Comparative Analysis – Case 9

Summary

GENERAL INTRODUCTORY AND COMPARATIVE REMARKS ON CASE 9

Case 9 poses the question of whether an unlawful occupier who offers to purchase or rent the occupied land (in casu Anna) can still acquire it through her longterm use of the land. All examined jurisdictions eventually reach the result that Anna does not acquire the land through long-term use. The jurisdictions under examination can be divided into three groups.

(1) NO ACQUISITION DUE TO STRICT GENERAL REQUIREMENTS

The first group of jurisdictions does not permit acquisitions by persons who knowingly occupy land. This group consists of England and Wales under the Land Registration Act of 2002, Finland, Germany, Norway, Russia, Scotland, Slovakia, and Sweden.

(2) NO ACQUISITION DUE TO OFFER

In the second group of jurisdictions, consisting of Alberta, Belgium, Catalonia, France, Ireland, Italy, the Netherlands, Poland, Spain, and South Africa, Anna’s offer to purchase or rent the land would interrupt the running of the required period of use. In some jurisdictions, this rule is more nuanced or additional requirements apply for the offer to purchase or rent the land to have this effect. The law of Alberta requires the offer to be in writing in order for it to constitute an acknowledgement of the owner’s right. Under Irish law, a mere offer to rent would not be an expression of such an acknowledgement. This interruption does not necessarily preclude that a time period for an acquisition can start running anew, but the jurisdictions set different requirements for the period to recommence.

(3) OFFER DOES NOT AFFECT ACQUISITION

Only in Louisiana does the offer to purchase or rent the land not affect the acquisition. As Anna meets all the general requirements under the law of Louisiana, she will acquire the land. This prevailing opinion may change in the time to come, and Louisiana may then join the second group.

(4) CONCLUDING REFLECTION

The rationale behind the common norm within the second group is that an acknowledgement of the owner’s right stands in the way of an acquisition of land by a non-owner through long-term use. This offer shows that the occupier does not intend to acquire any right in the land, and the owner no longer needs to suspect a looming loss of the land.