The Impact of the Land Registration Act 2002 on Adverse Possession

Michael Roberts 20/02/06

Property Law Assignment III

Michael Roberts

Tutor Group F: Anne Street

Property Law Assignment III

“As a result of the changes made by the Land Registration Act 2002, the law of adverse possession no longer operates as a thieves’ charter.”

Discuss.

To analyse the extent to which the Land Registration Act 2002 (LRA) has affected the law of adverse possession, and how it could be seen as operating as a thieves’ charter, this discussion will be broken into four main sections. First the situation before the LRA 2002 will be explained, followed by a reflection of to what extent it was a thieves’ charter in the first place, if at all. After that the changes brought about by the LRA 2002 shall be described with consideration given to its effects and whether it has changed the situation for thieves. Following this discussion a conclusion will be drawn. As this discussion concerns only changes made by the LRA 2002 the application of adverse possession to goods will not be considered. Hopefully the essay will arrive at the conclusion that adverse possession does still operate somewhat as a thieves’ charter but that this effect has been largely diminished by the LRA 2002.

Prior to the statute, the law of adverse possession was quite favourable to takers of land who could be construed as thieves. The basic laws were that anybody who takes exclusive possession over land acquires title to it and in doing so gains a right to possession better than that of anybody else’s apart from the original, true owner of that land. This happens simply by taking physical exclusionary control and the right is acquired immediately. When this occurs, time starts running against the true owner to act. A number of options are open to the true owner: he could claim his land back by bringing an action for possession or he could negotiate and enter into a contract with the squatter, who would then become a tenant or a licensee. If the true owner fails to act, however, with 12 years of exclusionary possession being taken by the squatter, the true owner’s title is lost and he no longer has the right to claim the land back. The squatter is not required to prove that he used or enjoyed the land at all during those 12 years; it is sufficient for him to prove that he excluded all others from that piece of land.

This is a preview of the whole essay

This rule simply rewards long possession. There seems to be little Lockean justification to it and certainly provides the patient thief with a simple and legitimate way to acquire land. What could be said to justify such a mechanism is that any true owner who does not notice someone else exercising exclusive possession over his land for 12 years was not bothered enough or productive enough over that piece of land to justify his continued ownership of it when compared to the adverse possessor who made the effort to exclude others and keep control of it for so many years. It is of no surprise that this rule can lead to very harsh consequences, especially when neither party has really done anything ‘wrong’ as such. However as far as the law of adverse possession operating as a “thieves’ charter”, it would certainly appear that anybody with the patience and the desire, even in bad faith, could effectively rob true owners of their land in a perfectly lawful fashion in accordance with the laws of adverse possession. This was admitted to in a consultative document created jointly by the Law Commission and the Land Registry in which it was said that adverse possession ‘at least in some cases, tantamount to sanctioning a theft of land’.

Since the application of the Land Registration Act 2002 it has become significantly more difficult for long use of land to become undisputable title through time. Two primary justifications for the changes were provided in various reports at the turn of the century. The first centres on the basic principle that it is wrong for people to lose their legitimate title to something and that the law of adverse possession is a bad thing per se. This is known as the necessary evil argument. The second justification is called the incompatibility argument – that is to say that the law of adverse possession is incompatible with the principle of indefeasibility of title underlying land registration. It is the first justification which relates more to the matter in question (the extent to which it has diminished the operation of the law of adverse possession as a thieves’ charter). By and large the original laws of adverse possession remain unaffected but an important new procedure was introduced by the act regarding registered land, which accounts for approximately 80% of all land in the United Kingdom. Under this law an adverse possessor in land registered to another is required to go through an official procedure in order to become the new registered owner of that land. After 10 years of adverse possession, he must apply to become a registered owner. If the land registry is satisfied with the claim, the paper owner will be notified and has sixty five business days to respond. If no response is heard within that time then the adverse possessor becomes the new registered owner of that land. If the original owner objects within that time he has a further two years to bring an action for possession against the squatter. If no action is taken within those two years then the Land Registry will register the adverse possessor as the owner and the original paper owner will lose his title.

Obviously when these new provisions apply to 80% of all land it is going to have a considerable impact on the way in which the law operates. Furthermore it is an objective of the Land Registry to register as much land as possible so in the future the changes brought about by the LRA 2002 could apply to an even higher percentage of land. This legislation would undoubtedly make the acquisition of land much harder for adverse possessors as the stealthy element of adversely possessing land for 12 years, then suddenly claiming it as one’s own no longer applies. The owner of registered land is given plenty of time to ensure he maintains his land and if he fails to act then it is almost like gifting his land to the adverse possessor. In this case it would be difficult to identify the new owner as a ‘thief’ as the owner has consciously allowed title of his land to be transferred to the adverse possessor. Leaving aside for now the 20% or so unregistered land, it is difficult to see how anybody could legitimately take land and be construed as a thief under these new provisions. What may start to happen is that those who wish to adversely possess land for as long as possible will simply not attempt to register land in order to prevent the owner discovering their actions. Of course, this is wrong and ought to be discouraged, but it is very different to theft as the squatter is not taking the land and the owner can force him to leave at any time. Regarding the 20% of unregistered land left, the same situation as before applies and such land is prone to being usurped by land thieves. Hopefully more landowners will be encouraged to register their land with the additional protection it provides and the law of adverse possession will provide less and less for those who act as thieves.

Ultimately nearly all land will be registered and it will be very difficult for adverse possessors to act as thieves because of the fact that registered landowners are essentially required to allow their land to change hands. If landowners fail to respond within the ample time limit of sixty five working days one can only assume that they do not care enough about the land to maintain title over it, giving rise to a Lockean justification to the new rules provided by the LRA 2002. In conclusion the provisions of the new statute have made it far more difficult for a squatter to gain title through adverse possession. While some scope is left for potential thieves, it would be inaccurate to say that the law of adverse possession still operates as a thieves’ charter.

Word Count: 1,360 (without footnotes), 1,400 (with)

Bibliography:

A. Clarke & P. Kohler: “Property Law, Commentary and Materials” Cambridge University Press 2005

UCL Faculty of Laws Undergraduate Property I Materials Pack 2005

A joint report by the Land Registry and the Law Commission: Land Registration for the Twenty-First Century: A conveyancing Resolution 2001 following Land Registration for the Twenty-First Century: A Consultative Document 1998.

Para 1 Schedule 6 of the LRA 2002