The doctrine of adverse possession and the right to property: a Ugandan contextual analysis

Abstract

The doctrine of adverse possession enables the transfer of legal title to property from the original owner to the adverse possessor upon fulfilment of certain conditions by the latter, one of which is the lack of the original owner’s consent to occupy the land in question. Several justifications have been invoked in support of this doctrine, some of which include the difficulty of proving stale claims and punishing owners for sleeping on their rights by awarding titles to hardworking adverse possessors and developers. However, some scholars have criticised this doctrine, contending that it is only relevant to unregistered land and that, in today’s modern world, the 19th-century justifications are no longer relevant. This research, therefore, discusses how the doctrine of adverse possession, highlighting its history and the different conditions needed to be proved by the adverse possessor before title to the land is granted to him/her for example an intention to possess, an appropriate degree of control to the land and exclusive possession of the land. The research then examines how this doctrine has infringed on the right to property of the original owner of land. It does this through looking at vast literature from different scholars on the same and also references from various domestic and international and regional Human Rights instruments which provide for the property right for example the Universal Declaration on Human Rights, The International Covenant on Economic, Social and Cultural Rights among others. The research also looks at how the doctrine has been handled in other Jurisdictions like the United Kingdom, Ireland, Australia, Nigeria and Kenya and in conclusion, it makes different recommendations on how to apply the doctrine justly and fairly in Uganda, like, applying the liability rule to the doctrine of adverse possession, providing for a restriction on how the doctrine of adverse possession can be applied to registered land and widening the limitation period from twelve years to twenty years.