Sayles: Land Law Concentrate 4e
Chapter 8: Outline answers to essay questions
The scope of adverse possession, and the ability to acquire land by stealth, has been severely curtailed by the Land Registration Act 2002, resulting in a law that can be morally justified.
This requires you to essentially analyse how the law of adverse possession, which enables a person to acquire title to property, has changed following the enactment of the LRA 2002. Key focus will be upon the procedure for acquiring adverse possession, rather than an explanation of what adverse possession actually is, as the latter has changed little following the LRA 2002.
It is suggested that you should scrutinize the procedure for establishing adverse possession pre LRA 2002. Of particular focus should be the consequences of establishing 12 years' adverse possession. Is the automatic extinguishment of the paper owners title fair and can it be justified, or does it simply allow people to steal property from others under their noses? Should the law allow for this to happen? Some critical evaluation of the law is essential and where possible enhance with academic debate. Arguments could also be strengthened by looking at comments made on the issue of whether the law was adequately balanced between the paper owner and the adverse possessor during the various stages in the case of Pye (JA) (Oxford) Ltd v Graham (2003).
Focus should then turn to the way in which the LRA 2002 has changed the procedure to establish adverse possession. Emphasise the shift of placing the burden on the adverse possessor to actually take positive steps to acquire title to the land. Does this produce a law that can be morally justified? Have the concerns raised in the case of Pye on the addressing the balance between the adverse possessor and the paper owner been addressed? Does the new law sit more comfortably with the European Convention of Human Rights (1950)?
Well today is the tomorrow I promised you that I would continue....
Now then, what about your question answering ability? First, if it is an essay question, make sure you read it at least twice. Then consider, what is the examiner asking me? Do not just see ‘an adverse possession question’ - - look at what exactly ABOUT adverse possession the examiner is asking. Then you answer the essay question logically. Meaning, you start with a path, then definition (or definition then path) then you set out your arguments in favour of the position advanced, then any arguments against your position, and then you conclude.
One of the ways to stay focused in an essay question, is to keep referring to the words used in the question after you write a paragraph or a couple of short paragraphs. Then it means that you are answering THAT question…the question asked by the examiner, not just ‘an adverse possession’ question which generally tends to be a general ‘everything I know about adverse possession’ type answer.
In an essay, read the question carefully to make sure you understand what is required. Look carefully at the key words and phrases, which indicate the sort of answer you are expected to give. Very few essay questions require merely factual descriptions of what the law is; you will almost always be required to analyse the factual content in some way, usually highlighting any problems or gaps in the law, and suggesting possible reforms. If a question asks you to analyse whether the land registration system has now made the position better in relation to adverse possession you should not write everything you know about adverse possession and finish with one sentence saying the system is now better. Instead you should select your relevant material and your whole answer should be targeted at answering whether or not the system is better.
What about Problem Questions? These consist of facts, usually with the direction to 'Advise X [one of the parties]'. The aim will be to analyse the facts to identify the legal issue(s), and analyse the law to find the relevant legal rule(s). Next will be the application of the law to the issue(s), and reaching a conclusion. Remember I R A C : Issues Rules Application Conclusion...OR - C L E O - Claim Law Evaluation Outcome - - So the structure of the entire entire essay, from paragraph 1 to the end, should reflect the structure of IRAC/CLEO, e.g., paragraph 1 could reflect I/C; paragraphs 2-3 could reflect R/L; pararagraphs 4-5 could reflect A/E; and paragraph 6 could reflect C/O. So as a reader reads through the answer, it is logical and coherent...please DO NOT do sub-headings which say Issue, Rule, etc., etc...that is wrong.
This is general advice on how to approach a special type of exercise to which law students have been subjected from time immemorial, whether in seminars or examinations - namely the problem-type exercise.
You can identify these because typically they begin with a statement of hypothetical (and sometimes faintly improbable) facts and end by asking you to "Advise" one of the parties, although sometimes you will be asked to "Discuss the case" or "Discuss the liability of one of the parties".
Again, don’t visualise the facts as being ‘real’ rather, focus on the legal rules and principles which arise.
The writing is critical - - ANSWER THE QUESTION ASKED - - Legal writing is about formality. If I ask you – what is your name? - - the answer is not ‘Jennifer’ - - it is ‘My name is Jennifer Housen’. As such, when the examiner gives you a set of facts and at the end say ‘Advise X’…the answer is not ‘A lease is an interest in land etc, etc.’ - - no that is the answer to the question, ‘what is a lease’. Even if the question is about a lease, If the question asks you to ‘Advise X’, The correct answer is - - in advising X, etc., etc.,
There is an American TV programme called Jeopardy and the idea behind it is, you are given an answer and you have to phrase the question, so for example the host says ‘Queen Elizabeth the Second’ and the contestant says ‘who is the queen of England’. Well, your answers should reflect something like that. When a reader reads the first line, sentence or paragraph of your answer, without knowing what the question asked, that reader should be able to look at your answer and know the question, simply by seeing the structure and response you have given. So if in relation to my example on X, if my answer was:
In advising X, the status of A, B and C’s occupation will be considered to determine whether or not their occupation is binding on X as the purchaser of Blackacre…then in that less than 2 line introduction, the person reading my answer becomes aware of X, and A, B and C, and know that they are apparently occupying Blackacre which X has purchased...that says my job is done...I have answered the specific question asked.
Finally, be succinct, be precise, and write in the third person.
Over the next few days, I will consider specific questions and how you would answer them...tomorrow, I will start with contract.