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:
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“It would be unconscionable because of an equity of estoppel for the registered proprietor to seek to dispossess the applicant”; or
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“The applicant is for some reason entitled to be registered as a proprietor”; or
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“In some circumstances, the land is adjacent to land belonging to the applicant”
The first exception (a) is likely to be the standard choice for judges who are keen to see the adverse possessor succeed. In the Law Commission’s report, Land Registration for the Twenty-First Century, some example situations that would fall under the first exception are given. However, the possible scenarios are actually far wider, as show in Schedule 6 paragraph 5(2), giving the courts wide discretion in the area. Martin Dixon puts forth the argument that an adverse possessor may be granted registration even if there is an objection from the paper owner, because of the possible development of a “de facto limitation period where (say) 20 years’ adverse possession raises a presumption of estoppel.” Martin also argues that this would be entirely feasible, pointing to the 1925 legislation, and its “imaginative interpretations of apparently clear statute in order to achieve what the court thinks is a desirable social goal.”The second exception is also covered in the Law Commission’s report, where example scenarios are given. However, like the first exception, there are also many other possible scenarios which could fall under the exception. One such possibility could be using the remedial constructive trust generously. The third exception does not require debate; it upholds the use of adverse possession in boundary disputes.
The interpretation of the three exceptions is an excellent illustration of the argument that registered land is not “virtually-squatter proof”. They show that it is possible for individuals to claim for adverse possession under the Land Registration Act, despite the apparent emasculation. This plays a role in the topic of abolishment of adverse possession in registered land, since there are still ways to claim adverse possession through the exceptions, then abolishment is unnecessary.
In the report “Land Registration for the Twenty-First Century”, the Law Commission gave justifications of why adverse possession should be present in registered land; these justifications are also excellent reasons for why adverse possession in relation to registered land should not be abolished. When registered land title is in question, registration is more important than possession, and the only way in which the title can be taken away is through a change in the register. However, the scenarios where this can happen are only under the principle of qualified indefeasibility, making the scenarios extremely limited. Persons, who register their land, should justifiably be awarded with the protection of their land. However, in certain circumstances there needs to be a route to override registration. The Law Commission have given just four situations which fall under the need to override registration. These justifications are further examples that adverse possession is needed in registered land, and abolishment is not far preferable and just. We will have to wait for years before we find out the true impact of the Land Registration Act on adverse possession cases. Adverse possession in relation to unregistered land will now be discussed.
With regard to unregistered land, section 15(1) of the Limitation Act 1980 states that: “no action shall be bought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him, or if first accrued to some person through whom he claims, to that person”. In simple terms, following 12 years of adverse possession, a squatter can argue that he has rights in the property. The Land Registration Act did not change the rules governing adverse possession in relation to unregistered land. “Those who go to sleep on their claims should not be assisted by the courts in recovering their property.” This is the general view of why adverse possession should exist, and it is one of the main arguments as to why adverse possession in unregistered land should not be abolished. I will discuss this, and other topics surrounding the argument.
In the report “Land Registration for the Twenty-First Century”, the Law Commission put forward four justifications for the need of adverse possession in unregistered land, and these justifications are clear reasons why adverse possession should not be abolished. Firstly, Martin Dockray states that adverse possession should stop plaintiffs from sleeping on their rights. The Land Commission argue this point, by explaining that landowners should be vigilant in protecting their rights. The case of Fairweather v St Marylebone Property Co Ltd found that adverse possession has a positive effect, Lord Radcliffe stated: “a squatter does in the end get title by his possession and the indirect operation of the [Limitation] Act and he can convey a fee simple.” Secondly, it is argued that land must always remain marketable, and the most effective way of doing this is by allowing adverse possession. If a landowner does not use his land and sleeps on his rights, then there must be a mechanism in place for a squatter to be able to acquire title. The Law Commission have given two possible scenarios where this can happen. Thirdly, in certain scenarios it is possible for hardship to be present, adverse possession can prevent such hardship. An example would be a squatter entering land without knowing that he/she did not own it, and in time incurring expenditure from the land in question. Finally, “title to unregistered land is relative and depends ultimately upon possession.” The person, who can show that they have the best possession of the land, should be the person who holds the title of the land. Una Woods summarised the Law Commissions findings by concluding: “The implication seems to be that ownership of unregistered land is precariously linked with the maintenance of possession; the owned who goes out of possession does so at his peril and has only himself to blame if a squatter acquires ownership through adverse possession.” This is evidence that the judiciary fully believe in upholding adverse possession in unregistered land, and unless there is another way to overcome the justifications given by the Law Commission, abolishment of adverse possession in relation to unregistered land is certainly not preferable and just.
Contrary to the above arguments, many believe adverse possession should be abolished in relation to unregistered land. In the case of Hiern v Mill, Lord Erskine stated “no man in his senses would take an offer of a purchase from a man merely because he stood on the ground.” Despite the age of this case, the statement by Lord Erskine still has value. Landowners find it ludicrous that they need to protect the land they have legally bought, in order to keep possession of it. The Law Commission encourage persons to register their land as soon as possible; however, it is very unfair that if they do not register their land, they cannot be safeguarded by the notification procedure under the Land Registration Act 2002. Una Woods believes that adverse possession in unregistered conveyancing has been exaggerated, not giving enough protection to the owner against adverse possessors.
Having thoroughly discussed whether the abolishment of adverse possession in relation to registered and unregistered land would have been preferable and just, I believe that abolishment is not the answer. With regards to registered land, I think that the Land Registration Act 2002 is an effective mechanism for dealing with adverse possession, and abolishment would not have been preferable. If a person has purchased property, then he/she should not have to protect their land from adverse possessors, thus if a claim is made, the owners are notified by the registry and can subsequently proceed to evict the squatter. On the other side of the argument, there are three legitimate exceptions where a squatter can still successfully claim adverse possession. As discussed, these three exceptions are open to wide interpretation; therefore, the Land Registration Act may not be as strict as first thought. Regarding unregistered land, I believe that adverse possession should not be abolished, as it still has a very important role, the reasons which brought me to this conclusion have been discussed the reasons above. However, I feel that the law still needs improving. Because the Land Registration Act does nothing to reform the laws on adverse possession in unregistered land, I feel that Una Wood’s recommendations of extending the veto rule to unregistered land would be the most beneficial.
The veto rule has shown to be successful in other jurisdictions, namely New Zealand, South Australia and Queensland where it replaced a prohibition rule. Tasmania and England both replaced their overriding rule with a veto rule. The English veto rule was set out in the Land Registration Act; it allows the removal of registered title owners from the protection of the registry if they fail to evict squatters. It also creates a pathway for squatters with genuine, deserving interests in the land to acquire adverse possession. It is left to question why the veto rule was not extended to unregistered land with the enactment of the Land Registration Act.
There are many advantages to the extension of the veto rule so that it would also cover unregistered land, the main advantage being consistency. Both unregistered and registered title owners would be given the same protection against adverse possession. Logically, this should be the case, as individuals pay the same price for land, despite whether it is unregistered or registered. The Law Commission has approached the possibility of extension to unregistered land, however, they state: “It would not be easy to replicate such a system in relation to unregistered land, and to the extent that it could be, it would require court proceedings.” Una Woods argues with this statement, giving possible scenarios to avoid such cases.
The Land Registration Act does indeed seem to render registered land “virtually squatter-proof.” If a squatter is attempting to gain adverse possession of a registered title owners land, the title owner will be notified by the Registry, and can proceed to evict the squatter. The vast majority of landowners would take action against the squatter, as no individual would want to give up their land for free, thus decreasing the chance of success for an adverse possession substantially. However, if an examination of the three possible exceptions is made, then it is clear that there is still a possibility of a successful adverse possession claim. Martin Dixon critically analyses the exceptions, which go against the idea that registered land is “virtually squatter-proof.” It remains to be seen whether this statement is true. On the enactment of the Land Registration Act, and at the present day, it is apparent that registered land is “virtually squatter-proof”; however, much time needs to pass in order to make an informed decision. If many successful adverse possession claims are made in the future, then of course, the statement is not correct.
I have thoroughly discussed the question of whether it would have been far preferable, and just, to abolish adverse possession in relation to registered and unregistered land instead of the enactment of the Land Registration Act. The problem is that adverse possession under unregistered and registered land is completely inconsistent. Registered land owners are offered protection from adverse possessors, whereas unregistered land owners are offered no protection at all. Abolishment of adverse possession is not the answer; I have shown that adverse possession has a worthy place in relation to registered land. Registered title owners are offered protection, and adverse possessors have a gateway to possession via the three exceptions, if their claim is genuine and deserving. With regards to unregistered land, adverse possession still needs to be present: Land needs to remain marketable, landowners should not sleep on their rights, hardship is eased and title based on possession and use of land is paramount. Dissenting opinions in the case of JA Pye (Oxford) argue that the justifications for adverse possession in unregistered land were stronger than that of registered land. This is a clear example that adverse possession should not be abolished. However, the current system is far from adequate, and I believe that the veto rule should be extended to unregistered land, for reasons argued by Una Woods.Abolishment of adverse possession is not far preferable, and just, to the enactment of the Land Registration Act for the reasons discussed in this paper. Changes need to be made to rectify the inconsistencies of adverse possession between unregistered and registered land, because as it stands, “adverse possession has become a tale of two systems.”
Word count including footnotes: 3277
Word count excluding footnotes: 3011
M Dockray, “Why do we need Adverse Possession?” [1985] Conv 272
The Law Commission Report 254 Land Registration for the Twenty-First Century
Land Registration Act 2002
Land Registration Act 2002 – s96
“Unlocking Land Law” Second Edition. By Judith Bray, page 495
M. Dixon, ‘The reform of property law and the Land Registration Act 2002: A risk assessment’ [2003] Conv 136
Limitation Act 1980 ss.15, 16 and 17
Mr. Wills – Land Registration Bill [Lords]
Telegraph: “Revenge of the ‘squatter swatter’” – 4th September 2001
Joshua Rozenberg- Telegraph: “Revenge of the ‘squatter swatter’” – 4th September 2001
Pye Developments v Graham [2002] 3 All E.R. 865
Land Registration Act 2002. Schedule.6, para.5(2)
Report No 271, para. 14.42
M. Dixon, ‘The reform of property law and the Land Registration Act 2002: a risk assessment’ [2003] Conv 136
Entitled under will or by uncompleted contract, Report No. 271, para. 14.43
Law Com No 254 para 10.13, 10.14, 10.15 and 10.16
RB Policies at Lloyd’s v Butler [1950] 1 KB 76
The Law Commission Report 254
Fairweather v St Marylebone Property Co Ltd [1963] AC 510, 535
Law Com No 254, para 10.7
Una Woods – The English Law on Adverse Possession: A tale of Two Systems. CLWR 38 1 (27)
(1806) 13 Ves. 114 at 122
Law Com No 254, para. 10.45
JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45