The Land Registration Act 2002 heralds major changes to the law and procedures regarding adverse possession
The Land Registration Act 2002 heralds major changes to the law and procedures regarding adverse possession. To what extent do you feel that the traditional justifications for adverse possession in English land law cannot be supported in a system of land registration? Discuss if the recent legislative reforms will achieve a balance between the rights of the owner of the paper title and those of a squatter?
The law of adverse possession or 'squatters' rights' is considered by many to be unfair. This rule evolved as method of dealing with uncertain boundaries, but in recent high profile cases it has been used to dispose owners of extremely valuable plots of land. Critics argue that dispossessing the true owner of a piece of land through long occupation goes against the principles of their system of land registration, and indeed Law Commission recently referred to it as 'sanctioning a theft of land'.
Under the old regime, an adverse possessors (subject to certain criteria set out below), simply had to show at least 12 years of continuous occupation of the land to establish a legal title1. Furthermore, if it can be proved that the actual owner did not interrupted within that period, automatically he will considered as to be beneficial owner of the land, which was held on trust for him by the paper owner (i.e. the registered proprietor or the holder of the deeds in the case of unregistered land)2.
This procedure may still available, under the transitional provision of the Land Registration Act 2002 (LRA 2002) to adverse possessors who had already achieved 12 years occupation at the date the act came into force 13 October 2003. This old system clearly cannot be supported in a system of land registration due to the laxity of its nature which simply give the ownership to anyone who adversely possess the land of the actual owner within 12 years. Logically, we can argue that, how can one adversely possess land, which was not their to possess in the first place? Therefore, it is material to reform such regime urgently in order to protect the true owner from the force acquisition.
It has been suggested that the Land Registration Act 2002 heralds major changes to the law and procedures regarding adverse possession. The enforcement of LRA 2002 few years ago significantly changed the law of adverse possession in respect of registered land (the unregistered remains unchanged), making it such harder for a squatter to acquire title. The rights of squatters who had succeeded under the old law were protected for a transitional period (13 October 2003 until 13 October 2006) and by the end of that period, the LRA 2002 will fully implement in this area. However, is it possible for the true owner to have justice under the new law?? It will be discussed later.
As what had been discussed above, the provision under LRA 1925 and the Limitation Act 1980 were considered as unfair to the true owner since he will automatically lost his land without any notice or any rights to object if the squatters can prove that he was occupying the land for 12 years. Furthermore, the squatter only need to establish that he has taken physical possession of the land without the owner's consent3 and he has the intention to dispossess the true owner (his activity on the land must be different with the paper owner's plan)4. Under section 75 of the LRA 1925, it was stated that if the title was unregistered, the paper owner's title was extinguished and if the title was registered, the registered owner only become a trustee for his own land, holding it on trust for the possessor. It sounds ridiculous since the squatter can easily seize the land from the owner with the aids of government who passed such acts. Therefore, it is not outrageous if we argue that the former acts had oppressed the true owner by restricting his rights to deal with his land with his choice without interruption from any party including the government itself.
In facing such critism, the government had come with other excuses to cover their mistake by passing the LRA 1925. Here, they argued that it is actually the only way for them to force the true owner to appreciate their land especially whose owned a valuable
one. It will be a waste to leave those land without any development and therefore they has the rights to take action if the true owner's fault if he failed to comply with LRA 1925? Its still obviously shows that the LRA 1925 was violating the rights of the true ...
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In facing such critism, the government had come with other excuses to cover their mistake by passing the LRA 1925. Here, they argued that it is actually the only way for them to force the true owner to appreciate their land especially whose owned a valuable
one. It will be a waste to leave those land without any development and therefore they has the rights to take action if the true owner's fault if he failed to comply with LRA 1925? Its still obviously shows that the LRA 1925 was violating the rights of the true owner though the failureness of the paper owner to appreciate his land was said to be the reason behind the eligibility of the squatter to take over the ownership of the land. Whatever the purpose behind this act, it's still and continuously regarded as a violation against the freedom of the true owner on his land.
Moreover, there are many cases that shows how this act successfully 'seize' the ownership of the land from the true owner without any rights to object. As a result of this act, the court whose suppose to give fair and just judgment to the victimize party especially the actual owner, has no choice except interpret the provision of this act accordingly to the purpose laid down behind the passing of LRA 1925. Prior to the LRA 2002, most of the decision of the cases was held against the true owner or in order words the squatter succeed to have the title of the land.
The case of Mount Carmel Investments Ltd v Peter Thurlow Ltd and Another5, Buckinghamshire County Council v Moran6 and Markfield Investment Ltd v Evans7 are among the cases which visualize how the squatters can easily declared as the owner of the owned land by only established the prerequisite of 12 years occupation on the land when the case was brought before the court.
In Mount Carmel Investment Ltd v Peter, it was held that the true owner of a claim to possession of land in a letter sent to a squatter was not sufficient to prevent the squatter obtaining title by adverse possession. Accordingly, the letter sent to the defendants by the plaintiff's solicitors did not have the effect of causing the defendants to cease to be in possession for the purpose of acquiring title by adverse possession. Furthermore, it was stated that once the title to land was extinguished by adverse possession, any claim for profit by the true owner was also extinguished. Accordingly, since the plaintiff could not assert in the face of the defendants' adverse possession, the plaintiff was not entitled to damages for trespass.8
The case of Buckinghamshire also reached the same decision as in Mount's case. In giving judgment to the squatter9, it was held that the word 'possession' bore the traditional sense of that degree of occupation or physical control, coupled with the intention commonly referred as ' animus possidend' that would entitle a person to maintain an action in trespass in relation to relevant land. Therefore the degree of occupation of the squatter was sufficient since the intention required to establish was not an intention to own but merely to possess. The question here is that if the squatter only has the intention to possess, why later the court gave the ownership of the land to him since he did not intent so. This case together with other cases was received a lot of critism from the legal practitioners due to the confusion arose from it.
Moreover in Markfield Investment Ltd v Evans, it was held that in course of action by the true owner to recover his land, the issue of writ did not prevent time running in favour of the person in adverse possession. So, by referring to these three cases, it is clearly shows that most of the case that brought by the true owner before the court, will be decided in favour of the squatter if he can established the period of 12 years under the inefficient old law. It was really hard to see the true owner will succeed in recovering his own land though he was already done everything to prevent to time running. Based on the old law, the squatters will only can take over the land if the true owner did not realized and take any positive step to stop his land from adversely possess.
However, in reality it did not reached the same requisite as what happened in Mount's case. So, how such old regime can be sufficient to protect and give fair judgment to both parties. The LRA 1925 supported by the Limitation Act 1980 can be looked as only benefited the squatters whose in reality are not supposed and give any chances to acquire the title of the land which they already enjoyed for a long term without a permit from the true owner but yet still have those privileges under the old law. Therefore the coming of the LRA 2002 was gave a new life to the true owner to preserve the rights on their own land. But again, how far the rights of the true owner will be protected under this new law to achieve the balance with those of the squatters?
The introduction of the LRA 2002 had revolutionized the law of adverse possession at least in respect of registered land. The relevant sections of LRA 2002 came into force on 13 October 2003. Under those provisions it is no longer possible for a prudent landowner to be dispossessed without his knowledge, and prudence in this context no loner involves the regular physical inspection of his land. Instead a landowner will be protected, provided he keeps his address updated at the Land Registry and is capable of understanding and acting upon simple notices.
Section 15 of the Limitation Act 1980 no longer applies to registered land, and a registered proprietor's title to land cannot be extinguished by any adverse possession so long as it falls to be considered under the new scheme. The essence of that scheme is to provide an 'early warning' system that a squatter is about to acquire the right to be registered as the proprietor of land, and to provide the landowner with a period in which to take action to prevent his losing that land. Once squatter has been in adverse possession of land for 10 years, he acquires the right to apply to the Land Registry to be registered as the proprietor of it. So, once a squatter's application has been received by the Land Registry, notice of it is given to the registered proprietor to enable him to take necessary step accordingly.
It should be noted that under LRA 2002, once the owner has received notice of the squatter's application he has three months in which to notify the Land Registry of his opposition to it. The squatter's application will then automatically rejected unless he can establish one of three conditions10. Assuming for the moment that none of them apply, and the squatter's application is rejected, the landowner then has two years from the date on which that application is rejected in which to commence proceedings for possession. During this two-year period, and so long as he remains a defendant to pending possession proceedings thereafter, the squatter is not entitled to make another application to be registered as proprietor. However, if no proceedings are issued within those years, he may make a second application and this time it will succeed.
Of course, if in the meantime possession proceedings have been issued against the squatter and they have resulted in a judgment for possession, the squatter may not make his second application. But his right to make a second application is only executed against him and he is no longer in possession. So although our landowner can no longer be dispossessed behind his back he nevertheless needs to act decisively when notified of a challenge to his ownership. If he fails to oppose the squatter's first application within three months, or fails to commence possession proceedings against him within two years of its being rejected, or if he fails to execute a judgment given in those proceedings within two years of obtaining it, he will lose his land. In the last case his judgment for possession becomes unenforceable after two years.
So here, compare to the old law, we can see that the LRA 2002 seems to be balanced the rights of the true owner and the squatter. The true owner was given priority to take action accordingly and the successfulness of the squatter will depending on how he reacts upon the notice that had been given to him. If the true owner fails to act decisively to oppose the squatter's application within the specified time, then only the squatter will has the chance to possess the land. Therefore its all go back to the true owner actions whether he appreciate the chances given to him to maintain the title of the land or no.
However, the arguments still to be debated in the courts in cases to which LRA 2002 does not apply-principally to unregistered land and to those cases where possessory title had already been acquired by 12 years' adverse possession under the old regime before LRA 2002 came into force on 13 October 2003. Under the transitional provisions of LRA 200211, if the squatter's 12 years adverse possession has been completed before 13 October 2003, the landowner's title will already have been extinguished12 and the new scheme does not apply. The squatter is entitled to be registered as of right and his possessory title will survive any sale of the paper title as an overriding interest which takes place within the first three years13. However, where the sale takes place after 12 October 2006, the squatter's title will not be an overriding interest unless he is in actual occupation, and even then will not be protected if his occupation would not have been obvious to the purchaser or if, when asked, the squatter did not disclose it.
The scheme introduced by LRA 2002 is intended to strike a better balance between the conflicting of limitation and the preservation of proprietary rights than the old Limitation Act 1980. This is especially significant now that struggle between those two conflicting interest, fuelled by developments in the law of the human rights, is increasingly turning in favour of landowners. As a result a new category of cases has arisen where the 12 years period of adverse possession was completed before 13 October 2003, but after 2 October 2000 when the Human Rights Act 1998 came into force. Leading the charge in this development is Nicholas Strauss QC14 in the case of Beaulane Properties Ltd v Palmer15.
Beaulane Properties Ltd was registered owner of a 21/2 acre near Heathrow airport in London's green belt. Mr. Palmer was a neighbouring farmer who had used the field for grazing cattle and horses since the early 1980s. However, because the court found that Mr Palmer had concealed the fact that his occupation of the field was unlawful so as to prevent the limitation period running against Beaulane until June 1991, his 12- year period of adverse possession did not expire until June 2003. The case therefore fell to be considered under the pre-LRA 2002 regime, but subject to consideration of Article 1 of the First Protocol of the European Convention on Human Rights16.
The same arguments had been raised by Pye companies, unsuccessful in the House of Lords against the UK in the European Court of Human Rights.17. Here, the ECtHR rejected the United Kingdom's argument that when Pye had bought the land, it did so with the presumed knowledge that its title could be extinguished by 12 years adverse possession. Article 1 did not have so narrow an application. Pye had purchased a freehold title, which, unlike a lease which was limited temporally, was an absolute interest which was subject to any inherent restriction, limitation or qualification. It was solely the effect of the legislation which brought to an end this otherwise absolute interest. Furthermore, the legislation did not defeat Pye's interest at the moment of acquisition, but subsequently, once 12 years adverse possession had been made out. These factors meant that Article 1 of the Protocol was engaged and has been breached. Therefore the judgment was given in favour of Pye who is the true owner of the land.
Arguably, the cumulative effect over the coming years of the implementation of the Land Registration Act 2002 is to create a system of registered title which has one of its objectives is the realization of the concept of absolute title established by register. It may well be that one of consequences of the establishment of such system is the decline of claims by adverse possession. This coupled with the ECHR judgment, which effectively paves the way for compensation claims to be made against the Government in certain cases, will most surely see the gradual if not rapid decline of adverse possession claims.
In other words, the effectiveness of LRA 2002 cannot be fully proved for the time being since it just solely implemented on 13 October 2006 without any insertion of LRA 1925. However, it should be noted that the provisions established under this new law are seems to be more friendly towards the landowner where at the end of the day the balance between the successful claims of the squatter and those rights of the true owner can be achieved. But one thing that clearly reflected from the enforcement of LRA 2002 plus with the 'rights bring home' through the passing of Human Rights Act 1998 is that the privileges of those squatters to possess the land from the true owner are weaken from time to time.
It is not impossible that one may come where the law regarding to adverse possession will be extinct from the UK land registration system. Its all depend on how the true owners acting decisively and smartly upon the attempt of those squatters to seize their ownership on the land. They should use wisely everything that had been provided in front of them in order to preserve their rights from being continuously violated.
s 15 of the Limitation Act 1980
2 s 75 of the Land Registration Act 1925
3 Powell v Mcfarlane (1979) 38 P & CR 452
4 Buckinghamshire County Council v Moran (1988) 86 LGR 472
5 [1988] 3 All ER 129
6 [1990] Ch 623
7 [2001] 2 All ER 238
8 Re Jolly, Gathercole v Norfolk [1900] All ER Rep 286 applied
9 Following the judgment of Slade J in Powell v Mcfarlane
0 In paragraph 5 of Schedule 6 of LRA 2002
1 In Schedule 12
2 By section 17 of the Limitation Act 1980
3 13 October 2003 until 13 October 2006
4 Sitting as a deputy High Court Judge
5 [2005] 14 EGCS 129 (Ch D)
6 Peaceful enjoyment of possessions
7 JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2002] 3 All ER 865
