The test for animus possidendi was adopted by the Court of Appeal in Buckinghamshire County Council v Moran. To prove animus there must be “an intention for the time being to possess the land to the exclusion of all other persons, including the owner of the paper title,” so far as is reasonably practicable and so far as the processes of the law will allow. What is required for this purpose is not an intention to own or even an intention to acquire ownership, but an intention to possess. The basic underlying principle of the doctrine is that a person in possession of land has a perfectly good title against all the world but the rightful owner. This “is one of the fundamental cornerstones of our law of real property…which has important day-to-day implications.”
Rights of action are limited in point of time and are lost if not pursued within due time, this wholly depends on the statute. Time starts to run when adverse possession has been taken by another. Time will continue to run in favour of the squatter unless and until he vacates the premises or acknowledges the true owner’s title (Mount v Carmel Investments Ltd v Peter Thurlow Ltd). Time runs afresh for the purposes of limitation if there is a written acknowledgement (section 29 of the Limitation Act 1980). If a squatter is dispossessed by another, latter can add the former’s period to his own against the owner. Twelve years must pass since adverse possession was first taken by the first squatter. The adverse possession must be continuous. Limitation extinguishes the previous owner’s title. The registered proprietor is said to hold the land on trust for the squatter until the squatter is registered instead.
The Law Commission and the HM Land Registry have jointly recommended that in relation to registered land adverse possession should not itself not bar the title of the registered proprietor. The fact that the land was registered would protect the proprietor against claims of adverse possession. This recommendation is only in relation to registered land. It would make it considerably more difficult to acquire title to registered land by adverse possession. After ten years of adverse possession of a registered estate, a squatter would be entitled to apply to the registrar to be registered as proprietor. The registrar would then serve notice of the squatter’s application on the registered proprietor and others with interests in the land. If the squatter were rejected, the registered proprietor would then have two years either to commence proceedings to evict the squatter or regularize his position, as by granting him a lease or a license unless the squatter can bring himself within one or more of three conditions. If the proprietor does nothing after the two year time period has ended then the squatter can reapply for registration whether or not the original proprietor objected. The joint consultation document also recommends that the current trust mechanism for giving effect to adverse possession in registered land should be abolished. This scheme will make it considerably more difficult for a defendant to succeed to obtaining ownership rights to property which he has had possession of for a long period of time.
It is in the public interest that a person who has long been in undisputed possession should be able to deal with the land as owners. Reasons for having a doctrine of adverse possession are many. It protects the defendants from stale claims and encourages claimants to steep on their rights. It preserves the marketability of land by ensuring that land ownership and the reality of possession do not significantly diverge. To make prove of adverse possession more demanding is likely to impede on the marketability of land. It prevents hardship in a case where a person takes possession of land in the reasonable but mistaken belief that he or she is the owner of the land. It also facilitates unregistered conveyancing. A period of adverse possession fill in gaps that would otherwise be ‘blots’ on a title to land in relation to unregistered land, e.g. when documents are missing. This is because the basis to a title to an unregistered estate is possession. Where the land is registered the justification for the doctrine of adverse possession is considerably weakened. The recommendations are intended to make sure that the doctrine is not applied where the rationale is absent. At common law only the House of Lords can change the test for animus and this will only happen if there is some compelling reason to do so. The new scheme also gives greater protection to those who register as proprietor of land. It also gives more of an incentive for people to register so there will be less disputes over who is has ownership rights.
In conclusion, where land is unregistered adverse possession plays an important role in filling in the ‘gaps’ in ownership where possession has been abandoned meaning the owner is unknown. Where land is registered, however, this argument is weakened. The true owner is known, so in the majority of cases there are no gaps to fill in. The common law system at present is unlikely to change in relation to registered land. Therefore, in this respect the Land Registration Bill’s proposed scheme can only be a “good thing.” However, it seems that the new scheme would undermine the main reason for establishing the doctrine in the first case; that a person who has long been in undisputed possession of the land should be able to act as the owner. It seems unfair that a person who has been in possession of land for ten years and the owner didn’t even notice, could have the land taken away from him. It does seems however that the owner of the paper title should be notified that ownership of his land is under threat of being transferred to another person. The greater protection afforded to the registered proprietor by the new scheme can also be regarded as a ‘good thing’ as this will encourage the owners of land to register therefore reducing the number of disputes other who the true owner of land is. For these reasons it can be said that the Land Registration Bill seeking to marginalise adverse possession in relation to registered land can only be a “good thing.”
Bibliography
Buckinghamshire CC v Moran [1990] Ch 623
Burns, Chesire & Burns Modern Law of Real Property; Butterworths; London; 2000; 16th ed.
Burns, Maudsley & Burns Land Law, cases & materials; Butterworths; London; 1998; 7th ed.
Dixon, “Adverse Possession: stopping the ticking clock,” S.L.Rev., 2001, 32 (Spr.), 60-61.
Megarry & Wade, The Law of Real Property, Sweet & Maxwell; London; 2000; 6th ed.
Powell v McFarlane (1979) 38 P&CR 452.
Land Registration Bill 2001
Law Commission & HM Land Registry Joint Consultation Document, “Land Registration in the 21st Century”.
Radley-Gardner, “Adverse possession and the intention to possess – a reply”, Conv. & Prop. Law. 2001, Mar/Apr, 155-176.
Buckinghamshire CC v Moran, op cit, at 634
The Law Commission & HM Land Registry, Joint Consultation Document “Land Registration in the 21st century.
Land Registration Bill 2001
Law Commission & HM Land Registry, op cit.
