We all know the plot of the first Shrek movie: Lord Farquaad rounds up the land's fairytale creatures and dumps them in Shrek's swamp, leading the ogre to rescue a princess to get his land back, but what if there was an easier way than enduring blistering winds and scorching deserts, climbing to the highest room of the tallest tower, fighting a dragon, and trekking across the country with a talking donkey and a were-ogre princess in tow? What if, for argument's sake, Shrek visited his local lawyer?
In England, where we shall assume the plot takes place (thanks to the accent of Lord Farquaad), all land is legally owned by the Crown, but it is safe to assume that Shrek owns his land in a freehold - technically a 'fee simple absolute in possession'. What does this mean exactly? 'Fee' means that the swamp is inheritable, 'simple' means it can be possessed by anyone, not just lineal descendants, 'absolute' means that there are no conditions on Shrek's ownership, and 'in possession' means that Shrek has an immediate right to possession, or to collect any rents or profits coming from his land. This comes from s.1(1) of the Law of Property Act 1925 - the starting point for property law in England, surprisingly.
Crucially for Shrek, there is a principle that one can only give what one has - nemo dat quod non habet - found in the case of Armory v Delamirie, and so Lord Farquaad has no right to give anyone, not even a horde of fairytale creatures, an interest in Shrek's land. This is the first opportunity for Shrek to evict his unwelcome guests.
But let's look a little deeper - under the Land Registration Act 2002, the majority of land in England is registered with the government on a public database, which informs users who owns the freehold. Should Lord Farquaad look at this database, he would most likely discover that Shrek is the registered freeholder. The purpose of this registry is threefold (as held by Lord Wilberforce in the case of William & Glynn's Bank v Boland): to act as a mirror, reflecting the interests affecting the estate; to act as a curtain, so purchasers aren't affected by trusts in the land; and to provide insurance, so that when there is a mistake in the register, the injured party can likely receive compensation from the state.
Land transferred post-LRA must be registered, but if Shrek came into possession of his swamp before 2003, which he did (the film came out in 2001), then there is the possibility that the land has not been registered. In this case, does Shrek have an overriding interest to expel the fairytale creatures? The likelihood is yes, as an occupier and the possessor of a(n unregistered) freehold estate in the land, Shrek has a more powerful legal right than the others. Furthermore, his ownership of the swamp was well known in the village in which he lived (as illustrated by the angry mob in the opening scene), and therefore Lord Farquaad and the fairytale creatures cannot claim ignorance.
Could the fairytale creatures, hypothetically, claim that they have a leasehold estate in the land? Definitely not - Shrek doesn't pay rent, and so they cannot claim to have a joint tenancy with the ogre. For a joint tenancy to exist there must be four unities:
In England, where we shall assume the plot takes place (thanks to the accent of Lord Farquaad), all land is legally owned by the Crown, but it is safe to assume that Shrek owns his land in a freehold - technically a 'fee simple absolute in possession'. What does this mean exactly? 'Fee' means that the swamp is inheritable, 'simple' means it can be possessed by anyone, not just lineal descendants, 'absolute' means that there are no conditions on Shrek's ownership, and 'in possession' means that Shrek has an immediate right to possession, or to collect any rents or profits coming from his land. This comes from s.1(1) of the Law of Property Act 1925 - the starting point for property law in England, surprisingly.
Crucially for Shrek, there is a principle that one can only give what one has - nemo dat quod non habet - found in the case of Armory v Delamirie, and so Lord Farquaad has no right to give anyone, not even a horde of fairytale creatures, an interest in Shrek's land. This is the first opportunity for Shrek to evict his unwelcome guests.
But let's look a little deeper - under the Land Registration Act 2002, the majority of land in England is registered with the government on a public database, which informs users who owns the freehold. Should Lord Farquaad look at this database, he would most likely discover that Shrek is the registered freeholder. The purpose of this registry is threefold (as held by Lord Wilberforce in the case of William & Glynn's Bank v Boland): to act as a mirror, reflecting the interests affecting the estate; to act as a curtain, so purchasers aren't affected by trusts in the land; and to provide insurance, so that when there is a mistake in the register, the injured party can likely receive compensation from the state.
Land transferred post-LRA must be registered, but if Shrek came into possession of his swamp before 2003, which he did (the film came out in 2001), then there is the possibility that the land has not been registered. In this case, does Shrek have an overriding interest to expel the fairytale creatures? The likelihood is yes, as an occupier and the possessor of a(n unregistered) freehold estate in the land, Shrek has a more powerful legal right than the others. Furthermore, his ownership of the swamp was well known in the village in which he lived (as illustrated by the angry mob in the opening scene), and therefore Lord Farquaad and the fairytale creatures cannot claim ignorance.
Could the fairytale creatures, hypothetically, claim that they have a leasehold estate in the land? Definitely not - Shrek doesn't pay rent, and so they cannot claim to have a joint tenancy with the ogre. For a joint tenancy to exist there must be four unities:
- Their interests must be vested at the same time
- All must derive title from the same document
- All must have the same interest
- All must be equally entitled to possession of the whole land
This clearly does not exist. They are more likely to claim they have a tenancy in common, where each party is entitled to a separate undivided share of the land, and can dispose of this share at will, but even so, as Shrek does not pay rent, they cannot claim to be tenants in common.
The fairytale creatures are likely getting desperate now - they have been evicted from their homes and have been placed in a swamp with a cantankerous ogre. If they wanted to stay there, which they probably do by this point, their only hope is now adverse possession.
The LRA made adverse possession more difficult, but not impossible. For a party to claim adverse possession, they must have factual possession - an appropriate degree of physical control over the land [Powell v McFarlane], and as they are living on Shrek's land, they do have this. They must also have an intention to possess (this is not an intention to own!), which they also likely do. However, their plans to adversely possess Shrek's land, and gain legal freehold title, are about to hit a big stumbling block: they must be in possession of the land for 10 years, with a sufficient degree of control [Greenmanor v Pilford] and possess the land openly and not selectively [Purbrick v Hackney]. While they do have a sufficient degree of control, with their tents pitched, and they indeed possess the land openly, they have not possessed the land for ten years, and so Shrek can still take it back at any time.
As a result, Shrek can retain ownership of his land against any claims the fairytale creatures might make, but there is one more danger across the ocean that we shall examine (mainly because I am studying both Property and US Constitutional Law this year, and this article is a good opportunity for me to revise them both).
The 'takings' clause of the United States Constitution can be found in the 5th Amendment, and states that no property shall be taken for public use by the government without just compensation. This has been incorporated into the 14th Amendment, and so citizens can make claims against both States and the federal government for violations of this clause. Lord Farquaad (in an American setting) could claim that he is taking Shrek's swamp under this power. However, under the Amendment and the case of Chicago Burlington & Quincy Railway Co v Chicago, the government of Duloc is bound to pay Shrek just compensation, which they have not done.
Furthermore, Duloc and Farquaad can only take the land if it is for a public use [Missouri Pacific Railway v Nebraska], and while there is judicial deference towards the definition of what constitutes a public use, as seen in Berman v Parker, Justice O'Connor stated in Hawaii Housing Authority v Midkiff that the purpose for which the land is seized must be legitimate, and the means must not be irrational. While there is indeed deference, I am pretty sure that ethnic cleansing is not a 'legitimate' purpose, and the means of dumping refugees on Shrek's land is indeed an irrational method of achieving such an aim. As such, even if Shrek was set in the USA, he would still be able to retain control and ownership of his swamp - his whole swamp - through a legal recourse.
As it happened, Shrek chose not to consult his solicitor, and thus set in motion a series of events that led to him falling in love, and while the Courts could have provided a simple solution, I'm sure that Shrek wouldn't trade his 'happily ever after' for that.
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The opinions of this article are solely those of the author and are not intended to provide accurate legal advice for anyone to rely on. While the content is intended to be factually correct, the author does not accept any responsibility or liability arising from the use or misuse of this article or any loss/inconvenience/damage stemming from this. Legal advice should be sought from a qualified professional, not this blog. The opinions represented in this blog are personal and belong solely to the blog owner, and do not represent those of the people, institutions, or organisations that the owner may or may not be associated with in a professional or personal capacity, unless explicitly stated. The views expressed by any podcast guest are their own entirely, and do not necessarily reflect those of the blog owner. The blog owner is not responsible and liable for any discrepancy, if any. Any content provided by this blog or its companion podcast is not intended to malign any religion, ethnic group, club, organisation, company, individual, or anyone or anything.
The opinions of this article are solely those of the author and are not intended to provide accurate legal advice for anyone to rely on. While the content is intended to be factually correct, the author does not accept any responsibility or liability arising from the use or misuse of this article or any loss/inconvenience/damage stemming from this. Legal advice should be sought from a qualified professional, not this blog. The opinions represented in this blog are personal and belong solely to the blog owner, and do not represent those of the people, institutions, or organisations that the owner may or may not be associated with in a professional or personal capacity, unless explicitly stated. The views expressed by any podcast guest are their own entirely, and do not necessarily reflect those of the blog owner. The blog owner is not responsible and liable for any discrepancy, if any. Any content provided by this blog or its companion podcast is not intended to malign any religion, ethnic group, club, organisation, company, individual, or anyone or anything.
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