Would the abolishment of adverse possession in relation to both registered and unregistered land been far preferable to the enactment of the Land Registration Act.

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Martin Dockray states “It is arguable that it is in the public interest to promote the full use of neglected natural resources and that it is desirable that a fixed time limit should exist to encourage the improvement and development of land which might otherwise lie abandoned or under exploited for many years.” Contrary to this, the Law Commission sought to severely limit adverse possession in relation to registered land. The recommendations in the report on Land Registration for the Twenty-First Century led to the enactment of The Land Registration Act 2002.  This brought about a radical change to the rules regarding adverse possession in relation to registered land.  The owner’s title to a registered estate in land will not be barred by any period of adverse possession and the squatter must successfully apply to the Registrar before obtaining rights. However, when an application is made the paper title owner is notified and can object the application and pursue the eviction of the squatter.  This renders registered land “virtually squatter-proof”. The situation regarding unregistered land is not changed by the Land Registration Act. Adverse possession will be successful following a 12 year period, “the paper title owner is prevented from suing and his title is effectively extinguished after 12 years.” The Land Registration Act has therefore made the rules regarding adverse possession in registered and unregistered land inconsistent, with separate systems for each. In this paper, I will discuss whether the abolishment of adverse possession in relation to both registered and unregistered land would have been far preferable to the enactment of the Land Registration Act.  

The Land Registration Act 2002 has been described as the “emasculation of adverse possession in relation to registered land.” Section 96 of the Act removes the periods of limitation that applied in the Limitation Act 1989 for registered land.  A squatter cannot claim title of registered land after a certain period; instead he can apply to the Land Registry to be registered as proprietor following a 10 year period of adverse possession. Once an application is received the registered proprietor must be notified, and has 65 days to serve a counter-notice. If the counter-notice is not given to the applicant, then under paragraph 5 of Schedule 6, he is entitled to be registered as proprietor. If however the counter-notice is served, then the applicant can only be registered as proprietor if he satisfies one of three exceptions. The registered proprietor will have two years to evict the squatter. If an eviction has not occurred after the expiration of these two years, then the applicant can apply a second time, and will be successful with his application. This of course means that there is no longer a threat of adverse possession to registered proprietors. If their land is in danger of adverse possession, they will be notified and can evict the squatter. The Land Registration Act itself is a perfect example that registered land is “virtually squatter-proof”.

This now leads us to the question “Would it be far preferable – and just – if adverse possession had been abolished completely in relation to registered land?” Firstly I will look at the justifications as to why adverse possession had been radically reformed.  The main thought process behind the act is that through electronic conveyancing, fast, efficient security can be granted to registered title owners. They need not feel under threat by adverse possessors, as they will be notified by the registry if a squatter is attempting to claim adverse possession.  Adverse possession is seen as “land theft”, and it was arguably at its height before the enactment of the Land Registration Act. This is seen both in the political context: “The current law has undoubtedly given rise to a number of abuses and straightforward land theft”, and in the eyes of the public in the Telegraph’s article which argued: “Lord Irvine’s reform of the Land Registry will help to shift the balance in favour of home owners.” The case of Pye Developments v Graham is an example of how the law has changed, favouring land owners. The case was decided before the Land Registration Act was enforced, and the claim of adverse possession was successful. However, if this was decided post Land Registration Act, the claim would have failed because Graham knew that the land did not belong to him. Under Schedule 6, paragraph 5; the adverse possessor must for the 10 year period reasonably believe the land belongs to him. Martin Dixon reinforces the need for the reform of adverse possession stating: “The existence of an off-register mechanism for destroying the titles seems to make a mockery of the state guarantee of title.” All of the reasons discussed above have the same consensus, that adverse possession is not welcomed in modern society. The Land Registration Act has severely limited the success of adverse possession claims in relation to registered land. Therefore, abolishing adverse possession in relation to registered land rather than enacting the Land Registration Act 2002 would have been far preferable and just.

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 However, there are three exceptions contained in Schedule 6 paragraph 5 which if the adverse possessor can fall under, he will succeed in his claim. Depending on how the exceptions are interpreted, there is reason to believe that adverse possession can still be successful under the Land Registration Act, thus demonstrating that the act is not “virtually squatter-proof” and that abolishment wouldn’t be far preferable and just.

The three exceptions are:

  1. “It would be unconscionable because of an equity of estoppel for the registered proprietor to seek to dispossess the applicant”; or
  2. “The applicant ...

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