In English law it is not about who has got the title, whether it is me or you, it is about who has got the better title. In terms of possession in relation to the notion of title, brings forward an idea that title can be seen as a relative concept. The law as it stands acknowledges that more than one person could obtain title to land and that there is no such concept known as absolute ownership. The only way of determining who has the stronger title is by looking at how they came about obtaining possession over the land. In the twelve years we both have title but in the twelve years the original owner has the better title and after twelve years the adverse possessor has better title.
Previously under section 75 of the Land Registration Act 1925 for registered land, provides a system formally by which the paper owner’s title can be transferred to the adverse possessor or trespasser. When it has gone beyond the limitation period, then he would hold the tile for the trespasser on the basis of trust. From this the trespasser would then be eligible to apply for his or her name to be registered into the land registry to acquire title, which would mean that the paper owner no longer has title. The limitation period is an important concept as it provided a stop to someone’s ability to be able to claim their rights legally. A person could lose their rights if they have not asserted there objection in time. Under section 15(1) of the Limitation Act 1980, states that in order for the adverse possessor to gain title in unregistered land, he or she much have adverse possession for twelve years. After this period under section 17 of the Limitation Act 1980 the registered title owner would have his title extinguished and the adverse possessor would hold the new title. This would mean that the registered owner showed no interest in the property and could have in fact not even know that he owned the land, and so they would lose title immediately without even knowing. A case that illustrated this well is Ellis v Lambeth LBC (1999) 32 HLR 596, in this case the council were not aware that the land was being occupied for well over 14 years by a squatter, who then claimed title. Customarily, the registered proprietors title was not just passed on or given to the adverse possessor but entirely extinguished. This allowed the adverse possessor to create a new title because they could transfer the land to a purchaser. The squatter in turn would prove that he or she has title with a statutory declaration because they would not be able to prove the ‘root of title’ as it was obtained adversely. Via a statutory declaration the possessor would have to clarify how and in what circumstances that allowed him or her to acquire title through adverse possession. This would generally be supported up by an insurance policy for defective title. It is important to note that in registered land according to the rule set out in the Land Registration Act 2002, section 15 and 17 do not apply anymore.
The courts would generally protect the rights of a person who is in possesses the land unless there is someone who has a better title. And thus they will protect the right of the person in possession of the land even if they have to go against the paper owner, who at that point would not hold title. Another important case was Pye v Graham (2002) where the farmland was in adverse possession by Mr Graham for twelve plus years, for which he had obtained validly, title to the land. This case was affirmed by the House of Lords; Lord Bingham acknowledged that the Land Registration Act 2002 did take in to consideration that the registered proprietor could lose his title through his mere lack of attention. But during this case the act was not put into action and would be of no use to Pye, who had lost his title before the Act was passed. He concluded his judgement with: “While I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friends, this is a conclusion which I arrive at with no enthusiasm”.
Under schedule 6 of the Land Registration Act 2002 it has become a lot more difficult to obtain title through adverse possession. By tradition, squatters could gain title through adverse possession in a sense ‘automatically’ after twelve years for unregistered land, however since the introduction of the Land Registration Act 2002 now states that in registered land, if a person has taken adverse possession of the land for a period of more than ten years, then he or she can be eligible to apply to the land registry to become the registered proprietor of the estate. Squatters who intend to defend the possessed land would have to make an application though the Land Registry. The Land Registry would then alert the registered proprietor or ‘paper’ owner that the squatter would like possession. This would give the registered proprietor a chance to regain possession of the property before the squatters has any chance to make a claim in relation to the title of the land. The estate owner would then have a period of 65 business days in order to put forward his objection, if he or she has done so, then they would have to have the squatter removed from their property within the period of two years. This new reform means that it would be practically impossible for an adverse possessor in registered land to acquire legal title by adverse possession. This is reflected by the Law Commission Report “Title to registered land is not possession-based as is title to unregistered land. It is registration that vests the legal estate in the owner.”
None the less it is important to note that the rights of the squatters that were still protected under the old law was only for a specific period of October 2003 till October 2006 and that any cases arising after that period would be held under the new law, which at this time would be fully implemented. This justifies the modern way of ‘title by registration’. Consequently, shortening the time between registered and unregistered land can in fact be misleading. It seems to me that in shortening the time the law seems to be favouring the squatters but when we look at the way in which title is obtained, we can see that the law does not favour adverse possessors. If no one, including the registered proprietor objects to the application, then the squatter has the right to be registered as the title owner. Nevertheless, the objection for the transfer of title is merely a veto meaning rejection and therefore should not have to be justified in any way. This is an important change made by the Land Registration Act 2002, that the registered proprietor should not risk losing his or her title on a mere application.
The fact that the ‘paper’ owner is given knowledge of all the rights and interests that were previously hidden reinforces that the owner’s rights and interests are fully protected. Nonetheless, the changes made in the Land Registration Act 2002 reflect the idea that “it is registration alone that should confer title”. Previously the law would automatically pass the title on, however the new law reflects the concept that title will pass upon registration. According to the Law Commission Report No. 271 (2001) clearly states that “where title is registered, the basis of title is primarily registration then possession”. When looking at unregistered land it is the opposite. Therefore, title in registered land would only pass through registration and not possession. And by doing so, the Act is further encouraging owners to register their titles via the Land Registry, to ensure that their land or property would not be adversely possessed; using it as a form of security. This would be particularly important for those who own a large quantity of land and property such as the local authorities, who would be most like to have their land adversely possessed aforementioned in the case Ellis v Lambeth LBC (1999).
In conclusion, the law on actually acquiring title by adverse possession has indeed changed fundamentally as a result of the land registration act 2002 but the law on what it actually meant by adverse possession is largely unaltered.
http://www.justice.gov.uk/lawcommission/docs/lc271_land_registration_for_the_twenty-first_century.pdf
http://www.legislation.gov.uk/ukpga/2002/9/schedule/6
by
deepa_raghwani (student)
