of utilitarianism and law and economics theory are discussed in
greater detail in section 4.4.4 of chapter four above.
101
This is largely due to the requirement that possession must be possessio civilis: See section 2.3.2.1 of chapter
two and compare it to the English law position in section 3.2.2.3.2 of chapter three above.
270
years to protect her property and to evict the possessor or grant permission,102 seems to create
a balance between the loss of ownership and the promotion of legal certainty. This position is
strengthened if one takes into consideration that owners need not develop or even occupy
their land to prevent the running of prescription; they merely have to periodically assert their
right to exclude others to prevent loss of ownership through prescription.103
The second factor requires a consideration of the complexity of relationships.104 In FNB the
relationships between the parties were quite complex. According to section 114 of the
Customs and Excise Act 91 of 1964, the South African Revenue Services could detain and
sell the appellants motor vehicles that were located on the premises of a tax debtor to satisfy
the debt of that tax debtor. As there was no relationship between the appellant and the tax
debtor regarding the debt the latter owed to the South African Revenue Services, Ackermann
J found section 114 to be substantively arbitrary, as it did not provide sufficient reason for the
loss of the appellants ownership to satisfy the debt owed by the tax debtor.105 In this context
the Court found that section 114 cast the net far too wide.106 The relationships that exist in
cases involving prescription are not nearly as complex as those in FNB, since prescription
involves a possessor in possession of the land of another. Even though the owner may not be
aware of the presence of the possessor, there is a direct link between the owner, the possessor
and the land lost and acquired, since the possessor is in possession of the owners property. In
this sense the link is the fact that the property lost is the property acquired, since the person
who acts as if owner (the possessor) replaces the one not acting as if owner (the
owner).107 Consequently, the owner loses the property through prescription because of her
inaction. Yet, it is true that owners in most prescription cases are not even aware of the
102
This will immediately cause prescription to stop running in favour of the possessor: See sections 2.3.2.4 and
2.3.3 of chapter two above.
103
This is in line with the duty of stewardship (as described by Cobb N & Fox L Living Outside the System?
253-256), as well as the social-obligation theory of Alexander GS The Social-Obligation Norm in American
Property Law (2009) 94 Cornell Law Review 745-820. The similarities between the duty of stewardship and
the social-obligation norm are addressed in section 4.4.3 of chapter four above. See further Fennell LA
Review 1037-1096 1077; Merrill TW Property Rules, Liability Rules, and Adverse Possession (1985) 79
Northwestern University Law Review 1122-1154 1130-1131; Rose CM Possession as the Origin of Property
(1985) 52 University of Chicago Law Review 73-88 79. See also section 4.4.4 of chapter four above.
104
105
106
107
For a discussion of the as if owner requirement, see section 2.3.2.4 of chapter two above.
271
presence of the possessor. This factor may be taken into consideration when the Court
performs the balancing of interests to determine whether the deprivation is justified or not.
Accordingly, one can conclude that there is a sufficient link between the owner and the
possessor in prescription cases.
The third factor requires the Court to focus on the relationship between the purpose for the
deprivation and the owner whose property is affected.108 This means that a court must
evaluate the relationship between the reasons for prescription and the owner who loses
ownership. Chapter four shows that the purpose of prescription is to promote legal certainty
by affording de iure status to long-existing de facto situations.109 This purpose mainly finds
support in utilitarianism and law and economics theory, which indicates that prescription
lowers transaction costs and maximises utility in countries with a negative registration
system.110 The negative value of the possibility that an owner may lose her property
inadvertently through prescription is balanced out by the long prescription period, which is 30
years in South African law.111 According to utilitarianism and law and economics theory, the
longer the prescription period, the more secure the ownership of the owner, since the owner
then has more time to discover the presence of a possessor in whose favour prescription may
be running.112 Michelmans concept of demoralisation costs strengthens this conclusion,113
since a possessor is likely to suffer increased demoralisation if she is evicted after being in
possession of the property for a long time.114 On the flipside, an owner is likely to suffer
decreased demoralisation the longer she is out of possession, which justifies a shifting of
ownership to the possessor after a sufficient period of time has elapsed.115 Nonetheless, the
price paid for achieving lower transaction costs and legal certainty is indeed substantial, since
108
109
Pienaar v Rabie 1983 (3) SA 126 (A) 137-138. For a more detailed discussion in this regard, see section
4.2.3 of chapter four above.
110
See section 4.4.4 of chapter four above for a more detailed discussion.
111
See section 4.4.4 of chapter four above for a more detailed discussion.
112
Posner RA Economic Analysis of Law (6th ed 2003) 80; Singer JW The Reliance Interest in Property
727-728. See further section 4.4.4 of chapter four above.
113
Compensation Law (1967) 80 Harvard Law Review 1165-1258 1214. This connection was made by Ellickson
RC Adverse Possession and Perpetuities Law: Two Dents in the Libertarian Model of Property Rights (1986)
64 Washington University Law Quarterly 723-737 727-728.
114
This concept is discussed in terms of Radins personality theory together with utilitarianism and law and
economics theory: See sections 4.4.3 and 4.4.4 respectively of chapter four above.
115
This is drawn from the conclusions in section 4.4.4 of chapter four above.
272
the owner loses full ownership in the property possessed by the possessor. Yet, if a possessor
possessed land belonging to another for a period of 30 years, it creates the impression that the
possessor and not the owner is the true owner of that property. After such a long time of
undisturbed possession, third parties together with the possessor are induced to believe
that the possessor is the actual owner and, accordingly, the law should protect the reliance
interest of these parties.116 One achieves this object if prescription awards ownership to the
possessor after she satisfies the requisite period of possession.117 In this sense prescription is
analogous to estoppel, which prevents an owner from vindicating her property in the hands of
another when such owner induces parties to believe, to their detriment, that such other person
is in fact the true owner.118 The fact that the possessor possessed the property animo domini
for 30 years without any interference from the owner, coupled with the negative registration
system in South African law, provides a strong nexus between the purpose of prescription and
the owner who loses her property.
Concerning the question whether the deprivation is substantively arbitrary, the Court must
look at all the factors/interests to arrive at a conclusion that is both just and equitable under
the circumstances. Factors that can be taken into account are the long period required before a
possessor can acquire ownership through prescription, the fact that the possessor actively
uses the property and the possibility that the owner has forgotten about or neglected the
property over a long time.119 Although this point is contested, this chapter establishes that
prescription encourages productive land use, ensures the marketability of land and lowers
transaction costs.120 This provides adequate justification for the effect that prescription has on
the deprived owner.
The fourth factor stipulates that regard must be had to the relationship between the purpose of
prescription and the nature of the property, together with the extent of the deprivation in
116
Singer JW The Reliance Interest in Property (1988) 40 Stanford Law Review 611-751. See further sections
4.4.3-4.4.4 of chapter four above.
117
118
Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoemans The Law of Property (5th ed 2006) 255.
The requirements for estoppel are not discussed here; see Badenhorst PJ, Pienaar JM & Mostert H Silberberg
and Schoemans The Law of Property (5th ed 2006) 255-260 for a more complete discussion in this regard.
119
These factors are discussed in more detail in section 4.4.4 of chapter four above.
120
Law Review 1122-1154 1129-1131; Epstein RA Past and Future: The Temporal Dimension in the Law of
Property (1986) 64 Washington University Law Quarterly 667-722 678. See further section 4.4.4 of chapter
four above.
273
respect of such property.121 As this dissertation only focuses on prescription in the context of
land, the purpose of this legal institution is to promote legal certainty and reduce transaction
costs regarding the ownership of land as a limited resource, which is vital for purposes of
agriculture and housing.122 This rationale must be balanced against the effect of prescription,
which results in the extinguishment of ownership in land.
The fifth factor states that where the property in question is ownership of land, a more
compelling purpose has to be established to constitute sufficient reason than would be
necessary if the deprivation is less intrusive.123 Since prescription extinguishes ownership in
land, it is clear that one has to advance more compelling reasons to establish sufficient reason
for the deprivation caused by this rule. Given that the affected entitlement was also
ownership in FNB, a similar approach to that decision is to be expected. The arguments that
this chapter advances under the first three factors also pertain to this factor.
According to the sixth factor, more compelling reasons have to be advanced for a deprivation
that embraces all the incidents of ownership than for a deprivation which only affects some
incidents of ownership.124 Prescription results in the loss of all the incidents of ownership on
the side of the owner. This confirms the conclusions under the previous factors that more
compelling reasons must be advanced to justify this legal institution in South African law.
These reasons are discussed under the first three factors and are, therefore, not repeated here.
The seventh factor determines that whether sufficient reason is established by either a
rationality- or proportionality-like inquiry depends on the interplay between variable means
and ends, such as the nature of the property in question and the extent of the deprivation.125
Prescription extinguishes ownership in land, which is a very drastic consequence. It follows
that sufficient reason in this context has to be established through a proportionality-like
inquiry between the means employed (loss of ownership) and ends or purposes achieved by
prescription. The Court in FNB reached the same conclusion, where the deprivation resulted
121
122
123
124
125
274
in the loss of corporeal movables. Accordingly, a proportionality-like inquiry is required to
justify prescription under section 25(1).
Finally, the eighth factor contextualises the substantive arbitrariness test, for it states that
sufficient reason has to be decided on all the relevant facts of a particular case.126 As a result,
regard must be had to all the relevant facts, circumstances and factors of a prescription case if
the Court is to decide whether sufficient reason exists for depriving the owner of ownership
to achieve the objectives of prescription, as discussed above.
There is another factor a court can take into consideration to determine whether the
deprivation was substantively arbitrary or not, although the Constitutional Court did not
directly refer to it in FNB. This entails the importance of policy values such as personal
autonomy of an owner and sanctity of the home in constitutional property law.127 In this
context, a deprivation is justified more easily if the affected property interest is located
further from the personal sphere of the owner and less easily when it is located closer to it.128
German constitutional law follows this approach, where the states power to regulate the
limits of property rights depends on how far a property right is located from the personal
autonomy of an owner.129 Accordingly, property rights concerning a persons home in
German law are protected more strongly against deprivation than property rights pertaining to
investment or commercial property.130 Furthermore, since land a finite resource of social
importance is subject to stricter social control and regulation,131 one can argue that
prescription is justified in that it constitutes stricter social control over unused or neglected
land. This approach is similar to Radins personality theory, a link already identified in
126
127
This observation is made by Van der Walt AJ Constitutional Property Law (2005) 153 footnote 115.
128
Van der Walt AJ Constitutional Property Law (2005) 153 footnote 115. According to the author, a similar
approach is followed in German constitutional law: See Van der Walt AJ Constitutional Property Clauses: A
Comparative Analysis (1999) 135-141. This approach is analogous to Radins personality theory, which is
addressed in section 4.4.3 of chapter four above.
129
Van der Walt AJ Constitutional Property Clauses: A Comparative Analysis (1999) 135; Van der Walt AJ
Unity and Pluralism in Property Theory A Review of Property Theories and Debates in Recent Literature:
130
Van der Walt AJ Constitutional Property Clauses: A Comparative Analysis (1999) 135-136.
131
Van der Walt AJ Constitutional Property Clauses: A Comparative Analysis (1999) 136. This is analogous to
what the Court said in FNB, where Ackermann J states that property should serve the public good: See First
National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and Another; First
National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 52.
275
chapter four,132 where she differentiates between personal property and fungible property,
claiming that the former should enjoy stronger protection than the latter.133 It seems that the
Constitutional Court approves of this line of thinking, since it acknowledged in FNB that this
factor (whether an owner makes limited or no use of property) can play an important role to
determine whether the deprivation is substantively arbitrary.134 This dictum by Ackermann J
opens the door to the possibility of including the factor whether an owner regards property as
personal or fungible property as identified by Van der Walt in the substantive
arbitrariness test. Such a conclusion is not in conflict with the position that an owners use (or
non-use) of an object is irrelevant for classifying ownership in that object as constitutional
property.135 This approach by FNB illustrates that the Constitutional Court thinks along lines
that are similar to those of Radins theory, since the personality theory also entails that even a
fungible interest in property is recognised as property.136
Alexanders social-obligation norm, which is analogous to Radins personality theory, also

provides a powerful moral justification for prescription under this extra factor for establishing
whether prescription amounts to an arbitrary deprivation. I only present a brief discussion of
this theory here, as it was already addressed in the previous chapter.137 According to
Alexander, humans must develop their capabilities to achieve human flourishing.138 Since
people unavoidably depend on others to attain these capabilities,139 the social-obligation norm
entails that owners have an inherent obligation to help others in their community to foster
their capabilities to lead a well-lived life.140 Chapter four argues that prescription recognises
this social-obligation norm by forcing owners to give property, which is not constitutive of
their capabilities due to their neglect of it, to squatters who regard it as essential to attain
human flourishing and who occupy the land in a way that satisfies the strict requirements for
132
133
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015 960, 986. See further
section 4.4.3 of chapter four above.
134
135
136
137
See section 4.4.3 of chapter four above for a more comprehensive discussion in this regard.
138
745-820 761.
139
Resources, such as land, are essential to developing ones capabilities: See Alexander GS The Social-
Obligation Norm in American Property Law (2009) 94 Cornell Law Review 745-820 768.
140
276
prescription. Although it is still has to be seen whether the social-obligation norm underlies
South African constitutional property law, such a possibility finds support in the fact that the
Constitution aims to promote an open and democratic society based on human dignity,
equality and freedom for all South Africans.141
If a court takes this extra factor into account, it appears that the possessor who actively uses
the property regards it as personal property and that the owner, by allowing the possessor
to use it, views it as mere commercial or fungible property. This entitles the possessor to
receive stronger protection of her interest in the property, which protection is granted through
prescription.
5.3.2.4.2 The position in foreign constitutional law

The jurisprudence of the European Court of Human Rights, which is foreign law, can be
helpful in determining whether a deprivation is substantively arbitrary.142 However,
Ackermann J warned that caution should be had for the way the Court interprets and applies
the margin of appreciation requirement of Article 1 of the First Protocol (Article 1) to the
European Convention for the Protection of Human Rights and Fundamental Freedoms 1950
(the Convention).143 According to him, the margin of appreciation must not be regarded
as being synonymous with deference in South African law.144 This means that the outcome
in JA Pye (Oxford) Ltd v United Kingdom (Pye),145 as decided by the Grand Chamber, can
be informative but not conclusive to determine whether the loss of ownership through
prescription in South African law is in line with section 25(1). Nonetheless, the minority
judgment by ORegan J in Reflect-All puts an interesting slant on the warning by Ackermann
J. ORegan J is of the opinion that a proportionality-like inquiry as to whether a deprivation is
arbitrary is comparable to the approach the European Court of Human Rights adopted to
141
Section 36(1) of the Constitution. I make this point by relying on Alexander GS The Social-Obligation
Norm in American Property Law (2009) 94 Cornell Law Review 745-820 767 footnote 86.
142
According to section 39(1)(c) of the Constitution, a court may consider foreign law when interpreting the Bill
of Rights.
143
144
145
(2008) 46 EHRR 45 (GC). The implications of this case are discussed in the next few paragraphs.
277
adjudicate Article 1 cases.146 In this context she specifically equates it to the fair balance
that needs to be struck between the demands of the general interests of the community and
the protection of a persons fundamental rights.147 Yet, despite the apparent rigidness of the
fair balance test, the European Court of Human Rights actually defers to the authority of a
member state by allowing a margin of appreciation.148 This makes it clear that the so-called
proportionality inquiry envisaged by Article 1 is in reality closer to a rationality inquiry.
Accordingly, one should be careful of ORegans J approach, which equates the fair
balance test of Article 1 with a proportionality-like inquiry in South African law.
Nonetheless, section 39(1)(c) of the South African Constitution provides that courts may
consider foreign law when interpreting the Bill of Rights, which opens the door to an
investigation in the manner in which the European Court of Human Rights adjudicates cases
concerning the infringement of property rights.
Article 1 of the Convention provides as follows:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one
shall be deprived of his possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce
such laws as it deems necessary to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions or penalties.
According to Sporrong and Lnnroth v Sweden,149Article 1 consists of three distinct rules.150

The first rule in the first sentence guarantees the peaceful enjoyment of property.151 The
second sentence contains the second rule, which subjects the deprivation or expropriation in
the South African context of possessions to certain conditions.152 The third rule, in the
146
Government, and Another 2009 (6) SA 391 (CC) paras 99-100.
147
Government, and Another 2009 (6) SA 391 (CC) para 100, referring to Sporrong and Lnnroth v Sweden (1983)
5 EHRR 35 para 69.
148
This is clear from JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV) para 45 and James v
United Kingdom (1986) 8 EHRR 123 para 51.
149
(1983) 5 EHRR 35.
150
Sporrong and Lnnroth v Sweden (1983) 5 EHRR 35 para 61. I do not discuss these three rules extensively
here. See Allen T Property Rights and the Human Rights Act 1998 (2005) 101-122 for a more complete
discussion in this regard.
151
Sporrong and Lnnroth v Sweden (1983) 5 EHRR 35 para 61; JA Pye (Oxford) Ltd v United Kingdom (2008)
46 EHRR 45 (GC) para 52; Anheuser-Busch Inc v Portugal (2007) 45 EHRR 36 para 62; James v United
Kingdom (1986) 8 EHRR 123 para 37.
152
278
second paragraph, allows member states to regulate the use of property in terms of
legislation, which legislation must be in accordance with the general interest.153 This analysis
of the structure of Article 1 was refined in James v United Kingdom,154 where the Grand
Chamber held that [t]he second and third rules are concerned with particular instances of
interference with the right to peaceful enjoyment of property and should therefore be
construed in the light of the general principle enunciated in the first rule.155 To avoid
confusion, I use the South African law equivalents when referring to the types of interference
mentioned in the second and third rules of Article 1.156
An interference with property must strike a fair balance157 between the demands of the
general interest of the community and the requirements of the protection of the individual's
fundamental rights158 for it to be in line with the first rule. Accordingly, an expropriation of
property under the second rule that does not provide for compensation that is reasonably
related to the value of the expropriated property will normally be in conflict with Article
1.159 However, full or reasonable compensation is neither expressly nor tacitly guaranteed
under the second rule, which means that an expropriation without compensation can in
certain circumstances be compatible with Article 1.160 For deprivations under the third rule
to be in line with Article 1, there must exist a reasonable relationship of proportionality
between the means employed and the aim sought to be realised.161 Member states enjoy a
153
154
(1986) 8 EHRR 123.
155
James v United Kingdom (1986) 8 EHRR 123 para 37.
156
Van der Walt AJ Constitutional Property Clauses: A Comparative Analysis (1999) 110-111; Van der Walt
AJ Constitutional Property Law (2005) 122. Van der Walt AJ Constitutional Property Law (2005) 122 points
out the possibility of confusion when using Article 1 for comparative purposes. According to him, the term
deprive in the second rule does not refer to state regulation in terms of the police power but rather to
expropriation. Accordingly, cases of the European Court of Human Rights that pertain to deprivation in terms of
the second rule must not be confused with deprivation in terms of section 25(1) of the South African
Constitution. Therefore, I use the term expropriation when referring to the second rule while I use
deprivation in the context of the third rule.
157
This notion is discussed comprehensively by Allen T Property Rights and the Human Rights Act 1998 (2005)
123-166
158
46 EHRR 45 (GC) para 53; Beyeler v Italy (2001) 33 EHRR 52 para 107.
159
JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC) para 54; JA Pye (Oxford) Ltd v United
Kingdom (2006) 43 EHRR 3 (IV) para 47. See further Allen T Property Rights and the Human Rights Act 1998
(2005) 112.
160
JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV) para 47. See also Allen T Property Rights
and the Human Rights Act 1998 (2005) 118.
161
JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC) para 55.
279
wide margin of appreciation concerning the means employed and purpose of a deprivation
to determine this reasonable relationship.162
When Pye first brought its case to the European Court of Human Rights, the Fourth Chamber
found that adverse possession amounts to expropriation under the second rule instead of
deprivation of property under the third rule.163 The Fourth Chamber explicitly rejected the
traditional justifications for adverse possession, since it required factors over and above
those which explain the law on limitation.164 In this sense the Fourth Chamber decided that
the legal certainty argument that adverse possession affords de iure status to de facto
situations carries less weight in a system were land is registered.165 The Fourth Chamber
found adverse possession to be in conflict with Article 1, since it did not provide for
compensation to the owner and that there was no adequate procedural protection for such
owner either.166 For these reasons the majority167 held that adverse possession imposed an
individual and excessive burden on the applicants (Pye) that upset the fair balance between
the demands of the public interest and their right to peaceful enjoyment of their possessions,
which violated Article 1.168
After this decision the United Kingdom government appealed to the Grand Chamber of the
European Court of Human Rights. The Grand Chamber held that adverse possession in the
context of registered land amounts to a deprivation under the third rule rather than
expropriation under the second rule.169 The Grand Chamber advanced the following reasons
for this finding:
162
Allgemeine Gold- und Silberscheideanstalt v United Kingdom (1987) 9 EHRR 1 para 52; JA Pye (Oxford)
Ltd v United Kingdom (2008) 46 EHRR 45 (GC) para 55.
163
JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV) para 62. The minority agrees with this
finding in paras O-I1 and O-I4.
164
JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV) paras 63-64.
165
JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV) para 65.
166
JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV) paras 73-76. The minority in paras O-I1 and
O-I4 disagrees with the finding that the absence of compensation causes adverse possession to be in conflict
with Article 1.
167
The Fourth Chamber was split by four votes to three, the majority consisting of judges Pellonp, Bratza,
Strznick and Pavlovschi, while judges Maruste, Garlicki and Borrego Borrego delivered the minority
judgment.
168
JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV) para 75. The minority disagrees with the
majority on this point in paras O-I1 O-I4 and finds that adverse possession is compatible with Article 1.
169
JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC) paras 65-66. The first minority in para O-
I7 agrees with the majority on this point. The opposite conclusion was reached by the majority of the Fourth
Chamber in JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV) paras 58-62. The second minority
in JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC) paras O-II1, O-II9 also finds that adverse
280
The applicant companies did not lose their land because of a legislative provision which
permitted the State to transfer ownership in particular circumstances (as in the cases of AGOSI,
Air Canada, Gasus), or because of a social policy of transfer of ownership (as in the case of
James), but rather as the result of the operation of the generally applicable rules on limitation
periods for actions for recovery of land.170
The Grand Chamber reinforced this position by arguing that the statutory provisions that
resulted in the loss of ownership through adverse possession were ... not intended to
[expropriate] paper owners of their ownership, but rather to regulate questions of title.171
Furthermore, it held that adverse possession was part of the general land law and intended to
regulate limitation periods in the context of the use and ownership of land as between
individuals.172 Although the distinction between the three rules is by no means self-evident
in the jurisprudence surrounding Article 1,173 I argue below that prescription does not amount
to expropriation.174 According to Allen, it makes little difference whether an interference is
incorrectly classified under a certain rule, as the application of the fair balance principle
which applies to all three rules should produce the same result on a specific set of facts.175
When the Grand Chamber decided whether adverse possession pursued a legitimate aim in
the public interest, it had regard to justifications provided for limitation periods in personal
possession amounts to expropriation. For a discussion of the Pye decisions, see Waring EJL Aspects of
Property: The Impact of Private Takings (2009) 164-168.
170
171
172
173
I extrapolate this from the conflicting findings by the Grand and Fourth Chambers pointed out above,
together with Allen T Property Rights and the Human Rights Act 1998 (2005) 103-106 and Van der Walt AJ
Constitutional Property Clauses: A Comparative Analysis (1999) 96-120. According to Allen at 103 and 121-
122, the absence of a compensation guarantee under the second rule mostly avoids the issue of having to
distinguish between the first, second and third rules. This position is reinforced by Johnston D JA Pye (Oxford)
Ltd v United Kingdom: Deprivation of Property Rights and Prescription (2006) 10 Edinburgh Law Review 277-
282 279-280. I am indebted to Prof Reid for bringing this article under my attention.
174
See section 5.3.2.6 below, though my opinion was formed from a South African law perspective. Waring
EJL Aspects of Property: The Impact of Private Takings (2009) 169-170 and Gretton GL Private Law and
Human Rights (2008) 12 Edinburgh Law Review 109-114 110-112 criticise the Grand Chamber for
categorising adverse possession under the third rule. I am indebted to Prof Reid for bringing Grettons article
under my attention.
175
Allen T Property Rights and the Human Rights Act 1998 (2005) 103-104, 118, 121-122. According to Allen,
the classification of an interference under one of the rules is relevant but not conclusive to the outcome of a case
because compensation is not guaranteed under the second rule. Of the same mind are Gretton GL Private Law
and Human Rights (2008) 12 Edinburgh Law Review 109-114 112 and Johnston D JA Pye (Oxford) Ltd v
United Kingdom: Deprivation of Property Rights and Prescription (2006) 10 Edinburgh Law Review 277-
282 279-280. The irrelevance of the classification between expropriation and deprivation under Article 1 is
analogous to the telescoping effect of the arbitrariness test in the context of section 25, as pointed out by Roux
T Property in Woolman S, Roux T & Bishop M (eds) Constitutional Law of South Africa (2nd ed 2003 original
service Dec 2003) 46-2 46-3, 46-19 46-20, 46-32. However, Allen does provide a caveat at 112 where he
states that the differentiation between expropriation and deprivation is one area where the tactical possibilities
should not be ignored.
281
injury cases in Stubbings and Others v United Kingdom.176 According to that case, limitation
periods promote legal certainty, protect defendants from stale claims and prevent injustice.177
The latter objective is achieved by preventing the adjudication of cases based on evidence
that may have become lost over time. The Grand Chamber found that these justifications also
hold water in the context of limitation periods for recovery of land.178 It further confirmed
that states enjoy a wide margin of appreciation when determining what is in the public
interest.179 Consequently, it held that adverse possession is not manifestly without
reasonable foundation, as there existed a general interest in both the limitation period itself
and the extinguishment of ownership after the expiration of the limitation period.180
The Grand Chamber regarded the relatively long 12-year limitation period together with
the fact that very little action on the side of an owner is able to stop time running as
central arguments to justify adverse possession.181 As to procedural protection or fairness, the
Grand Chamber found that not only was the option open to an owner to apply for
repossession of the land during the limitation period, but that the owner could also contest a
claim made by an adverse possession in the domestic courts.182 It follows that the Grand
Chamber found that adverse possession did not upset the fair balance required by Article 1.183
The reasons advanced for justifying adverse possession in Pye are analogous with the
application of the substantive arbitrariness test discussed above. It follows that I arrive at the
176
(1997) 23 EHRR 213 para 49. JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC) referred to
this case in para 68. The majority in JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV) expressly
rejected these reasons for justifying adverse possession in paras 63-64.
177
Stubbings and Others v United Kingdom (1997) 23 EHRR 213 para 49.
178
JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC) para 69. Johnston D JA Pye (Oxford) Ltd
v United Kingdom: Deprivation of Property Rights and Prescription (2006) 10 Edinburgh Law Review 277-
282 280-281 criticises JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV) for not taking these
factors into consideration when it found adverse possession to be in conflict with Article 1. The second minority
in JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC) paras O-II4, O-II7 finds that these
justifications do not hold water if one is able to determine who the owner is by investigating the register.
179
JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC) para 71, citing Jahn v Germany (2006) 42
EHRR 49 para 91.
180
JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC) para 74. The first minority in para O-I9
agrees with the majority on this point.
181
182
JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC) para 80. The first minority in paras O-I22
O-I23 agrees with the majority that adverse possession does afford sufficient procedural protection for the
owner. To the contrary is the majority in JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV) paras
73-76, where it was held that adverse possession does not provide adequate procedural protection for an owner.
183
JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC) para 85. The first minority disagreed with
the majority on this point in para O-I1 and holds that adverse possession does violate Article 1. According to the
first minority in paras O-I23 O-I28, adverse possession does not strike a fair balance between the rights of the
owners and the general interest served. The second minority also disagreed with the majority and found in paras
O-II1, O-II10 and O-II13 that adverse possession does violate Article 1, since it amounts to an uncompensated
expropriation.
282
same conclusion as the majority184 in the Grand Chamber judgment, namely that the
deprivation affected by prescription in South African law is neither arbitrary nor manifestly
without reasonable foundation. The fact that the Grand Chamber held adverse possession
(which merely requires a person to possess land animo possidendi) complies with Article 1 of
the First Protocol strengthens the possibility that the South African Constitutional Court will
find that prescription is in line with the property clause.
5.3.2.5 Can the deprivation be justified in terms of section 36(1)?

Should a deprivation not satisfy the requirements of section 25(1), either because it is not
authorised by law of general application or because it is arbitrary, such deprivation could
theoretically be justified in terms of section 36(1) of the Constitution.185 Section 36(1)
provides that rights in the Bill of Rights may only be limited if such limitation is reasonable
and justifiable in an open and democratic society.
Roux, supported by Van der Walt, indicates that if one strictly follows the methodology set
out in FNB section 36(1) is unlikely to play any meaningful role in a constitutional property
challenge.186 This is because the proportionality test in section 36(1) is probably similar in
spirit but stronger in force than the (variable) non-arbitrariness test laid down in the FNB
decision.187 Roux bases his observation on two reasons. Firstly, if the deprivation is not
authorised by law of general application, it is impossible to survive section 36(1) scrutiny, as
section 36(1) also requires the infringement to take place in terms of law of general
application.188 Secondly, if the deprivation is found to be substantively or procedurally
184
The Grand Chamber split with 10 votes to seven, the majority consisting of judges Costa, Zupancic,
Lorenzen, Cabral Barreto, Butkevych, Baka, Zagrebelsky, Mularoni, Jaeger and Ziemele, while judges Rozakis,
Bratza, Tsatsa-Nikolovska, Gyulumyan and ikuta constituted the first minority. The second minority was
delivered by judges Loucaides and Kovler.
185
Roux T Property in Woolman S, Roux T & Bishop M (eds) Constitutional Law of South Africa (2nd ed
2003 original service Dec 2003) 46-26 46-28. The Court acknowledged this possibility in Nhlabathi and
Others v Fick [2003] 2 All SA 323 (LCC) para 34. However, Van der Walt says that although section 25 is not
explicitly excluded from limitation under section 36(1), it would be highly unlikely to justify an interference that
is in conflict with section 25 under section 36(1): See Van der Walt AJ Constitutional Property Law (2005) 56-
57. To the same effect is Ackermann J in First National Bank of SA Ltd t/a Wesbank v Commissioner, South
African Revenue Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002
(4) SA 768 (CC) para 110.
186
2003 original service Dec 2003) 46-26 46-28; Van der Walt AJ Constitutional Property Law (2005) 53-57.
187
188
2003 original service Dec 2003) 46-26; Van der Walt AJ Constitutional Property Law (2005) 55.
283
arbitrary, it is highly unlikely to be reasonable and justifiable in an open and democratic
society, as required by section 36(1).189 Even if the deprivation is found to be arbitrary due
to the fact that it extinguishes all instances of ownership without sufficient reason (which
entails an inquiry on the proportionality side of the spectrum), a section 36(1) analysis will at
best merely confirm the conclusion already reached under the arbitrariness test inquiry.190 In
light of the above-mentioned position, it seems that section 36(1) will play an extremely
limited, if any, role in cases where a deprivation is found to contravene the requirements of
section 25(1). It is worth emphasising that the limitation issue under section 36(1) does not
arise if a deprivation is found to comply with section 25.191 Due to the standard of the
arbitrariness inquiry which is a contextual test that varies between thin rationality and
thick proportionality analysis the matter of the limitation clause seems to have receded
into the background.192
Should prescription be found to amount to an arbitrary deprivation of property in terms of

section 25(1) and should the predictions by Roux and Van der Walt prove to be correct, it is
highly improbable that such a deprivation will be justifiable in terms of section 36(1). Should
this be the case, prescription will be unconstitutional and the matter will end there. However,
in the unlikely event that the arbitrary deprivation in this context is found to be justifiable in
terms of section 36(1),193 the next stage in the FNB methodology necessitates an inquiry as to
whether prescription amounts to an expropriation in terms of section 25(2). One must also
follow this route even if prescription constitutes as I argue a non-arbitrary deprivation.
5.3.2.6 Has there been an expropriation in terms of section 25(2)?
189
2003 original service Dec 2003) 46-26; Van der Walt AJ Constitutional Property Law (2005) 55.
190
2003 original service Dec 2003) 46-27; Van der Walt AJ Constitutional Property Law (2005) 55-57. For an
example to the contrary, see Nhlabathi and Others v Fick [2003] 2 All SA 323 (LCC) paras 34-35. In this case
the Land Claims Court held that the appropriation of a grave by an occupier on someone elses land in terms of
section 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997 (ESTA) would be justifiable in terms
of section 36(1), even if it was regarded as an expropriation of land and even though ESTA does not provide for
compensation as required by section 25(2) of the Constitution. However, the Court in this instance did not
decide whether there was an expropriation.
191
192
2003 original service Dec 2003) 46-3.
193
As was the case in Nhlabathi and Others v Fick [2003] 2 All SA 323 (LCC).
284
The next stage in the FNB methodology, as applied here, involves ascertaining whether
prescription amounts to expropriation in terms of section 25(2) of the Constitution. In this
regard Ackermann J stated that deprivation encompasses all forms of interference with
property while expropriation applies only to a narrower species of such interference.194
Consequently, if prescription does not constitute an arbitrary deprivation, it has to satisfy the
requirements in section 25(2) if it amounts to expropriation.
In light of certain findings by our courts, it is necessary to provide clarity regarding the nature
of expropriation before I can focus on the requirements for this kind of interference. In the
first constitutional case regarding expropriation Goldstone J stated that expropriation
involves acquisition of rights in property by a public authority.195 The recent Constitutional
Court judgment of Reflect-All196 followed this approach. In that decision Nkabinde J stated
that courts should be cautious to extend the meaning of expropriation to situations where
the deprivation does not result in the state acquiring the property involved.197 This approach
tends to oversimplify matters, since it is clear that expropriated rights need not be acquired by
the state to constitute expropriation.198 It follows that expropriated property can also be
acquired by (or transferred to) parties other than the state for example third parties where
the transfer is in the public interest or serves a public purpose, such as legitimate land reform
initiatives.199 It is a pity that the Constitutional Court in Reflect-All confirmed this position
adopted in Harksen v Lane NO and Others200 to determine whether a certain interference
amounts to expropriation. Nonetheless, this chapter assumes that expropriation in favour of
private third parties is constitutionally possible.
194
195
Harksen v Lane NO and Others 1998 (1) SA 300 (CC) para 32.
196
197
198
See generally the objections by Van der Walt AJ & Botha H Coming to Grips with the New Constitutional
Order: Critical Comments on Harksen v Lane NO (1998) 13 South African Public Law 17-41; Van der Walt AJ
Constitutional Property Law (2009) 3 Jutas Quarterly Review para 2.2, Van der Walt AJ Constitutional
Property Law (2005) 180, 182-183, 189 and Gildenhuys A Onteieningsreg (2nd ed 2001) 8-9.
199
Section 6(2)(dA) of ESTA might be of such a nature, since it allows occupiers to bury deceased members of
their family on the owners farm: See Nhlabathi and Others v Fick [2003] 2 All SA 323 (LCC). Van der Walt
AJ Constitutional Property Law (2009) 3 Jutas Quarterly Review para 2.2 cites section 25(4)(a) of the
Constitution as an example that allows the state to expropriate property in the interest of private beneficiaries to
promote land reform. See further Roux T Property in Woolman S, Roux T & Bishop M (eds) Constitutional
Law of South Africa (2nd ed 2003 original service Dec 2003) 46-31; Van der Walt AJ Constitutional Property
Law (2005) 182-183, 189; Gildenhuys A Onteieningsreg (2nd ed 2001) 8-9.
200
1998 (1) SA 300 (CC).
285
Expropriation refers to the situation where the state extinguishes a persons rights in property,
which rights are in turn usually acquired by the state or by a third party against payment of
compensation to the expropriated party.201 Yet, it is not strictly required that the state or a
third party acquire the expropriated rights, as mere extinguishment of rights by the state can
also amount to expropriation.202 Furthermore, expropriation in South African law must be in
the public interest or for a public purpose to be constitutionally valid.203 Expropriation is a
state action carried out in terms of authorising legislation.204 In this regard expropriation is an
administrative action, which means that the state has to exercise a discretion when it decides
to expropriate a party.205
It was seen in the previous paragraph that expropriation must take place in accordance with
empowering legislation.206 Any attempted expropriation that is not based on legislation that
allows expropriation is void.207 Expropriation must be exercised in terms of legislation, which
legislation must determine the circumstances, procedures and conditions under which
expropriation may be executed.208 Consequently, expropriation in terms of the common law
is not possible in South African law, since an act of expropriation must rest upon a
legislative foundation.209 The Expropriation Act 63 of 1975 fulfils this role in South African
law. It follows that the power to expropriate must be explicitly granted by legislation to
government institutions for specific purposes.210 In the recent decision of Ekurhuleni
Metropolitan Municipality v Dada NO and Others,211 the Supreme Court of Appeal
confirmed the principle that our courts do not have the inherent power to order a forced sale
201
Van der Walt AJ Constitutional Property Law (2005) 188-189; Gildenhuys A Onteieningsreg (2nd ed 2001)
8.
202
203
Section 25(2)(a) of the Constitution.
204
Joyce & McGregor Ltd v Cape Provincial Administration 1946 AD 658 671. See also Van der Walt AJ
Constitutional Property Law (2005) 239; Gildenhuys A Onteieningsreg (2nd ed 2001) 49, 93.
205
Van der Walt AJ Constitutional Property Law (2009) 2 Jutas Quarterly Review para 2.4; Gildenhuys A
Onteieningsreg (2nd ed 2001) 10-11, 14-15, 77.
206
Joyce & McGregor Ltd v Cape Provincial Administration 1946 AD 658 671. See also Van der Walt AJ
Constitutional Property Law (2005) 239 and Gildenhuys A Onteieningsreg (2nd ed 2001) 49, 93.
207
Gildenhuys A Onteieningsreg (2nd ed 2001) 49.
208
Gildenhuys A Onteieningsreg (2nd ed 2001) 9-10: Die reg moet ingevolge wetgewing uitgeoefen word, wat
die omstandighede, prosedures en voorwaardes waaronder onteiening mag plaasvind, vasl. (The right of
expropriation must be exercised in terms of legislation, which must set out the circumstances, procedures and
conditions under which expropriation may take place.)
209
Joyce & McGregor Ltd v Cape Provincial Administration 1946 AD 658 671. To the same effect is Harvey v
Umhlatuze Municipality and Others 2011 (1) SA 601 (KZP) para 81. See also Gildenhuys A Onteieningsreg
(2nd ed 2001) 10, 49.
210
Harvey v Umhlatuze Municipality and Others 2011 (1) SA 601 (KZP) para 81.
211
2009 (4) SA 463 (SCA).
286
or expropriation of property.212 This decision is in line with the view that the power to
expropriate must be authorised by specific legislation, which power is a public right that only
accrues to the state.213 This means that courts are only allowed to order expropriation if such
power is granted by legislation, which legislation must specifically empower the court to
make such an order.214
In light of the above it is difficult to see how prescription can amount to expropriation.
Firstly, neither of the prescription acts grants the state the power to expropriate property. In
this sense they do not set out the circumstances, procedures or conditions in any way as
required by law to facilitate a valid expropriation.215 It was seen in the preceding paragraph
that common law expropriation is not possible in South African law, since the power to
expropriate must be granted to the state by legislation. It follows that when a court confirms
that the requirements for prescription have been met, which a party has to plead in curiam,216
the Court does not order expropriation but merely confirms the rights in property that are
regulated in terms of legislation. Indeed, the [c]ourts only have the power to order
expropriation if that power is granted to them specifically, and that would be by way of
exception.217 Furthermore, the prescription acts do not provide for compensation either,
which serves as yet another indication that prescription does not amount to expropriation.
This conclusion finds support in the presumption that legislation does not authorise
expropriation if it contains no explicit or tacit provision that provides for the payment of
compensation.218 Finally, both the prescription acts determine that the possessor acquires
ownership over property ex lege the moment all the requirements for prescription are met.219
212
Ekurhuleni Metropolitan Municipality v Dada NO and Others 2009 (4) SA 463 (SCA) para 14. Although
section 38 of the Constitution empowers courts to grant appropriate relief, the Supreme Court of Appeal stated
in this paragraph that this notion does not grant the Court authority to order a municipality to purchase property.
213
Pretoria City Council v Modimola 1966 (3) SA 250 (A) 258: Die reg van onteiening is n publieke reg want
dit kom die Staat alleen toe. (The right of expropriation is a public right because it only accrues to the State.)
See also Gildenhuys A Onteieningsreg (2nd ed 2001) 9, 49-59; Van der Walt AJ Constitutional Property Law
(2009) 2 Jutas Quarterly Review para 2.4 and Van der Walt AJ Constitutional Property Law (2009) 3 Jutas
Quarterly Review para 2.2.
214
215
Gildenhuys A Onteieningsreg (2nd ed 2001) 9-10: Die reg moet ingevolge wetgewing uitgeoefen word, wat
die omstandighede, prosedures en voorwaardes waaronder onteiening mag plaasvind, vasl. (The right of
expropriation must be exercised in terms of legislation, which must set out the circumstances, procedures and
conditions under which expropriation may take place.)
216
See section 14 of the Prescription Act 18 of 1943 and section 17(1)-(2) of the Prescription Act 68 of 1969.
Section 17(1) of the latter Act clearly provides that courts may not take mero motu notice of prescription.
217
218
Belinco (Pty) Ltd v Bellville Municipality and Another 1970 (4) SA 589 (A) 597. See also Gildenhuys A
Onteieningsreg (2nd ed 2001) 13, 18 and sources cited.
219
Section 2(1)-(2) of the Prescription Act 18 of 1943 and section 1 of the Prescription Act 68 of 1969.
287
Since no discretion is exercised to determine whether a person has acquired ownership
through prescription, as it is purely affected by operation of law, it is clear that no decision is
taken. This also negates the possibility that prescription amounts to expropriation, since
expropriation takes place as a result of administrative action. In the absence of a discretion,
which is the main requirement necessary to constitute administrative action, it follows that
prescription does not amount to administrative action and therefore it is highly unlikely to
constitute expropriation.220
Even if prescription does not amount to a formal expropriation, one has to determine whether
this legal institution perhaps amounts to what is known as constructive expropriation. To
answer this question, it needs to be considered what this notion entails as well as whether it
forms part of South African law.
In addition to expropriation, some legal systems221 acknowledge the doctrine of constructive

expropriation.222 This doctrine caters for the situation where certain state interference results
in a serious loss or limitation of property for an owner. Such interference is then viewed as a
de facto expropriation that requires compensation, even though the state through the
regulation may not intend to expropriate the property.223 Since prescription results in the
total loss of ownership on the side of the owner, there is the possibility that it could amount to
constructive expropriation.
Although this issue has not yet been definitively decided in South African law, two of our
highest courts have had the opportunity to deal with this notion. In Steinberg v South
Peninsula Municipality224 the Supreme Court of Appeal described constructive expropriation
as a situation where a public body utilises a regulatory power in a manner which, taken in
isolation, can be categorised as a deprivation of property rights and not an expropriation, but
220
According to section 1 of the Promotion of Administrative Justice Act 3 of 2000, administrative action
means any decision taken, or failure to take a decision.
221
Such as Swiss and US law. For a discussion of constructive expropriation in these systems, see Van der Walt
AJ Constitutional Property Clauses: A Comparative Analysis (1999) 359-376 (Swiss law) and 398-458 (US
law).
222
This doctrine is also known as material expropriation in Swiss law and as inverse condemnation or
regulatory taking in US law: See Van der Walt AJ Constitutional Property Law (2005) 209. I do not provide
an in-depth discussion of this doctrine in my dissertation. See Van der Walt AJ Constitutional Property
Clauses: A Comparative Analysis (1999) 359-376 (Swiss law) and 398-458 (US law), Van der Walt AJ
Constitutional Property Law (2005) 209-237 and Gildenhuys A Onteieningsreg (2nd ed 2001) 15, 137-149 for a
more comprehensive discussion of the topic.
223
Van der Walt AJ Constitutional Property Law (2005) 209; Gildenhuys A Onteieningsreg (2nd ed 2001) 15.
224
2001 (4) SA 1243 (SCA).
288
which has the effect, albeit indirectly, of transferring those rights to the public body.225
Although the Court in that instance entertained the possibility of importing constructive
expropriation into South African law, it decided against it for fear that it may frustrate land
reform, together with introducing confusion into the law.226 Furthermore, in Reflect-All the
Constitutional Court voiced its doubts as to the appropriateness of incorporating constructive
expropriation into South African law.227 Moreover, if one strictly follows the methodology in
the FNB decision for purposes of a section 25 dispute, it is difficult to see where constructive
expropriation will fit into the picture.228 This is because of the way FNB differentiated
between expropriation and deprivation by setting up the former as a narrower category falling
within the wider category of deprivation. This complicates the question where a third
category, namely constructive expropriation, may be situated.229 This differentiation between
deprivation and expropriation together with Rouxs telescoping effect of the arbitrariness
test makes it unlikely that the South African courts will recognise constructive
expropriation as long as they adhere to the FNB logic.230 For instance, should a deprivation
amount to a de facto expropriation of property without providing for compensation, it will
already be struck down as an arbitrary deprivation under the section 25(1) inquiry in that it
does not provide for compensation as required by section 25(2). As seen above, it is highly
unlikely that such a deprivation will be justified in terms of section 36. Therefore, the
possibility to treat the deprivation as a constructive expropriation will never arise, for the
inquiry as to the constitutionality of a deprivation will either end with the finding that it is
arbitrary under section 25(1)231 or that it is not justifiable under section 36. In view of this
225
Steinberg v South Peninsula Municipality 2001 (4) SA 1243 (SCA) para 8.
226
Steinberg v South Peninsula Municipality 2001 (4) SA 1243 (SCA) para 8. Both these reasons for not
importing the doctrine of constructive expropriation into South African law are criticised by Van der Walt AJ
Constitutional Property Law (2005) 231-234.
227
Government, and Another 2009 (6) SA 391 (CC) para 65. This scepticism is shared by Van der Walt AJ
Constitutional Property Law (2009) 3 Jutas Quarterly Review para 2.2, where he states that the doctrine of
constructive expropriation probably does not and should not find application in South African law.
228
Van der Walt AJ Constitutional Property Law (2005) 236; Roux T Property in Woolman S, Roux T &
Bishop M (eds) Constitutional Law of South Africa (2nd ed 2003 original service Dec 2003) 46-32 and sources
cited.
229
cited.
230
Van der Walt AJ Constitutional Property Law (2005) 236-237; Roux T Property in Woolman S, Roux T &
Bishop M (eds) Constitutional Law of South Africa (2nd ed 2003 original service Dec 2003) 46-2 46-3, 46-19
46-20, 46-32.
231
2003 original service Dec 2003) 46-32.
289
telescoping effect, the question whether an interference with property amounts to a
(constructive) expropriation will never be reached.232
Still, some authors are of the opinion that the doctrine of constructive expropriation should be
recognised in South African law.233 Gildenhuys is one of the advocates that favour the
adoption of this doctrine into South African law.234 Even so, it is worth emphasising that
Gildenhuys published his book Onteieningsreg one year prior to the handing down of FNB by
the Constitutional Court. After this decision it seems very unlikely as already indicated
that the doctrine of constructive expropriation will be recognised in South African law,
especially if one strictly follows the FNB methodology.235 Consequently, I agree with Van
der Walt that this doctrine should not find application in South African law.236 In light of
the above one can safely conclude that this doctrine does not form part of South African law,
which means that prescription cannot amount to constructive expropriation. This conclusion
makes it unnecessary to consider the final two stages of the FNB analysis, namely whether
the deprivation complies with section 25(2)(a)-(b), or whether it is justified under section 36.
5.4 Conclusion
This chapter illustrates the effects of prescription in practice, together with the infringement it
may cause in terms of section 25. However, it argues that prescription is likely to amount to a
non-arbitrary deprivation in terms of section 25(1).237 Such a conclusion is strengthened by
using utilitarianism and law and economics theory, which chapter four discusses in greater
detail.238 Another important factor in this regard is the German approach towards the personal
autonomy and sanctity of the home, which is analogous to Radins personality theory.239 This
232
As was also the case in First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue
Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC),
where the Court found that section 114 of the Customs and Excise Act 91 of 1964 amounted to an arbitrary
deprivation. Thus, the question of whether that section amounted to expropriation was never reached.
233
Gildenhuys A Onteieningsreg (2nd ed 2001) 15, 137-149. Van der Walt withdrew from a similar position in
Van der Walt AJ Constitutional Property Law (2009) 3 Jutas Quarterly Review para 2.2, after initially being
in favour of recognising constructive expropriation in South African law: See Van der Walt AJ Constitutional
Property Law (2005) 236-237.
234
Gildenhuys A Onteieningsreg (2nd ed 2001) 15, 137-149.
235
cited.
236
237
238
239
290
approach provides a strong justification for prescription where the possessor may be using the
property as a home, especially when the owner merely regards it as commercial or fungible
property.
The findings of the Grand Chamber in JA Pye (Oxford) Ltd v United Kingdom240 further
contribute to classifying prescription as a non-arbitrary deprivation. In that case the Grand
Chamber found that adverse possession strikes a fair balance in the context of the third rule
(deprivation) of Article 1. This is significant, as the animus possidendi requirement of
adverse possession is not as strict as the animus domini element of prescription.241 In light of
this conclusion, Pye provides authority from a comparative law viewpoint that prescription is
likely to constitute a non-arbitrary deprivation that complies with section 25(1).
In South African law, prescription is unlikely to amount to an expropriation due to the

absence of legislation that authorises expropriation.242 The prescription acts neither authorise
the state (or the courts) to order expropriation nor do they provide from compensation. These
factors indicate that prescription does not constitute expropriation. This chapter also
addresses the possibility that prescription could constitute constructive expropriation. The
chapter argues that prescription cannot amount to constructive expropriation, since the logic
set out in FNB makes it unlikely for this doctrine to form part of South African law.243
Because prescription constitutes a non-arbitrary deprivation in the framework of section
25(1), I conclude that this legal rule is in line with the property clause and, thus,
constitutionally compliant.
240
(2008) 46 EHRR 45 (GC).
241
For the differences between animus domini and animus possidendi, see section 2.3.2.1.1 of chapter two
together with sections 3.2.2.3.2.1 and 3.2.2.3.2.3 of chapter three above.
242
243
291
CHAPTER 6: CONCLUSION
6.1 Introduction
Acquisitive prescription (prescription), an original method of acquisition of ownership,1 is
an area of South African property law that is generally unproblematic and legally certain.2
The two prescription acts, namely the Prescription Act 18 of 1943 (1943 Act) and the
Prescription Act 68 of 1969 (1969 Act), regulate prescription in South African law. Yet,
these acts do not codify prescription law in South Africa.3 The two prescription acts
determine that a person acquires ownership ex lege if such person continuously possessed
property openly and as if owner for an uninterrupted period of 30 years.4
The requirements for prescription in Dutch and French law are similar to those in South
African law, since these systems also require a possessor to possess property with the
intention of an owner (animus domini) for a certain period of time before he can acquire
ownership. Pre-2003 English law5 is to much the same effect, although adverse possession
the common law equivalent of prescription merely requires a person to possess land with
the animus possidendi (intention to possess) in order to acquire title or ownership.
On the face of it, these three jurisdictions also appear to regard prescription or adverse
possession as an area of law that is unproblematic and reasonably clear. However, the
constitutionality of this seemingly uncomplicated legal institution was recently challenged
before the European Court of Human Rights in Strasbourg in JA Pye (Oxford) Ltd v United
Kingdom (Pye).6 In this case the Fourth Chamber of the European Court of Human Rights
held that adverse possession is in conflict with Article 1 of Protocol No 1 (Article 1) to the
European Convention on Human Rights and Fundamental Freedoms 1950 (the
Convention). Article 1, which guarantees the peaceful enjoyment of possessions and
1
Section 2(2) of the Prescription Act 18 of 1943 and section 1 of the Prescription Act 68 of 1969.
2
Prescription in the context of modern South African law is discussed in section 2.3 of chapter two above.
3
See for instance Pienaar v Rabie 1983 (3) SA 126 (A) 135; Bisschop v Stafford 1974 (3) SA 1 (A) 7; Morkels
Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) 467.
4
Section 1 of the Prescription Act 68 of 1969. These requirements are similar to those set out in section 2(1)-(2)
of the Prescription Act 18 of 1943, as indicated in sections 2.3.1-2.3.2 of chapter two above.
5
The Land Registration Act 2002, which fundamentally altered English adverse possession law, only came into
operation on 13 October 2003 and is prospective in nature: See Ofulue v Bossert [2009] UKHL 16 and JA Pye
(Oxford) Ltd v Graham [2003] 1 AC 419.
6
(2006) 43 EHRR 3 (IV) and (2008) 46 EHRR 45 (GC). A brief exposition of the facts of this case appears in
section 1.1.1 of chapter one above and are therefore not repeated here. For a more detailed discussion of the
facts of this case, see section 3.2.3.2 of chapter three above.
292
provides for legitimate state interference with private property, is similar but not identical to
section 25 (the property clause) of the Constitution of the Republic of South Africa 1996
(the Constitution). According to the Fourth Chamber, adverse possession amounts to an
uncompensated deprivation or expropriation for purposes of South African constitutional
law of property, which upset the fair balance required by the Convention. The Fourth
Chambers main objection is that the traditional justifications for adverse possession do not
carry the same weight in jurisdictions where land is registered.7 However, on appeal the
Grand Chamber of the European Court of Human Rights overturned the Fourth Chambers
decision and found that adverse possession is in line with Article 1 of the First Protocol.8 The
Grand Chamber found that adverse possession constitutes regulation or deprivation in the
South African sense of property rather than expropriation and concluded that it strikes a
fair balance between the interests of the individual and the public interest. The Grand
Chamber reached this conclusion by establishing that adverse possession fulfils a legitimate
purpose in that it promotes legal certainty, protects defendants from stale claims and prevents
injustice, even in the context of registered land.9 Consequently, it held that adverse
possession complies with Article 1, at least as far as it operated prior to the enactment of the
English Land Registration Act 2002 (LRA or 2002 Act). This is an interesting result,
since it was easier to succeed with an adverse possession claim at the time of Pye than it
would have been had this case occurred in a civil law country.10 This is due to the fact that
adverse possession merely requires a possessor to possess animo possidendi, as opposed to
the more onerous animus domini requirement for prescription in the civil law systems.11
Despite the judgment by the Grand Chamber, the Fourth Chambers decision in Pye is
significant for purposes of South African constitutional property law, since prescription like
adverse possession also results in the loss of ownership on the side of an owner. In this
sense a possessor acquires ownership through prescription without the co-operation or
permission of the original owner the moment such possessor satisfies the requirements for
prescription, since it is an original method of acquisition of ownership. Accordingly, the
focus of this dissertation falls on whether this uncomplicated legal institution complies with
7
JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV) para 65.
8
9
JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC) para 69, citing Stubbings and Others v
United Kingdom (1997) 23 EHRR 213 para 49.
10
This topic is discussed in chapter three above.
11
See section 3.2.2.3.2.3 for English law and compare it to sections 2.3.2.1.1 (South African law), 3.3.2.2.1
(Dutch law) and 3.4.2.1 (French law) in chapters two and three above.
293
section 25 of the Constitution. The reason for this study is that prescription could possibly be
in conflict with the property clause, as it may amount to either an arbitrary deprivation or an
uncompensated expropriation, both of which would be unconstitutional. The Fourth
Chambers judgment especially highlights the possibility that prescription could constitute an
uncompensated expropriation. As a result, the very existence of prescription the so-called
unproblematic rule was suddenly brought into question for the first time. Since the
potential unconstitutionality of prescription will hold serious repercussions for South African
prescription law, and possibly also for the other methods of original acquisition of
ownership,12 it was imperative to undertake a study in this field.
To establish whether prescription is in line with section 25, it has to be determined whether
there are sufficient justifications for this legal institution today. For this purpose the
dissertation focuses on two questions, namely (i) whether adequate grounds exist for
prescription and (ii) whether this rule complies with the property clause. To this end it was
necessary to evaluate the roots of prescription, together with its requirements in South
African law. This is done in chapter two, which focuses on the Roman and Roman-Dutch
legal heritage of prescription and analyses its requirements in contemporary South African
law. Chapter two establishes that the requirements for prescription under the two prescription
acts are similar and reasonably clear, since both acts require a person to possess property
openly and continuously with the intention of an owner for an uninterrupted period of 30
years.13 In this sense it is rather difficult to succeed with a prescription claim in South African
law.
After the discussion of South African law, chapter three establishes how prescription operates
in a number of foreign jurisdictions, namely English, Dutch, French and German law.14 The
requirements for prescription in Dutch and French law both having negative registration
systems are remarkably similar to those in South African law. Both these jurisdictions also
require a person to possess property with the animus domini before such person can acquire it
through prescription. However, these systems draw a sharp distinction between bona and
mala fide prescription, since they require bad faith possessors to possess property for longer
periods than their good faith counterparts before they can acquire ownership. German law
12
Such as accessio, specificatio and commixtio et confusio.
13
The similarities between these two acts are discussed in sections 2.3.1-2.3.2 of chapter two above.
14
My reasons for focusing on these systems are discussed in section 1.2 of chapter one above.
294
also requires a person to possess property with the intention of an owner, but it has extra
requirements for Ersitzung15 due to the positive registration system in German law. Thus, a
possessor of land must also be (erroneously) registered in the land register or Grundbuch for
a period of 30 years before he can acquire ownership through Ersitzung. It follows that it is
extremely difficult to acquire land through prescription in German law.
Chapter three also specifically focuses on English adverse possession law, since it was
challenged under Article 1 of the First Protocol before the European Court of Human Rights.
However, this chapter investigates the rules of adverse possession both before and after the
enactment of the LRA, since the Pye case was instituted before this Act came into force.
Although the 2002 Act now provides comprehensive safeguards for owners of registered
land, chapter three indicates that the LRA did not alter the substantive requirements of
adverse possession. It follows that, but for the amendments by the 2002 Act, adverse
possession law before and after 2003 largely remains the same. This Act was the result of
suggestions by the English Law Commission, which concluded that the traditional
justifications for adverse possession do not carry weight when the register provides
conclusive proof of ownership.
Chapter three discovers that adverse possession merely requires a person to possess property
with the animus possidendi (intention to possess) in order to acquire title. This is a lower
requirement than animus domini, since the animus possidendi can, for instance, even co-exist
with an offer to pay rent to the owner.16 An offer to this effect will immediately negate the
animus domini in a civil law system, since it is inconsistent with the intention of possessing
property as an owner.17 Despite the fact that it is easier to acquire ownership through
adverse possession, the LRA effectively prevents the extinguishment of title in registered
land through mere adverse possession. It follows that post-2003 English law is now similar to
German law, since both these legal systems have stricter requirements pertaining to adverse
possession and prescription due to their positive registration systems. Consequently, it is clear
that prescription or adverse possession has a more important purpose in systems where the
law does not guarantee the correctness of the register.
15
Ersitzung is the German law equivalent of acquisitive prescription in South African law.
16
This was the case in JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676. See further
section 3.2.2.3.2.3 of chapter three above.
17
See section 2.3.2.1.1 of chapter two above for the position in South African law.
295
Chapter four focuses on the rationale for prescription and starts with a brief overview of the
justifications that Roman-Dutch, South African, Dutch and French law provide for this rule.18
These systems advance two main grounds in favour of this legal institution, namely that it
promotes legal certainty and punishes neglectful owners. The English Law Commission,19
which relied on an article by Dockray, criticised these justifications and reasoned that adverse
possession does not fulfil the same purpose in a positive registration system.20 This led to the
enactment of the LRA, which effectively abolished traditional adverse possession in English
law. Accordingly, it is no longer possible to acquire title in registered land in English law
through adverse possession.
Despite the Law Commissions abolition of adverse possession in its traditional sense, I argue
that the Law Commission failed to take into account certain moral and economic
justifications. These justifications provide strong support for having prescription in a legal
system, especially in jurisdictions with a negative registration system such as South Africa
where the correctness of the register is not guaranteed. Chapter four illustrates this point
with reference to three liberal property theories, namely the Lockean labour theory, the
personality theory, as developed by Radin, and finally utilitarianism and law and economics
theory. These theories were chosen because they demonstrate interesting similarities with the
traditional justifications for prescription or adverse possession. When read together, these
theories indeed provide powerful justification for prescription in the context of a negative
registration system. Two factors in this context are that possessors in Radins terms
become attached to long-possessed property while law and economics theory predicts that
prescription helps to shift property to higher valuing-users (possessors) when the market
cannot perform this function due to high transaction costs.
These justifications are used in chapter five to determine whether prescription is in line with
section 25 of the South African Constitution. In this sense chapter five employs the
methodology set out by Ackermann J in First National Bank of SA Ltd t/a Wesbank v
Commissioner, South African Revenue Service and Another; First National Bank of SA Ltd
18
The reasons for omitting German law from this discussion are discussed in section 1.2 of chapter one above.
19
Land Registration for the Twenty-First Century: A Conveyancing Revolution Number 271 (July 2001); Land
Registration for the Twenty-First Century: A Consultative Document Number 254 (September 1998).
20
Section 58(1) of the Land Registration Act 2002 stipulates that the English register provides conclusive proof
of ownership.
296
t/a Wesbank v Minister of Finance (FNB)21 for adjudicating section 25 disputes. According
to this methodology, chapter five first determines whether prescription complies with section
25(1). In this sense the main issue is whether prescription amounts to arbitrary deprivation,
which would be in conflict with section 25(1). The chapter incorporates the moral and
economic conclusions drawn in chapter four and argues that prescription constitutes non-
arbitrary deprivation. This argument finds further support in the Grand Chambers decision in
Pye, where it held (the less onerous) adverse possession to be in line with Article 1 of the
First Protocol. In this sense the Grand Chambers decision provides authority from a
comparative law perspective that prescription with its stricter requirements ought to
comply with section 25(1). The next stage involves the question whether prescription
amounts to uncompensated expropriation contrary to section 25(2), a possibility that the
Fourth Chamber highlighted in the Pye case. In this regard chapter five also considers the
possibility that prescription could amount to constructive expropriation. I rule out both these
possibilities, namely expropriation and constructive expropriation, through an analysis of
South African expropriation law in terms of the FNB methodology. Consequently, chapter
five concludes that prescription amounts to non-arbitrary deprivation, which is in line with
the South African property clause.
6.2 Conclusions
6.2.1 The law pertaining to acquisitive prescription in South Africa and foreign
jurisdictions
Chapter two investigates the Roman and Roman-Dutch roots of prescription in modern South
African law. From its earliest days prescription had two main requirements, namely the
possession of property belonging to another for a certain period of time.22 A possessor
acquired ownership by way of original acquisition of ownership the moment he satisfied
these requirements. Furthermore, prescription seems to always have been regarded as a
mechanism through which de iure status was awarded to long-existing de facto situations. It
also served as punishment of those owners who introduced uncertainty into the law by
allowing others to possess their property for long periods of time. Roman-Dutch and South
African law received these grounds without question, since both systems regard them as still
providing valid justification for this rule.
21
2002 (4) SA 768 (CC).
22
297
Although the prescription acts only formalised South African prescription law fairly recently,
neither of them intends to codify the law of prescription and thus the common law remains an
important source in this regard.23 Chapter two establishes that the requirements for
prescription under the two prescription acts are similar, despite the difference in their
terminology.24 This proposition is supported by the fact that the animus domini25 element of
possessio civilis clearly corresponds to the openness and as if owner requirements under
the 1969 Act. In short to succeed with a prescription claim a possessor has to
continuously possess land openly and factually with the animus domini for an uninterrupted
period of 30 years without acknowledging the rights of the owner. Ownership vests in the
possessor ex lege the moment he satisfies all these requirements.
Chapter three which comprises a comparative analysis examines the requirements of

prescription or adverse possession in English, Dutch, French and German law. Although
English adverse possession law underwent alterations with the enactment of the LRA, it was
necessary to investigate how adverse possession operated both before and after the 2002 Act
came into operation. This is because the Pye case originated before the LRA came into effect,
while that Act now provides comprehensive protection to owners of registered land against
the extinguishing effect of adverse possession. Despite the extra protection afforded to
owners of registered land, chapter three establishes that the substantive requirements of
adverse possession before and after 2003 remain the same. In this sense the chapter
recognises that adverse possession differs from prescription, since a person must merely
intend to possess land (animo possidendi) to acquire title to it through adverse possession.
This stands in contrast to prescription in the civil law systems, where the required intention is
always animus domini. Accordingly, it is easier to succeed with an adverse possession
claim under these circumstances than it would be in a jurisdiction that requires animus domini
for purposes of prescription. This can lead to instances of hardship, as was observed in the
Pye case where the Grahams succeeded with an adverse possession claim pertaining to the
registered land of Pye. The animus possidendi can even co-exist with a willingness to pay
rent to the owner, which was indeed the case in Pye, where the Grahams were prepared to
rent the land. Such a willingness negates the animus domini in civil law systems, which then
23
See section 15(1) of the Prescription Act 18 of 1943, together with the discussion in section 2.3.1 of chapter
two above.
24
This is discussed in greater detail in sections 2.3.1-2.3.2 of chapter two above.
25
Intention of an owner.
298
interrupts the running of prescription.26 Nonetheless, this possible injustice is now countered
by the LRA, which prevents the loss of registered title through the mere passage of time. In
this sense adverse possessors must now first apply to the registrar of the Land Registry after
having been in adverse possession for 10 years.27 The registrar in turn notifies the
registered owner, who may then elect to reject the adverse possessors claim and institute
eviction proceedings. These alterations were made in light of the fact that the LRA now
deems the register to provide conclusive proof of title. Consequently, the Law Commission
found that the traditional justifications for adverse possession in relation to unregistered land
do not apply in the context of registered land when the law guarantees the correctness of the
register. This stands in contrast to countries, such as South Africa, where land is also
registered, but where the register does not provide conclusive proof of ownership. Against
this background the Law Commission decided to introduce mechanisms through enacting
the 2002 Act that protect registered owners against losing title according to the old rules
of adverse possession. German law follows a similar approach, since the Grundbuch also
provides conclusive proof of ownership.28 Consequently, in German law a possessor must not
only possess the land animo domini for a period of 30 years, but he must also (erroneously)
have been registered as the owner of that piece of land in the Grundbuch for the duration of
the 30-year period.29 These two jurisdictions illustrate that the requirements for adverse
possession and prescription are much stricter when the correctness of the register is
guaranteed.
The requirements for prescription in Dutch and French law are found to be remarkably
similar to those in South African law. Both Dutch and French law also require the possessor
to factually possess the land animo domini for an uninterrupted period of time without
acknowledging the rights of the owner.30 The length of the period required for prescription
depends on whether the possessor was bona or mala fide, a distinction that is less relevant in
South African law, where the period is set at 30 years for both good and bad faith possessors.
Dutch and French law both have a 10-year period for good faith possessors, while 20- and
26
For the position in South African law, see the discussion in section 2.3.2.1.1 of chapter two above.
27
The alterations by the Land Registration Act 2002 are discussed in greater detail in section 3.2.4 of chapter
three above.
28
BGB 891 I.
29
ed 2009) 900 RdNr 5.
30
The requirements for prescription in Dutch and French law are discussed in sections 3.3.2.2 and 3.4.2
respectively of chapter three above.
299
30-year periods are required in Dutch and French law respectively for bad faith possessors.
Chapter three establishes that the protective mechanisms of English and German law are
absent in South African, Dutch and French law. The reason for this phenomenon is the fact
that the latter three jurisdictions each employ a negative registration system, which does not
provide conclusive proof of ownership. Therefore, chapter three establishes that possession
plays a more important role in countries with a negative registration system to ensure that
ownership and possession coincide, especially in situations where there may be defects as to
ownership in the register.
The comparative analysis shows that special safeguards exist in systems with a positive
registration system, where the correctness of the register is guaranteed. This is because the
register supplanted the role of possession to ensure that ownership and possession
correspond. Accordingly, English and German law do not regard the traditional justifications
for adverse possession or prescription as applying to situations where the identity of the
owner may be conclusively determined by investigating the register.
6.2.2 The justification for acquisitive prescription

Chapter three establishes that certain safeguards exist to protect registered owners from
losing ownership through mere adverse possession or prescription in jurisdictions with a
positive registration system, such as modern English and German law. These protective
mechanisms are absent in countries with a negative registration system, as is the case with
South African, Dutch and French law. However, these systems require animus domini for
purposes of prescription, which prevents the easy acquisition of ownership when one
compares it to the animus possidendi requirement in adverse possession law. In this sense
chapter four analyses the justifications for prescription in an attempt to explain the presence
of the protective mechanisms in a positive registration system. Therefore, this chapter sets out
to establish what the traditional justifications for prescription within a legal system are and
whether they are still valid today.
Chapter four discovers that two main justifications are advanced in favour of prescription in
Roman-Dutch, South African, Dutch and French law, namely that (i) it fulfils a corrective
300
function and (ii) that it punishes neglectful owners.31 The first justification is found in all four
systems and is premised on the argument that de iure status should be given to long-standing
factual realities to prevent situations where possession and ownership may come to be out of
kilter. This is because possession provides the strongest proof of ownership in jurisdictions
where the information in the register may be defective. This justification also encompasses
the fact that prescription prevents the so-called probatio diabolica (devils burden) one faces
if prescription is not available to help prove ownership. The second justification, which
carries more weight in Roman-Dutch and South African law than in Dutch and French law, is
that an owner who causes legal uncertainty by allowing another to possess his land for a
long period of time should be punished by losing ownership of that land. This justification
is sometimes expressed positively, namely that it encourages owners to make active use of
their land. Little or no criticism concerning these justifications exists in the four legal systems
under discussion, which indicates that these jurisdictions still regard them as able to justify
prescription. English law stands in contrast to this seemingly uncritical approach, where the
English Law Commission recently re-evaluated the rationale behind adverse possession.
Although English law also recognises the legal certainty and punishment justifications in the
context of adverse possession, the Law Commission rejected these grounds in the context of
registered land when the identity of the owner may be discovered by investigating the
register. In this regard the Law Commission relied on an article by Dockray,32 who criticises
the traditional justifications pertaining to adverse possession. This criticism, coupled with the
fact that English law was to adopt a positive registration system under the LRA, was
sufficient for the Law Commission to abolish adverse possession in its traditional form. Yet,
some authors such as Dixon, Clarke, Cobb and Fox criticise the Law Commission for not
considering moral and economic justifications when it decided to amend the rules of adverse
possession concerning registered land.33 These developments in English law necessitated an
evaluation of the justifications provided for prescription in South African law. Chapter four
considers the labour theory, personality theory and utilitarianism and law and economics
theory as sources of possible justifications for this legal institution, especially because these
31
German law is omitted from this discussion for reasons set out in section 1.2 of chapter one above.
32
33
Conveyancer 136-156; Clarke A Use, Time, and Entitlement (2004) 57 Current Legal Problems 239-275;
Act 2002 (2007) 27 Legal Studies 236-260.
301
theories are analogous to the traditional justifications provided for prescription in South
African law.
The first theory one can consider to justify prescription is the Lockean labour theory.
According to Locke, man has property in his own person and is able to acquire ownership in
things by taking it out of the commons and through mixing labour with it.34 Against this
background it will be of no use for someone else to mix labour with it ex post. It follows that
the labour theory apparently prohibits the non-contractual redistribution of ownership.35
This characteristic prima facie seems to prevent the labour theory from allowing prescription,
since prescription by its very nature results in a form of redistribution of ownership by taking
ownership away from the original owner and awarding it to the possessor. However, Cobb
and Fox argue that a squatter who occupies land and invests labour in it can obtain a labour
theory claim in that property if the owners non-use or neglect of land amounts to quasi-
abandonment.36 This argument is strengthened in a setting such as South Africa, where the
dire need for housing can undermine an entitlement to neglect land that in turn allows
people to occupy vacant land for long periods of time. The quasi-abandonment argument also
finds support in certain qualifications put forward by Locke himself as to the applicability of
his theory. According to Locke, his theory will only be permitted as a method of acquisition
of ownership at least where there is enough, and is good left in common for others.37 This
means that Locke only regards his theory as a justifiable method of acquisition of ownership
as long as there remain enough unowned things in the commons for other people to
appropriate. Therefore, chapter four proposes that the labour theory should permit
prescription in a modern world with scarce resources when some owners allow their
property to be used for long periods of time by others.
Although Cobb and Fox specifically structure their quasi-abandonment argument in the
context of urban squatters, through analogy it can also be made applicable to squatters of
unused rural land. Such an interpretation finds support in a further qualification of Locke,
namely that no one may appropriate more from the commons than he is able to use or enjoy.
Should a person take more from the commons than he is able to use, such property will spoil,
34
Locke J Two Treatises of Government (1690, Laslet P ed 1963) 26-28, 44.
35
36
37
302
which causes it to belong to others.38 An argument to this effect is strengthened by Lockes
disapproval of owners that do not use their land, which causes it to spoil. Since such spoilt
land reverts to or remains in the commons, possessors are able to obtain a labour theory claim
in that property through mixing labour with it. This is similar to situations where owners have
more land than they are able or willing to look after, which can cause a squatter to take
possession of that land and start investing energy and labour in it.
Another complication in justifying prescription under the labour theory is the role of time in
this framework, as Epstein points out.39 Once a person acquires ownership in an object by
taking it out of the commons and mixing his labour with it, it appears that the owners
entitlement in that object is then fixed forever. This seems to once again disallow
prescription under the labour theory, since prescription entails that a person acquires
ownership in an object through continuous and undisturbed possession over time. If time
plays no role, then acquisition through prescription will be impossible. Nonetheless, Epstein
overcomes this problem through his doctrine of relative title, which doctrine recognises the
role of the temporal dimension in the context of competing claims. According to this
doctrine, prescription resolves conflicting claims to ownership since time eradicates
evidence of ownership by awarding ownership not to the first possessor (owner), but to the
prior possessor (squatter).40 Consequently, this chapter establishes that it is possible to justify
prescription under the labour theory if one incorporates this temporal dimension into Lockes
theory.
For these reasons I argue that the labour theory due to the qualifications built into it by
Locke and the interpretation supplied by Epstein, Cobb and Fox is able to justify the
acquisition of ownership by a purposeful possessor through prescription. It seems that the
subjective intent of the possessor in terms of mala fide prescription plays no meaningful
role in the labour theory, as the central question is merely whether someone mixed his labour
with an object. Since it is possible that even a mala fide person can mix labour with
something, it appears that the labour theory is also able to justify bad faith prescription.
38
39
University Law Quarterly 667-722.
40
303
The second liberal theory that can justify prescription is Radins personality theory,41 which
entails that people require ownership of objects to facilitate healthy self-constitution. Radin
relies on Hegels personality theory to establish her theory. The strength of the relationship
that forms between a human and property is assessed by determining the pain42 a person
suffers should he lose property in some way. Consequently, if property was constitutive of
someones personhood it will be impossible to relieve the pain caused by the loss of such
property through simply receiving its monetary equivalent. In this regard Radin distinguishes
between personal and fungible property, the former type encompassing property to which
someone is attached as a person, while the latter kind entails property that is perfectly
replaceable with the monetary value of the object. However, not all instances of personal
property will always be constitutive of someones personhood, as there are also unhealthy
ways through which persons may become bound up with property. In this instance Radin
states that property relationships that are fetishistic in nature should not receive the same
protection afforded to relationships that are truly personal. In this context personal and
fungible property form two ends of a continuum. Accordingly, relationships located closer to
the personal side of the continuum must enjoy more protection than those nearer the fungible
end.
It is through the dichotomy between personal and fungible property that Radins personality
theory can justify prescription. In a typical prescription case, the possessor will be in direct
contact with the property and it is likely that he will regard it as personal property, especially
if the possessor occupies the property as a home. In contrast, the owner through his absence
is likely to view the property as fungible, which entails that the possessors interest in the
property should receive preference over those of the owner. Such a conclusion also finds
support in Grays theory of moral excludability, especially when the limitation of the owners
ownership through prescription is in line with public morality.43 It follows that claims to
property may sometimes be overridden by the need to attain or further more highly rated
social goals,44 such as protecting peoples homes. This line of thinking is analogous to the
41
Radin MJ Property and Personhood (1982) 34 Stanford Law Review 957-1015.
42
This pain can be equated to what Michelman FI Property, Utility, and Fairness: Comments on the Ethical
Foundations of Just Compensation Law (1967) 80 Harvard Law Review 1165-1258 1214 describes as
demoralization costs, a connection already made by Ellickson RC Adverse Possession and Perpetuities Law:
737 727-728.
43
Gray K Property in Thin Air (1991) 50 Cambridge Law Journal 252-307 280-292.
44
Gray K Property in Thin Air (1991) 50 Cambridge Law Journal 252-307 281.
304
position in German constitutional law, where it is held that the further a property interest is
located outside the sphere of personal autonomy of the owner, the greater the extent to which
the state may regulate the limits of that property right. In other words, if an absent owner
attaches purely commercial value to property, it will be justifiable to protect the interests of
the possessor (and to limit the property right of the owner) through prescription if he occupies
it as a home for a long period of time. The theories of Holmes, Singer and Alexander also
support such a prediction. Holmes states that property that has been possessed for a long time
by a possessor even though such possessor may not be the owner becomes bound up with
him and cannot be taken away from the possessor without [him] resenting the act.45
Holmes thinks that long instances of undisturbed possession should be left untouched, since
the property becomes part of the being of the possessor through continuous possession.
According to Singers theory of the reliance interest in property,46 a possessors interest in
property grows stronger the longer the owner allows the possessor to be in possession
through his neglect of the property. The owner induces the possessor to rely on the fact that
his possession will not be disturbed, since such owner creates the impression that the
possessors possession of the property is legitimate. Indeed, the longer the possessor is in
possession, the more the owners interest in the property diminishes. This also induces the
possessor (as well as third parties) to believe that the he and not the owner is the true
owner of the land. Prescription thus enters the picture, as it allows the possessor to acquire
ownership to protect his interests in the property.
Alexanders social-obligation theory provides a unique perspective on the moral obligations

of owners vis--vis the community. According to him, a person must develop his capabilities
in order to live a well-lived life (or to flourish as a human being).47 However, individuals
depend on others (the community) to attain human flourishing, since no-one can acquire
these capabilities or secure the resources to acquire them by ones self.48 It follows that
Alexander requires two elements for purposes of developing ones capabilities to flourish,
namely community life and property (such as land). In this sense Alexander states that
45
Holmes OW The Path of the Law (1897) 10 Harvard Law Review 457-478 477.
46
This theory was developed by Singer JW The Reliance Interest in Property (1988) 40 Stanford Law Review
611-751.
47
820 761.
48
820 765. See further Alexander GS & Pealver EM Properties of Community (2008) 10 Theoretical Inquiries
in Law 127-160 134-135.
305
owners who unavoidably depend on people in the community to develop their capabilities
to achieve human flourishing are socially obliged to help others to nurture their capabilities
to flourish. This obligation forms the crux of Alexanders social-obligation norm. For
example, if an owner has allowed a squatter to possess his land for a long period of time, it
is clear that the owner must view the land as unimportant for fostering his capabilities. Yet,
the same land may with the effluxion of time become essential to the squatter for
purposes of attaining human flourishing, especially if he occupies it as a home (ie personal
property). Under these circumstances, the social-obligation norm obliges the owner, for
whom the land is insignificant, to give it to the squatter to help develop his capabilities to
lead a well-lived life. In this regard prescription recognises the social-obligation norm by
awarding ownership of the land to the squatter at the expiration of the prescription period.
Time plays a more direct role in the personality theory than in the labour theory, since a
persons relationship with an object can intensify or diminish with the passing of time.
Accordingly, over time a possessor may come to regard property as personal while an owner
may start to treat it as fungible the longer he is out of possession. The only problem in this
context is to determine at what point in time the possessors relationship is sufficiently
personal as opposed to the fungible interest of the owner to justify the acquisition of
ownership by the possessor through prescription. While Radin does not provide clear
guidelines for making this call, I propose that it may be best to adopt a fixed time period as
opposed to one established on a case-by-case basis. This solution is similar to Merrills
suggestion that prescription ought to operate as a mechanical entitlement determination
rule.49 Although a comparative legal analysis does not assist in discerning which period of
time is sufficient, chapter four indicates that the 30-year period in South African law
which is the longest period in comparison to English, Dutch, French and German law may
be long enough, from an economic perspective, to justify the acquisition of ownership
through prescription. Although Radin does not expressly exclude bad faith prescription, she
does mention that bona fide possessors are more likely to succeed under her theory than mala
fide possessors.50
49
Law Review 1122-1154 1137-1145.
50
306
Utilitarianism and law and economics theory provide the third ground for justifying
prescription. These two theories are discussed together, since both aim to maximise utility,
albeit in different contexts. Utilitarianism attempts to maximise overall happiness for the
greatest number of people,51 while law and economics theory seeks to enhance economic
efficiency by lowering transaction costs.52 Chapter four recognises that Mills theory of
utilitarianism provides greater justification for prescription than Benthams theory, since Mill
tries to establish a relationship between utility and justice.53 According to Mill, one can
maximise happiness through identifying and then eliminating instances of injustice, which
in the context of prescription is the protection of long-term possession. Under these
circumstances Mill argues that it will be a greater injustice if the law allows the owner to
reclaim the property than if it permitted the possessor to keep it.54 This argument provides a
powerful justification for prescription in the context of neglectful or absent landowners,
especially against the background of the theories of Radin, Holmes, Singer and Alexander.
Since time is important in the context of prescription, it seems that rule-utilitarianism one of
the two forms of utilitarianism better suits a regime that allows prescription than act-
utilitarianism. This is because rule-utilitarianism attempts to maximise utility or happiness in
the long run by laying down certain (moral) rules, while act-utilitarianism aims to
maximise utility right now.55 Furthermore, rule-utilitarianism is able to clear titles and to
resolve disputes about ownership, especially in the context of Epsteins doctrine of relative
title.56 These effects are similar to Merrills proposition that prescription must operate as a
mechanical entitlement determination rule, which increases utility from an economic
perspective.57 Since rule-utilitarianism aims to maximise happiness by clearing titles and
resolving disputes over ownership in the long run, it appears to disregard the subjective intent
of the possessor. Therefore, chapter four regards rule-utilitarianism as being able to justify
both good and bad faith prescription.
51
52
260 246.
53
54
Mill JS Principles of Political Economy (1902) 134-135 2.
55
56
University Law Quarterly 667-722 674-675.
57
Law Review 1122-1154 1137-1145.
307
The main objective of law and economics theory is to structure the law in such a way as to
promote economic efficiency. To achieve this end law and economics theory distinguishes
between scenarios involving low transaction costs and those with high transaction costs.
According to the Coase theorem, property rights must receive greater protection in settings
where transaction costs are low. 58 Under these circumstances, voluntary exchange will occur
in the market when non-owners attach greater value to the property of others. However, if
transaction costs are high, the law must provide mechanisms through which property may be
shifted to the higher-valuing party, since the market will then be unable to perform this
function.59 To determine whether prescription qualifies as such a mechanism, I investigate the
costs pertaining to prescription in the context of (i) owners, (ii) possessors, (iii) third parties
and (iv) litigation.60
Chapter four recognises the importance of demoralization costs61 for purposes of the
economic analysis of prescription. According to Michelman, a person suffers greater
demoralisation if he regards the loss of property through mechanisms like prescription as
wrongful. For instance, chances are better that an owner may lose ownership through
innocence or mere inattention in a regime with a shorter prescription period. Owners are
likely to suffer severe demoralisation under these circumstances, as they normally do not
expect to lose ownership in this manner. However, if the prescription period is long, an owner
has more time to monitor his property and to evict possessors that may be clocking up time.
Should an owner lose land under these circumstances, the negative effects of demoralisation
seem to decrease. This is because an owners relationship towards property in Radins
terms may become more fungible the longer he is out of possession. It follows that the
longer the period for prescription, the lower the costs an owner suffers in terms of
demoralisation. The same applies to an owners costs pertaining to the monitoring of the
property and uncertainty as to ownership.
58
The Coase theorem was developed by Coase R The Problem of Social Cost (1960) 3 Journal of Law &
Economics 1-44.
59
60
The costs of prescription in these four contexts are discussed in section 4.4.4 of chapter four above.
61
Michelman FI Property, Utility, and Fairness: Comments on the Ethical Foundations of Just Compensation
Law (1967) 80 Harvard Law Review 1165-1258 1214. Ellickson RC Adverse Possession and Perpetuities
723-737 728 made the connection by using demoralization costs in the context of prescription.
308
Three types of costs are of interest in the context of the possessor, namely preying,
uncertainty and demoralisation costs. Preying involves the possessors attempts to obtain
legal advice regarding his prescription claim; uncertainty entails the anxiety a possessor
experiences before the prescription period is complete; while demoralisation illustrates how
attached a possessor becomes to the property. The shorter the prescription period, the lower
these costs, since a possessor then has less time to obtain legal advice, become anxious
because of settled expectations (in terms of Singers reliance interest) or to become
attached to the property. However, the longer the period, the higher these costs become,
especially since a possessor may come to regard the property as personal after possessing it
for a long time. This latter point also finds support in the theories of Radin, Holmes, Singer
and Alexander. When viewed together, these factors provide strong economic justification for
the acquisition of ownership by the higher-valuing possessor through prescription if the
possessor has been in possession for a sufficient length of time, especially if the presence of
high transaction costs prevents a voluntary transfer in this regard.
Prescription not only reduces transaction costs in the context of the owner and possessor, but
also for third parties. Since the law does not guarantee the correctness of the register in a
negative registration system, the costs of investigating the (possibly incorrect) register must
be weighed up against the costs pertaining to a physical inspection of the land to determine
who owns it. This chapter predicts that prescription with longer periods reduces transaction
costs relating to inspection, uncertainty of ownership and searching of the records, since third
parties may simply disregard (erroneous) information in the register that predates the
prescription period. This proposition is in line with Epsteins doctrine of relative title, which
states that prescription aids the process of clearing titles and resolving disputes as to
ownership. However, the economic conclusions drawn in relation to third parties are limited
to a negative registration system, since possession fulfils a more important role in such a
system than in jurisdictions with a positive registration system, as seen in modern English
and German law.
The fourth category of costs pertains to litigation, which consists of (i) the outlays on
litigation and (ii) the costs of erroneous legal decisions. The sum of these costs must be kept
as low as possible in order to maximise economic efficiency. The costs pertaining to
litigation increase with the number or outlays and the complexity of cases coming to court. In
this sense prescription with longer periods reduces litigation costs because it awards
309
ownership to possessors over time, which in turn decreases the number of cases coming to
court. Although this does not adequately address the issue of complexity, this problem is
circumvented in that prescription simplifies the process of proving ownership because it
vests ownership in the person who has been in possession for a substantial period of time.
This eliminates the problems pertaining to stale claims and loss of evidence that normally
contribute to the average complexity of cases, which causes litigation costs to increase.
When the costs from these four categories are viewed together, chapter four establishes that
prescription indeed shifts valuable resources through original acquisition of ownership to
higher-valuing possessors in settings where transaction costs are high, since it lowers
transaction costs in this context. Under these circumstances the Coase theorem regards
prescription as a mechanism to affect exchange in situations involving high transaction costs.
Merrill is also of the opinion that prescription achieves this reduction in transaction costs,
especially if it operates as a mechanical entitlement determination rule where courts have
little or no discretion to establish substantive and remedial rights.62 Finally, I argue that the
fides of the possessor is irrelevant in terms of an economic analysis, since it will increase
costs if one has to ascertain the subjective intent of a possessor. Thus, chapter four regards
the distinction between good and bad faith prescription as irrelevant in the framework of law
and economics theory.
Not only do these three liberal theories seem to justify prescription, they also appear to
accommodate bad faith prescription to a large degree. Nonetheless, this chapter investigates
this topic separately, since the acquisition of ownership through bad faith possession
represents a significant qualification of the rights paradigm.63 Although many authors
oppose bad faith acquisition of ownership through prescription, some provide strong
arguments in favour of this phenomenon, such as Fennell, Pealver and Katyal. In this sense
Fennell states that bona fides and mala fides are unsuitable labels for purposes of
prescription.64 Instead, she divides these two instances of possession into possessors who are
advertent and those who are inadvertent. Through her doctrine of efficient trespass,
coupled with two economic requirements that need to be satisfied before prescription may be
62
Law Review 1122-1154 1137.
63
64
310
allowed,65 Fennell indicates that the supposedly simple distinction between good and bad
faith possession is not as clear-cut as it initially seems. She focuses on the attempts of
possessors to obtain knowledge as to whether their possession qualifies as advertent or
inadvertent, and mentions that some parties may employ the absolute minimum effort to
obtain information regarding the legitimacy of their occupation. Against this background
Fennell concludes that knowledge is an unstable criterion to determine whether a possessor is
in good or bad faith. Another aspect of her theory entails an inquiry into the conflation of law
and morality in the word thief, as bad faith possessors are usually regarded as land
thieves. Fennell argues that the bad faith possessor cannot be legally blamed for using the
law to obtain ownership, since it is actually governmental power instead of possession
that extinguishes ownership on the side of the owner. She counters possible criticism from a
moral viewpoint on two grounds, namely that (i) prescription requires a substantial period of
time, together with the fact that (ii) an owner merely has to assert his ownership to prevent
prescription from running. On the basis of these two grounds she argues that it is unlikely that
the mere presence of the possessor on someones land will pain the owner. Instead, it is the
loss of ownership through prescription that pains the owner, not the possession of the person
who occupies the land. According to Fennell, this pain will occur despite the fides of the
possessor, which suggests that both good and bad faith prescription must be abolished if one
wants to prevent this state of affairs.
Pealver and Katyal also illustrate the positive role bad faith prescription plays through
focusing their attention on so-called acquisitive [property] outlaws. These authors state that
bad faith possessors (ab)use property law rules to bring about necessary changes in a legal
system. For example, prescription moves fungible property out of the hands of owners and
awards it to non-owners who are normally isolated from social and commercial activity.66
Pealver and Katyal acknowledge that property is important for individual autonomy and
recognise the role of Radins theory in their theoretical framework. Economic justifications
for prescription are also prevalent in their work, since Pealver and Katyal admit that
prescription operates as a tool to transfer property to higher-valuing possessors when high
transaction costs prevent voluntary exchange. Although it may not always be simple to
65
These are that (i) there must be a substantial difference in the parties valuation of the land and (ii) a market
transaction must be unavailable: See Fennell LA Efficient Trespass: The Case for Bad Faith Adverse
Possession (2006) 100 Northwestern University Law Review 1037-1096 1040-1041.
66
1186 1132.
311
determine whether the possessor values the property more highly than the absent owner,
factors such as the length of the prescription period and the wealth of the possessor vis--vis
the owner may contribute to a result that favours the possessor. Furthermore, Pealver and
Katyal argue that bad faith acquisition of ownership is permissible in terms of objective
distributive justice if the possessor had real need of the land from the owner.
Finally, chapter four considers whether Radins personality theory applies in the context of
bad faith possessors. Radin thinks that her theory is unable to accommodate these persons,
since it is apparently unclear how a mala fide person can become bound up with property.
I argue that her theory can include this seemingly anomalous instance, especially if one
focuses on the foundation of Radins theory, namely Hegel. According to Hegel, a person
must invest his will into a thing together with possessing it before he can acquire ownership.
The fides of that person seems to be irrelevant for Hegel, since even someone in bad faith can
have the will to acquire ownership in an object. The arguments put forward by Fennell,
Pealver and Katyal strengthen such a proposition, since these authors are of the opinion that
the subjective intent of the possessor is irrelevant for the purposes served by prescription.
This is especially true in the context of homeless persons who occupy the property of others
as a home, as Cobb and Fox emphasise. Therefore, chapter four establishes that there is no
true benefit in distinguishing between good and bad faith possessors, which position is in
accordance with prescription law in South Africa.
6.2.3 Acquisitive prescription in view of the property clause

Chapter five considers whether prescription is in line with section 25 of the South African
Constitution. Since the law through prescription affects the loss of ownership by vesting it
in the possessor, the issue is whether such loss amounts to a constitutional infringement of the
property right concerned, namely ownership. To this end I employ the methodology set out in
FNB, since any deprivation of property or property rights must be in line with section 25 to
be constitutionally compliant.
When a possessor acquires ownership in land through prescription, the landowner is deprived
of his ownership in that land. The first stage in terms of the FNB methodology is to establish
whether that which is taken away from the owner amounts to property. This question is
easily answered when considering prescription of land, since the Constitutional Court held in
312
FNB that ownership of movables (and thereby also immovables) is central to the concept of
property in South African constitutional law.67 As to the second stage of the inquiry, namely
whether prescription amounts to deprivation of property, chapter five indicates that
prescription of land does qualify as a deprivation for purposes of section 25(1). It follows that
prescription of land, which entails a deprivation of property, has to comply with the
requirements set out in section 25(1). The requirements for deprivation under section 25(1)
are that (i) it must take place in terms of law of general application and (ii) such law may not
permit arbitrary deprivation. Since the prescription acts clearly constitute law of general
application, the main issue is whether or not prescription results in arbitrary deprivation. To
answer this question, the chapter determines whether sufficient reasons exist for the
deprivation and whether it is procedurally fair.68 Prescription will be procedurally unfair if
there are insufficient procedural safeguards that protect the rights of owners. This chapter
establishes that prescription is procedurally fair, since ownership is not easily lost due to
reasonably strict requirements for prescription in South African law, especially the fact that a
person must possess property animo domini. Furthermore, the 30-year period within which an
owner may assert his rights and interrupt the running of prescription reinforces the security of
ownership.
The second leg of the arbitrariness test, also known as the substantive arbitrariness test,
entails whether there exists a sufficient nexus between the effects of prescription and the
purpose it serves. In other words, the chapter had to determine whether the deprivation
caused by prescription is arbitrary. The Constitutional Court found that the substantive
arbitrariness test is contextual and will depend on the facts of each case. The scope of the
deprivation determines whether the substantive arbitrariness test will involve a rationality- or
proportionality-like investigation, since instances of severe deprivation require stronger
justification than those that are of a lesser degree. Since prescription results in the loss of
ownership, it is clear that convincing reasons need to be advanced for it to pass scrutiny
under section 25(1). To this end I employ the justifications for prescription identified in
chapter four, namely that it fulfils a corrective function in jurisdictions with negative
registration systems by lowering transaction costs in terms of utilitarianism and law and
economics theory. Furthermore, the strict requirements for prescription coupled with a very
67
68
313
long 30-year period are hard to satisfy, which is reinforced by the fact that an owner need
only take minimal steps to prevent the running of prescription. In addition, the fault for the
loss of ownership can be laid at the door of the owner, since he through negligence or
inactivity induces the possessor to rely, in the words of Singer, on the legitimacy of his
possession. In this context Alexanders social-obligation norm obliges the owner to give
the land to the squatter, especially if it becomes essential for such squatter to attain human
flourishing. Finally, the possessor becomes attached to the property in terms of Radins
personality theory, especially when read together with the theories of Singer, Holmes and
Alexander. This latter point also finds support in German constitutional law, which holds that
property located further from the personal autonomy of an owner is subject to greater degrees
of regulation or deprivation from the state. Consequently, chapter five concludes that
sufficient reasons exist to declare that prescription amounts to non-arbitrary deprivation of
property, which is similar to the conclusion reached by the Grand Chamber in Pye. This
finding by the Grand Chamber is indeed significant, since it found that adverse possession,
which merely requires possession animo possidendi, is in line with Article 1 of the First
Protocol. This finding provides authority from a comparative law perspective that
prescription with its stricter requirements is likely to amount to non-arbitrary deprivation
of property in terms of section 25(1).
The next stage in the FNB methodology concerns the question whether prescription could
perhaps amount to uncompensated expropriation, which would be in conflict with section
25(2). This possibility was highlighted by the decision of the Fourth Chamber in Pye, which
found that adverse possession constituted uncompensated expropriation. Chapter five predicts
that prescription cannot amount to expropriation, since all expropriations must take place in
accordance with empowering legislation.69 Since the prescription acts do not empower the
state to expropriate and, further, make no provision for the payment of compensation to an
owner losing ownership, it is highly unlikely that prescription could amount to
expropriation.70 This conclusion is strengthened by the fact that common law expropriation is
unknown in South African law, since an act of expropriation must rest upon a legislative
foundation.71 Therefore, the state can only decide to expropriate if such power is granted
69
Joyce & McGregor Ltd v Cape Provincial Administration 1946 AD 658 671.
70
This issue is discussed in more detail in section 5.3.2.6 of chapter five above.
71
Joyce & McGregor Ltd v Cape Provincial Administration 1946 AD 658 671; Harvey v Umhlatuze
Municipality and Others 2011 (1) SA 601 (KZP) para 81.
314
through legislation, which legislation must specifically empower the state for this purpose.72
Furthermore, there is no common law authority for South African courts to order
expropriation, as this power must be granted through empowering legislation. The
prescription acts do not empower a court to order expropriation, which is yet another
indication that it cannot amount to expropriation. This chapter also considers the possibility
that prescription may amount to constructive expropriation. In this sense chapter five
supports the argument that if one adheres to the methodology set out in FNB, together with
judgments from the highest courts in South Africa,73 it seems as if this doctrine does not form
part of South African law. Van der Walt advocates this argument, since he states that the
doctrine of constructive expropriation probably does not and should not find application in
South African law.74 The chapter indicates that it is unnecessary to consider whether
prescription may be classified under this doctrine, since constructive expropriation does not
form part of South African law. Consequently, I conclude that prescription complies with
section 25 of the South African Constitution.
6.3 The future of acquisitive prescription in South African law

In this dissertation I have shown that prescription, in its current form, is in line with the
property clause of the South African Constitution. This will be the case as long as South
Africa uses a negative registration system, for prescription will then continue to fulfil the
corrective function of affording de iure status to long-existing de facto realities through
clearing titles and resolving conflicting claims pertaining to ownership. Accordingly,
prescription shifts resources to higher-valuing possessors because it lowers transaction costs
in instances where the market is unable to facilitate this transaction. From a moral
perspective, prescription rewards those who invest time and energy into property, since it
awards ownership to them and protects the settled expectations of possessors through
recognising their reliance interest. In this sense possessors become attached to property,
which (personal) attachment must enjoy protection over the fungible interests of neglectful or
absent landowners.
72
73
Government, and Another 2009 (6) SA 391 (CC); Steinberg v South Peninsula Municipality 2001 (4) SA 1243
(SCA).
74
315
Although chapter four establishes that the distinction between good and bad faith rests on
fallacious arguments, it could be advantageous to have a future study that investigates
whether a shorter prescription period needs to be introduced into South African law for bona
fide possession.75 Such an amendment could be sensible if it is able to rectify defective
transfers that, but for a certain legal impediment, would constitute valid transfers of
ownership. This argument is central to why Dutch and French law have shorter periods for
good faith prescription. However, this dissertation in no way suggests that such an alteration
be made to South African law, which has a period of 30 years for both good and bad faith
prescription.
75
I am indebted to Prof van der Walt for discussions that helped me form this opinion.
316
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thesis University of Cambridge
Wessels JW History of the Roman-Dutch Law (1908) Grahamstown: African Book Company
Ltd
Winfield PH Ethics in English Case Law (1932) 45 Harvard Law Review 112-135
325
CASES
South Africa
Albert and Others v Ragaven 1966 (2) SA 454 (D)
Albert Falls Power Co (Pty) Ltd v Goge 1960 (2) SA 46 (N)
Barker NO v Chadwick and Others 1974 (1) SA 461 (D)
Belinco (Pty) Ltd v Bellville Municipality and Another 1970 (4) SA 589 (A)
Bisschop v Stafford 1974 (3) SA 1 (A)
Boshoff and Another v Reinhold and Co 1920 AD 29
Campbell v Pietermaritzburg City Council 1966 (2) SA 674 (N)
Cape Town Municipality v Fletcher and Carthwrights Ltd 1936 OPD 347
Cillie v Geldenhuys 2009 (2) SA 325 (SCA)
City of Cape Town v Abelsohns Estate 1947 (3) SA 315 (C)
De Beer v Van der Merwe 1923 AD 378
De Friedland Eiendomme (Pty) Ltd v Pretorius and Another (20744/2008) [2010] ZAGPPHC
95 (5 August 2010)
Du Toit v Minister of Transport 2006 (1) SA 297 (CC)
Du Toit and Others v Furstenberg and Others 1957 (1) SA 501 (O)
Ekurhuleni Metropolitan Municipality v Dada NO and Others 2009 (4) SA 463 (SCA)
Estate Dambuza v Estate Mcikwa 1946 NPD 94
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution

of the Republic of South Africa, 1996 1996 (4) SA 744 (CC)
Ex Parte Puppli 1975 (3) SA 461 (D)
First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service
and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA
768 (CC)
Forellendam Bpk v Jacobsbaai Coastal Farms (Pty) Ltd 1993 (4) SA 138 (C)
Glaston House (Pty) Ltd v Cape Town Municipality 1973 (4) SA 276 (C)
Harksen v Lane NO and Others 1998 (1) SA 300 (CC)
Harvey v Umhlatuze Municipality and Others 2011 (1) SA 601 (KZP)
326
Hayes v Harding Town Board and Another 1958 (2) SA 297 (N)
Hollmann and Another v Estate Latre 1970 (3) SA 638 (A)
Joles Eiendom (Pty) Ltd v Kruger and Another 2007 (5) SA 222 (C)
Joyce & McGregor Ltd v Cape Provincial Administration 1946 AD 658
Kruger v Joles Eiendomme (Pty) Ltd and Another 2009 (3) SA 5 (SCA)
Malan v Nabygelegen Estates 1946 AD 562
Minister van Landbou v Sonnendecker 1979 (2) SA 944 (A)
Minister van Lande v Swart en Andere 1957 (3) SA 508 (C)
Minister of Forestry v Michaux 1957 (2) SA 32 (N)
Minnaar v Rautenbach [1999] 1 All SA 571 (NC)
Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bissett and Others v
Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v MEC,
Local Government and Housing, Gauteng, and Others (KwaZulu-Natal Law Society and
Msunduzi Municipality as Amici Curiae) 2005 (1) SA 530 (CC)
Mocke v Beaufort West Municipality 1939 CPD 135
Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W)
Naude v Bredenkamp 1956 (2) SA 448 (O)
Nhlabathi and Others v Fick [2003] 2 All SA 323 (LCC)
Offit Enterprises (Pty) Ltd and Another v COEGA Development Corporation (Pty) Ltd and
Others 2011 (1) SA 293 (CC)
Payn v Estate Rennie and Another 1960 (4) SA 261 (N)
Pienaar v Rabie 1983 (3) SA 126 (A)
Ploughmann NO v Pauw and Another 2006 (6) SA 334 (C)
Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)
Pratt v Lourens 1954 (4) SA 281 (N)
Pretoria City Council v Modimola 1966 (3) SA 250 (A)
Rand Waterraad v Bothma en n Ander 1997 (3) SA 120 (O)
Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and Works, Gauteng
Provincial Government, and Another 2009 (6) SA 391 (CC)
327
Sapphire Dawn Trading 42 BK v De Klerk and Others (693/2008) [2009] ZAFSHC 11 (12
February 2009)
Smith and Others v Martins Executor Dative (1899) 16 SC 148
Steinberg v South Peninsula Municipality 2001 (4) SA 1243 (SCA)
Stephenson v Lamsley 1948 (4) SA 794 (W)
Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (A)
Texas Co (SA) Ltd v Cape Town Municipality 1926 AD 467
Van der Merwe v Minister of Defence 1916 OPD 47
Van Wyk and Another v Louw and Another 1958 (2) SA 164 (C)
Welgemoed v Coetzer and Others 1946 TPD 701
Wicks and Others v Place NO 1967 (1) SA 561 (E)
Wood v Baynesfield Board of Administration 1975 (2) SA 692 (N)
United Kingdom
ACourt v Cross (1825) 3 Bing 329
Allen v Matthews [2007] 2 P & CR 21
Beaulane Properties Ltd v Palmer [2006] Ch 79
BP Properties Ltd v Buckler (1987) 55 P & CR 337
Browne v Perry [1991] 1 WLR 1297
Buckinghamshire County Council v Moran [1990] Ch 623
Cholmondeley v Clinton (1820) 2 Jac & W 1
Clowes Developments (UK) Ltd v Walters [2006] 1 P & CR 1
Culley v Taylerson (1840) 11 A & E 1008
Edginton v Clark [1964] 1 QB 367
George Wimpey & Co Ltd v Sohn [1967] Ch 487
Hayward v Chaloner [1968] 1 QB 107
Hounslow London Borough Council v Minchinton (1997) 74 P & CR 221
328
Hughes v Cork [1994] EGCS 25
JA Pye (Oxford) Ltd and Another v Graham and Another [2000] Ch 676
JA Pye (Oxford) Ltd v Graham [2001] Ch 804
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419
Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912
Leigh v Jack (1879) 5 Ex D 264
Littledale v Liverpool College [1900] 1 Ch 19
Lodge v Wakefield Metropolitan City Council [1995] 2 EGLR 124
Marshall v Taylor [1895] 1 Ch 641
Nepean v Doe (1837) 2 M & W 894
Ocean Estates Ltd v Pinder [1969] 2 AC 19
Ofulue v Bossert [2009] UKHL 16
Paradise Beach Co Ltd v Price-Robinson [1968] AC 1072
Pavledes v Ryesbridge Properties Ltd (1989) 58 P & CR 459
Powell v McFarlane (1979) 38 P & CR 452
R v Secretary of State for the Environment, Ex parte Davies (1990) 61 P & CR 487
Rains v Buxton (1880) 14 Ch D 537
Roberts v Swangrove Estates Ltd [2008] Ch 439
Seddon v Smith (1877) 36 LT 168
Smith v Lawson (1998) 75 P & CR 466
Tecbild Ltd v Chamberlain (1969) 20 P & CR 633
Topplan Estates Ltd v Townley [2004] EWCA Civ 1369
Tower Hamlets London Borough Council v Barrett [2006] 1 P & CR 9
Treloar v Nute [1976] 1 WLR 1295
Walliss Cayton Bay Holiday Camp Ltd v Shell-Mex & BP Ltd [1975] QB 94
Wretham v Ross [2005] EWHC 1259 Ch
329
The Netherlands
HR 20 February 1987, NJ 1987, 1002
HR 7 March 1980, NJ 1980, 549
HR 3 May 1996, NJ 1996, 501
HR 10 June 1983, NJ 1984, 294
HR 20 June 1997, NJ 1999, 301
HR 8 September 2000, NJ 2000, 629
HR 30 November 1945, NJ 1946, 49
HR 18 November 2005, NJ 2006, 150
European Court of Human Rights
Allgemeine Gold- und Silberscheideanstalt v United Kingdom (1987) 9 EHRR 1
Anheuser-Busch Inc v Portugal (2007) 45 EHRR 36
Beyeler v Italy (2001) 33 EHRR 52
JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV)
JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC)
Jahn v Germany (2006) 42 EHRR 49
James v United Kingdom (1986) 8 EHRR 123
Sporrong and Lnnroth v Sweden (1983) 5 EHRR 35
Stubbings and Others v United Kingdom (1997) 23 EHRR 213
United States of America
Warsaw v Chicago Metallic Ceilings Inc 676 P.2d 584 (Cal 1984)
LEGISLATION
South Africa
330
Customs and Excise Act 91 of 1964
Extension of Security of Tenure Act 62 of 1997
Gauteng Transport Infrastructure Act 8 of 2001
Local Government: Municipal Systems Act 32 of 2000
Prescription Act 18 of 1943
Prescription Act 68 of 1969
Promotion of Administrative Justice Act 3 of 2000
State Land Disposal Act 48 of 1961
United Kingdom
Land Registration Act 1925
Land Registration Act 2002
Limitation Act 1939
Limitation Act 1980
Real Property Limitation Act 1833
Real Property Limitation Act 1874
CONSULTATION PAPERS
Land Registration for the Twenty-First Century: A Consultative Document Number 254
(September 1998)
Land Registration for the Twenty-First Century: A Conveyancing Revolution Number 271
(July 2001)
INTERNATIONAL CONVENTIONS
European Convention for the Protection of Human Rights and Fundamental Freedoms 1950
331

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Acquisitive Prescription in View of the Property Clause

Ernst Jacobus Marais

Dissertation presented in partial fulfilment of the requirements for the degree of

Doctor of Laws at Stellenbosch University

Promoter: Professor AJ van der Walt

Department of Public Law

EJ Marais, 05 August 2011, Stellenbosch

Copyright 2011 Stellenbosch University

Dan bedank ek graag my vriende en kollegas by die Suid-Afrikaanse Navorsingsleerstoel in

CHAPTER 3: ACQUISITIVE PRESCRIPTION IN FOREIGN JURISDICTIONS .... 66

3.3.2.2.2 Bona fide (good faith) prescription .................................................. 124

4.4.3 The personality theory ................................................................................. 189

INTERNATIONAL CONVENTIONS ........................................................................... 331

1.1 Outline of the research problem and hypothesis

claim and found that adverse possession constituted an uncompensated deprivation or

To answer these questions, it is essential to firstly investigate the history of prescription

considers the requirements of the forerunners of prescription in Roman and Roman-Dutch

corrective function and helps to reallocate resources to higher-valuing possessors in countries

1.2 Overview of chapters

Chapter five focuses on the constitutionality of prescription in terms of section 25 of the

prescription in the context of boundary disputes either. Accordingly, prescription in these

It is not my intention to analyse the extinction of debts or obligations through extinctive

Finally, I do not provide an in-depth historical discussion of prescription in the second

CHAPTER 2: ACQUISITIVE PRESCRIPTION: RECEPTION AND

2.2 Historical background

2.2.2 Acquisitive prescription under Roman law

i) continuous possession or use of anothers property;

The Eastern Roman Empire no longer recognised usucapio as a method of prescription

Justinian attempted to create a uniform prescription law.79 Concerning immovable property,

Justinian also formalised the postponement and interruption of prescription law.

2.2.3 Acquisitive prescription under Roman-Dutch law

Lee describes the difficulty of studying Roman-Dutch prescription law:

Henceforth, I simply refer to prescription of a third of a century as prescription. It is not

2.3 South African prescription law since 1943

In addition, the 1969 Act specifically regulates interruption and postponement of

i) possession (or use, in the case of acquiring limited real rights);

2.3.2.1.1 The animus domini requirement

Unfortunately, the Appellate Division of the Supreme Court242 as it then was

2.3.2.1.2 The corpus requirement

2.3.2.3 Nec clam

2.3.2.4 Nec precario, adverse user and as if owner

i) in the nature of the concession of a servitude; or

As indicated above, the nec precario requirement is rendered superfluous by requiring a

requirement.376 In this context it is illuminating to quote the following passage from

2.3.3 Interruption of acquisitive prescription

2.3.4 Postponement of acquisitive prescription398

2.3.5 Rationale for acquisitive prescription

2.3.6 Prescription against the state

CHAPTER 3: ACQUISITIVE PRESCRIPTION IN FOREIGN JURISDICTIONS

3.2 English law

3.2.2 Adverse possession prior to the Land Registration Act 200222

3.2.2.2 Distinguishing between discontinuance and dispossession

[T]he difference between dispossession and the discontinuance of possession might be

3.2.2.3 Adverse possession

3.2.2.3.1 The meaning of adverse in adverse possession58

3.2.2.3.2 Elements of adverse possession: Factual possession and intention to

i) sufficient physical control (factum possessionis); coupled with

3.2.2.3.2.2 Factual possession (factum possessionis)95

3.2.2.3.2.3 Intention to possess (animus possidendi)109