Impact of Land Registration Act 2002 on Law of Adverse Possession in England

Citing relevant cases, explain to what extent you agree that the Land Registration Act 2002 has revolutionised the law of adverse possession in England.

Introduction

Adverse possession (AP) is widely regarded as something of an idiosyncrasy in the law, for it provides a set of rules which can be utilised by an unlawful trespasser to acquire title in land over that of the legal proprietor[1] therefore it can arguably be said to serve as a lawful means of land theft.[2] Given such controversial status, it is not surprising that the law of AP has been long criticised and calls for reform have been ever-present. Such reforms came upon the Law Commission (LC) seeking to modernise the broader sphere of law land by way of the Land Registration Act 2002 (LRA2002). The sweeping reforms of the 2002 Act dramatically impacted the law of AP in such a way, that it could be argued they revolutionised the law on AP in England and Wales. This essay will seek to examine the veracity of such a statement.

Establishing AP

The rules pertaining to the factual establishment of AP are the same, regardless of whether the land is unregistered or registered.[3] The commonality of factual establishment is due to the fact the principles are not statutory in nature, but have instead been fought through courts[4] and developed over many years of case-law precedent.[5]

Elements of a Claim

In order for a claim for AP to be factually successful, various elements must be demonstrated by the trespasser[6], namely; that they were factually in possession of the land and secondly that they had the intention to possess.[7] With regards to the factual possession of land the general understanding is that the possession must be exclusive[8], which requires the trespasser to deal with the land as a defacto occupying owner.[9] But also that the possession be open and easily identifiable[10]. Further, the possession must be adverse,[11] namely that it is done so as an unlawful trespasser.[12] In addition to the above, the trespasser must also possess an intention to possess.[13] The intention to possess refers to an intention to exclude the world at large, including ‘the paper owner only so far as is reasonably possible’.[14] It is true therefore, that the trespasser need not believe the land is his, or the intent to acquire it, all that is essential is that he had the intention to exclude all others.[15]

Given the above, it could be argued that the means of factually obtaining AP are relatively simple, however, given the reforms of LRA2002, there exists a three-way system of AP.[16]
 

Unregistered Land & AP

With regards to unregistered land (URL), the law of AP is governed by the Limitations Act 1980 (LA1980). The effect of AP claims being governed under the LA1980, means that adverse possessors are required to bring claim only after a statutorily defined period of time has been met. Under the LA1980, the limitation period for unregistered land only is that of 12 years.[17] As such, someone whose unregistered land has been in adverse possession by trespassers for a period of 12-years or more, will lose claim to legal title[18] as well as losing right to sue to recover his land.[19]

Registered Land (RL) and the LA1980

With regards to RL, where the trespasser had taken adverse possession for a period of 12-years or more, prior to the enactment of the LRA2003, the legal proprietor loses his legal claim to recover the land. However, by virtue of the property being registered, he does not lose legal title to the land, as this is protected by virtue of the LRA1925,[20] instead, he will hold the property on trust for the trespassers who is then able to apply for registration in his place. The immediate loss of registered title, does not occur because the legal system has placed great importance on the notion of registered title as a means of protecting an individual’s rights in land- however, as can be seen, that is not absolute.[21]

RL under the LRA2002

The rules enacted under the LRA2002, apply to any trespasser who has not completed the relevant period of possession specified under the 1980 legislation, prior to the LRA2002 coming into force.[22] Today, time is said to no longer run against the owner as previously under the LA1980 and there will be no immediate and unencumbered claim by virtue of the period of possession alone.[23]  The reforms could arguably be defined as revolutionary because they undoubtedly shift the very foundations of AP under English law. The far reaching nature of the reforms and detailed below.

AP under the LRA2002: Revolutionary Reforms

It could be argued, that upon the enactment of the LRA2002, which as its core purpose sought to introduce a revolutionary new system of e-conveyancing where formal registration of title was intended to provide a definitive record of ownership[24], that the continued relevance of AP was something of a legal misnomer.[25] One of the last cases of AP to be decided before the reforms of the LRA2002 where introduced was the case of JA Pye (Oxford)[26]. JA Pye represent the inherent injustice to the old law of andprovided the then House of Lords with one of the most significant claims of AP in modern times. The case led to the Lords upholding an AP claim over 25 hectares of agricultural land belonging worth £10 million.[27] However, the did so with great recognition of the inequity they were bound to decree, with Lord Bingham noting, that he arrived at his affirming judgement ‘with no enthusiasm’.[28] The unenthusiastic approach taken by Lord Bingham, arguably advocates the social and moral distaste in upholding claims of AP. Property ownership has long been viewed as being a socially approved means of control over a valued and finite commodity[29] and the upholding of AP claims, as in the case of JA Pye and as elucidated by Bingham LJ, seemingly represents a socially unapproved form of land grabbing.[30] International jurisprudence seemingly agrees with the distasteful nature of upholding claims of AP, with it being noted in Article 1 of the European Convention of Human Rights, which notes that ‘Every … person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law’.[31]

Given the above, it could be argued that it was imperative that Parliament sought to remedy the unconscionable and inequitable imbalance between legal title holder and the unlawful trespasser, the LRA2002 did that, in a variety of ways.

Reinforcement of the Concept of Ownership

Under the LRA2002, one of the fundamental changes to come about was the removal of the period of limitation against registered title[32] and removing the ability that a registered title owner could lose claim to their title merely because an unlawful trespasser had adversely possessed their land for a fixed period of time.[33]

But whilst the architects of the 2002 reforms did recognise and sought to affirm the view that proprietary ownership was worthy of significantly increased protection, they did not seek to remove altogether the ability to make claims under the doctrine of AP, they did however make it significantly more difficult for such claims to succeed. In consideration of this, the LRA2002 established a codified procedure of application whereby the trespasser can apply to the land registrar to be named as the registered proprietor of the land title.[34] Where such an application is made the statutory scheme laid out within Schedule 6 of the LRA2002 is triggered.[35] This change ultimately shifts the burden of responsibility to act from the owner to the trespasser and as such, the legal proprietor and holder of legal title to the land, need only act to strengthen and affirm his proprietary rights until the statutory scheme is triggered.[36]

The Statutory Scheme

Under the LRA2002, where a trespasser has adversely possessed land or property for a period of at least 10 years[37], then they become eligible to make an application[38] to the land registrar to be appointed as the legal title owner of that property.[39] In making the application it is a requirement that the trespasser has had at least 10-years undisturbed possession of the property and that he is actually in possession of the property at the time of the application.[40] Where such initial requirements are satisfied and the registrar, in examination of the whole claim, concludes there to be a strong case for the rectification of register in favour of the trespasser, notice will be issued to the legal title holder and all associated registered parties.[41] On receipt of the notice, the registered title holder will have three response options, namely; consent to the application- whereby he agrees to the trespasser being granted title over the land,[42] the registered title holder may file an objection to the application on grounds  of factual inaccuracies to the claim or thirdly,  the registered title holder may serve a counternotice requiring the registrar to deal with the trespassers application in line with Paragraph 5 of the Schedule[43]- such a counternotice in practice defeats the trespassers claim and prevents him being named as the new title holder.[44] Evidently, the new statutory scheme, in its shifting of the burden to act, will dramatically affect the number of successful claims of AP.

Whilst the reforms have been far reaching, they have not been disproportionate as to disregard the very real rights that the adverse possessor may have acquired by way of his lengthy possession of the land.  Within the LRA2002, provisions have been included which provide the ability to defeat the legal proprietor’s objection to the trespassers claim, by satisfying one of the criteria detailed within.[45]  those conditions are where ‘it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant’[46], where ‘the applicant is for some other reason entitled to be registered as the proprietor of the estate’[47] and thirdly, where there exists some form of boundary dispute' exception.[48]

So, given the above, whilst the LRA2002, continues to recognise AP the LRA2002, has significantly strengthen the position of registered proprietors and provided a ‘much watered-down version of [AP].[49]

URL: Failures of the Reforms

Despite the undoubtedly positive reforms to the law of AP with regards to registered land, the LRA2002, failed to address the continued issues with regards to the law of AP in cases of URL.[50] It could be argued, that the failures of such address prove to be one of the fundamental flaws of the system as it currently stands and that the LRA2002 abandons owners of unregistered to the potential mercy of AP claims.  As noted above, the law of AP with regards to URL, continued to be governed by the Limitation Act 1980 and thus makes it considerably easier for claims of AP to be successful. During the consultation period prior to the enactment of the LRA2002, the LC discussed various justifications for the operation of the doctrine of AP[51], the most relevant to justify their non-intervention in relation to URL is the sleeping plaintiff justification[52]- The rationale behind the sleeping plaintiff justification, this arguably represents a vocal warning by the LC, to owners of URL, that they should not sleep on their rights. Whilst this may appear an unfair and inequitable statement, it broadly seems to reinforce the notion that URL, is simply a lesser protected form of ownership compared to registered land. As such, it could be said that by the refusal to reform the law of AP with respect to URL, reinforces the notion that ownership of URL, is not solely dependant on the possession of a title deed, but also – the continued physical possession of the land itself. It could be argued that failure to reform the law of AP could also be said to be an example of the LC recognising the precious commodity that is land and that ownership is not a human right per say, but a social privilege.

Conclusion

 

Given the above, the law of AP is undoubtedly fraught with controversy- for the legal title holder, it represents a lawful means of land theft and disregards the inalienable rights of an individual to freely possess and enjoy property. However, for the adverse possessor, the doctrine represents a means of acquiring ownership and use of a valued commodity, which has seemingly been forgotten and disregarded.  The LRA2002, went someway to redressing the imbalance that was once in favour of the unlawful trespasser- it can be said that the system in practice today represents a weakened doctrine of AP, but still provides means of AP claims being successful.Whilst successful AP claims will, by virtue of the LRA2002, be less common, they are still capable and arguably, they will succeed only in cases where the land and property has truly been forgotten about and within a society where land and property ownership are broadly a social privilege, such a balance is arguably correct.

Bibliography

Textbooks

• Bevan C, Land Law (1st edn. OUP 2019)
• Dixon M, Modern Land Law (9th edn. Routledge 2014)
• George M and Layard A, Thompson’s Modern Land Law (7th edn, OUP 2019)
• Gray K and Gray S, Land Law (6th edn. OUP 2009)
• MacKenzie J-A and Phillip M, Textbook on Land Law (14th edn. OUP 2012)
• McFarlane B, Hopkins N, Nield S, Land Law: Text, Cases, and Materials (3rd edn. OUP 2015)
• Smith R, ‘The role of registration in modern land law’, in Louise Tee (editors), Land Law: Issues, Debates Policy (1st edn Willan Publishing, 2002)

Journals

• Dixon M, ‘Adverse Possession and Registered Land’ [2009] Conveyancers Journal
• Panesar S and Wood J, ‘Adverse Possession and Article 1 of the European Convention’ (2009) 30 Liverpool Law Review
• Pawlowski M and Brown J, ‘Adverse Possession and the Transmissibility of Possessory Rights: The Dark Side of Land Registration?’ [2017] Conveyancers Journal
• Tee L, ‘Adverse Possession and the Intention to Possess’ [2000] 64 Conveyancing Journal,
• Woods U, ‘The English Law on Adverse Possession: A Tale of Two Systems’ (2009) 38 Common Law World Review,

Government Publications

• Northern Ireland Law Commission, ‘Report on Land Law NILC8’ (NILC 2010)
• Northern Ireland Law Commission, 'Supplementary Consultation Paper Land Law NILC3' (NILC 2010)
• The Law Commission, ‘Law Com No 254, Land Registration for The Twenty-First Century a Consultative Document (HMSO 2001)

 

Websites
 

• 'Acquiring Land by Adverse Possession' (Uk.practicallaw.thomsonreuters.com, 2019) accessed 1 December 2019.

Table of Legislation

• The Land Registration Act 1925
• The Land Registration Act 2002
• The Limitation Act 1980,
  The European Convention of Human Rights 1950

 

Table of Cases

• Crosdil v. Hodder (2011) [2011] EWLandRA 2009
• Leigh v Jack (1870) 5 Ex D 264
• Powell v McFarlane (1977) 38 P & CR 452
• British Waterways Board v Toor [2006] EWHC 1256
• Powell v McFarlane (1977) 38 P & CR 452
• Brown v Perry [1991] 1 WLR 1297
• Buckinghamshire CC v Moran [1990] Ch 623
• Allen v Matthews [2007] EWCA Civ 216
• Colchester v Smith [1991] Ch 448
• Williams v Jones [2002] EWCA Civ 1097
• J A Pye (Oxford) Ltd v Graham [2002] 3 WLR 221
• Balevents Ltd v. Sartori [2011] EWHC 2437 (Ch)

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[1] Martin Dixon, Modern Land Law (9th edn. Routledge 2014) 405

[2] Martin Dixon, ‘Adverse Possession and Registered Land’ [2009] Conveyancers Journal, 136, 151; Ben McFarlane, Nicholas Hopkins, Sarah Nield, Land Law: Text, Cases, and Materials (3rd edn. OUP 2015) 281

[3] Martin Dixon, Modern Land Law (9th edn. Routledge 2014) 461; Chris Bevan, Land Law (1st edn. OUP 2019) 131

[4] Northern Ireland Law Commission, 'Supplementary Consultation Paper Land Law NILC3' (NILC 2010) para. 2.3

[5] 'Acquiring Land by Adverse Possession' (Uk.practicallaw.thomsonreuters.com, 2019) accessed 1 December 2019.

[6] Powell v McFarlane (1977) 38 P & CR 452

[7] Northern Ireland Law Commission, ‘Report on Land Law NILC8’ (NILC 2010) Para 12.3

[8] Leigh v Jack (1870) 5 Ex D 264; British Waterways Board v Toor [2006] EWHC 1256; Balevents v Sartori [2011] EWHC 2437

[9] Powell v McFarlane (1977) 38 P & CR 452

[10] Brown v Perry [1991] 1 WLR 1297 para 1302 (Lord Templeman); Martin George and Antonia Layard, Thompson’s Modern Land Law (7th edn, OUP 2019) 233; The Limitation Act 1980, Section 32; Buckinghamshire CC v Moran [1990] Ch 623

[11] Martin George and Antonia Layard, Thompson’s Modern Land Law (7th edn, OUP 2019) 232

[12] Allen v Matthews [2007] EWCA Civ 216; Colchester v Smith [1991] Ch 448

[13] Louise Tee, ‘Adverse Possession and the Intention to Possess’ [2000] 64 Conveyancing Journal, 1

[14] Pye v Graham [2003] 1 AC419 para 46 (Lord Brown-Wilkinson); Martin Dixon, Modern Land Law (9th edn. Routledge 2014) 465

[15] Williams v Jones [2002] EWCA Civ 1097

[16] Judith-Anne MacKenzie and Mary Phillip, Textbook on Land Law (14th edn. OUP 2012) 142

[17] The Limitations Act 1980, Section 15

[18] Judith-Anne MacKenzie and Mary Phillip, Textbook on Land Law (14th edn. OUP 2012) 142

[19] The Limitations Act 1980, Section 17

[20] The Land Registration Act 1925, Section 75(1)

[21] Judith-Anne MacKenzie and Mary Phillip, Textbook on Land Law (14th edn. OUP 2012) 142

[22] Ibid. 142, 143

[23] 'Acquiring Land by Adverse Possession' (Uk.practicallaw.thomsonreuters.com, 2019) accessed 1 December 2019.

[24] JA Pye (Oxford) Ltd. V Graham (2003) 1 AC 473 para. 2 (Bingham LJ)

[25] Kevin Gray and Susan Gray, Land Law (6th edn. OUP 2009) 468

[26] JA Pye (Oxford) Ltd. V Graham (2003) 1 AC 473

[27] Sukhninder Panesar and Jane Wood, ‘Adverse Possession and Article 1 of the European Convention’ (2009) 30 Liverpool Law Review 77 , 3

[28] Ibid. para 2 (Bingham LJ)

[29] Kevin Gray and Susan Gray, Land Law (6th edn. OUP 2009) 468

[30] Ibid.

[31] The European Convention of Human Rights 1950, Article 1

[32] The Land Registration Act 1925, Section 96

[33] Judith-Anne MacKenzie and Mary Phillip, Textbook on Land Law (14th edn. OUP 2012) 137

[34] Martin Dixon, Modern Land Law (9th edn. Routledge 2014) 420

[35] The Land Registration Act 2002, Schedule 6

[36] Martin Dixon, Modern Land Law (9th edn. Routledge 2014) 421

[37] The Land Registration Act 2002, Schedule 6, Paragraph 11; J A Pye (Oxford) Ltd v Graham [2002] 3 WLR 221

[38] The Land Registration Act 2002, Schedule 6, paragraph 1

[39] Martin Dixon, Modern Land Law (9th edn. Routledge 2014) 483

[40] Crosdil v. Hodder (2011) [2011] EWLandRA 2009

[41] The Land Registration Act 2002, Schedule 6, paragraph 2; Martin Dixon, ‘Adverse Possession and Registered Land’ [2009] Conveyancers Journal, 151

[42] Balevents Ltd v. Sartori [2011] EWHC 2437 (Ch)

[43] The Land Registration Act 2002, Schedule 6, paragraph 5

[44] Mark Pawlowski and James Brown, ‘Adverse Possession and the Transmissibility of Possessory Rights: The Dark Side of Land Registration?’ [2017] Conv 116-131, 119

[45] Ben McFarlane, Nicholas Hopkins, Sarah Nield, Land Law: Text, Cases, and Materials (3rd edn. OUP 2015) 278

[46] The Land Registration Act 2002, Schedule 6, Paragraph 5(2)(a)

[47] Ibid. Schedule 6, Paragraph 5(3)

[48] Ibid. Schedule 6, Paragraph 5(4)(a)-(d)

[49] Roger Smith, ‘The role of registration in modern land law’, in Louise Tee (editors), Land Law: Issues, Debates Policy (1st edn Willan Publishing, 2002) 55; Kevin Gray and Susan Gray, Land Law (6th edn. OUP 2009) 469

[50] Una Woods, ‘The English Law on Adverse Possession: A Tale of Two Systems’ (2009) 38 Common Law World Review, 27–55, 38

[51] The Law Commission, ‘Law Com No 254, Land Registration for The Twenty-First Century a Consultative Document (HMSO 2001) paras 10.5–10.

[52] Una Woods, ‘The English Law on Adverse Possession: A Tale of Two Systems’ (2009) 38 Common Law World Review, 27–55, 38