The Legal Situation of Squatters in English and German Property Law


Term Paper, 2013

16 Pages, Grade: 1,0


Excerpt

Table of Content

Table of Cases

1. Introduction

2. Case study: The squatters

3. Definitions of Property law, property and squatters

4. Squatters in English Law
4.1 Ownership
4.2 Adverse Possession
4.3 Relativity of title
4.4 Example

5. Squatters in German law
5.1 The relationship between ownership and possession
5.2 Example

6. Conclusion

7. Bibliography

Table of Cases

Doe Dem. Hughes v Dyeball[1829] Moody and Malkin 346 (173 ER 1184)

JA Pye (Oxford) Ltd v Graham[2002] UKHL 30 [2003] 1 AC 419

McPhail v persons, names unknown and Bristol Corporation v Ross and another[1973 M. No. 1683] [1973 B. No. 2111] [1973] Ch 447

Mount Carmel Investments Ltd v Peter Thurlow Ltdand another[1988] 1 WLR 1078

Nicholls v Ely Beet Sugar Factory[1929] N 1169 [1931] 2 Ch 84

Ocean Estates Ltd Appellants v Norman Pinder[1969] 2 WLR 1359 [1969] 2 AC 19

Powell v McFarlane[1979] 38 P & CR 452

1. Introduction

On September 1st 2012 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was passed, which applies for England and Wales. Since that date, section 144 of this act rules the offence of squatting in residential buildings. It replaces and with regard to contents extends the Criminal Law Act from 1977. Squatters rights are now extremely restricted and the new law offers better protection for property owners. It is much easier for them to recover possession from squatters because the police now have the right to enter the property and make arrests where an offence has been committed. Before the law property owners had to start legal proceedings in order to regain possession from the squatter, which is a potentially long process.

This change shows the actuality of the topic. But beside the fact that squatters now commit a criminal offence when occupying other peoples´ property, what is the legal situation of squatters in regards to property law? And what are the legal differences between English and German law? This paper will compare the situation of squatters in both legal systems and outline the main differences. Property law in England has a completely different structure than German Property law. The main difference arises from the fact, that both countries have different legal systems. The English common law, which is also known as case law, is developed through decisions of judges. German Property law is based on the German civil code. English Property law differentiates between real and personal property whereas German Property law distinguishes between movable and immovable property.

In the following questions of ownership and possession relating to the legal situation of squatters but also to that of the owners will be discussed and the differences in English and German law will be shown, not only theoretically, but also with the help of a case study. This fictitious case will be presented first. In order to understand what is exactly meant by “property law”, “property” and “squatters” the definitions are given. The main part will be the explanation of the legal situation of squatters in English law, where the “adverse possession” and “relativity of title” issues are especially considered. This is important in order to understand how the English relationship between ownership and possession works, as it is structured very differently from German law. Next, the case which was given in the beginning will be applied to English law. In contrast to that the legal situation of squatters in Germany will be explained and the case will be applied to German law. In the sixth and last part the most important facts from both legal systems are summarized and compared.

2. Case study: The squatters

Alan (A) likes to live in the city but to relax and to get away from the city´s noise he bought a small and lovely but very old house in the landscape to renovate it and spend his holidays there. One day as A arrives at his house to do some painting he comes across Benjamin (B). B is a vagabond and he always lives in empty houses. A urges squatter B to leave his house but B refuses and threatens A to better not tell anybody. A is scared of B and immediately drives back home. After 6 months vagabond Chris (C) moves into the house while B went fishing. As B is coming home he gets very angry but squatter C refuses to leave and B has to look for another accommodation. After a few days B calls the court in order to decide whose right it is to live in that house. 2 years after B moved into his house, A finally has the courage to call the court so that he can spend his holidays in his house again.

What are the property rights of A, B and C in English and German law?

3. Definitions of Property law, property and squatters

Property law has to be described in a very broad sense in order to enclude all kinds of property that exist. Clarke and Kohler describe Property law as “the legal relationships we have with each other in respect of things.”4[1]4Van Erp and Akkermans define Property law as “rights that a person has against a considerable group of other persons concerning an object.”4[2]4

As mentioned above the English term “property” refers to an object or a thing. If we consider the fact that this object or thing belongs to someone, property can also be described as a relationship4[3]4. Therefore Clarke and Kohler describe property as a definition of three different types of relationship between people and objects: First the “nature of the right” one may have in a thing, for example a legal right to have property in something, which can also be enforced. Secondly the term property encloses the “nature of the relationship”. But property also means the “thing itself”, from which such a relationship between people evolves.4[4]4You can divide the term property into two meanings: Personal property such as chattels real and chattels personal and real property such as land4[5]4. In German law a “thing” means only physical objects and is defined in § 90 BGB. Therefore it has a much more limited meaning as “property” does in English law4[6]4.

InMcPhail v persons, names unknown and Bristol Corporation v Ross and anotherLord Denning defines a squatter as “one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can. He may say that he was homeless and that this house or land was standing empty, doing nothing. But this plea is of no avail in law”4[7]4.

4. Squatters in English Law

4.1 Ownership

It is said that the law of ownership in England and Wales is only a law of possession4[8]4. Honoré said that possession “is the foundation on which the whole superstructure of ownership rests”4[9]4. In common law systems ownership is not comparable with the purpose of ownership in civil law systems like in Germany, where ownership and possession are strictly differentiated. The protection of property in England is achieved by protecting possession, which leads to entitlement of a person.4[10]4The importance of possession and title for property rights will be explained more precisely in the next chapters. First of all it is important to understand, what goes to make an owner in English law. Clarke and Kohler define ownership as “the ultimate property interest and the means by which we signify the person or persons with primary (…) control of a thing”4[11]4. However this fact does legally not lead to exclusive control of the object because ownership always has to be connected with the right to possess4[12]4. If a person is the registered owner of land but under certain circumstances he is not in possession anymore, the actual control of the land belongs to the person who is in physical control and has the exclusive right to possess. Thus ownership exclusively needs to be connected with possession but also with entitlement which arises from this combination.

In common law rights on property, contrary to civil law, are primarily covered by tort law because specific actions to realize property rights do not exist. Therefore English tort law covers the right on property by “damages” and by “property torts”.4[13]4An example for such a property tort, relating to the fact where a squatter enters your property, is the “trespass to land”, when the legal owner or the possessor has not agreed with that. In order to raise an action against the squatter, he has to have a title to land, in other words the “exclusive right to possess”.4[14]4This demonstrates that possession and not only the fact of being the legal owner is the most important aspect in English law, for asserting property rights.

[...]


[1]Alison Clarke and Paul Kohler,Property Law. Commentary and Materials(Cambridge University Press 2005) 3.

[2]Sjef Van Erp and Bram Akkermans,Cases, Materials and Text on Property Law(Hart Publishing 2012) 39.

[3]Nigel P. Gravells,Land Law(4th edn, Sweet & Maxwell 2010) 1.

[4]Clarke and Kohler (n 1) 17.

[5]James Crossley Vaines,Personal Property(3rd edn, Butterworths 1962) 8-9.

[6]Andreas Rahmatian,A Comparison of German Moveable Property Law and English Personal Property Law(2010)

< http://www.iuscomp.org/gla/literature/rahmatian.htm> accessed 21 February 2013.

[7][1973 M. No. 1683] [1973 B. No. 2111] [1973] Ch 447.

[8]Geoffrey Cheshire and Edward Burn,Modern Law of Real Property(15th edn, Butterworths 1994) 26.

[9]Anthony M. Honoré,Ownership, inMaking Laws Bind(Clarendon Press 1987) 165-179.

[10]Sjef Van Erp and Bram Akkermans,Cases, Materials and Text on Property Law(Hart Publishing 2012) 206.

[11]Alison Clarke and Paul Kohler,Property Law. Commentary and Materials(Cambridge University Press 2005) 180.

[12]Ibid.

[13]Sjef Van Erp and Bram Akkermans,Cases, Materials and Text on Property Law(Hart Publishing 2012) 206.

[14]Jenny Steele,Tort Law. Text, Cases and Materials(2nd edn, Oxford University Press 2010) 900.

Excerpt out of 16 pages

Details

Title
The Legal Situation of Squatters in English and German Property Law
College
University of Bremen
Course
Comparative Property Law
Grade
1,0
Author
Year
2013
Pages
16
Catalog Number
V231352
ISBN (eBook)
9783656478454
ISBN (Book)
9783656479772
File size
536 KB
Language
English
Tags
english, german, property
Quote paper
Alena Franken (Author), 2013, The Legal Situation of Squatters in English and German Property Law, Munich, GRIN Verlag, https://www.grin.com/document/231352

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