do the changes brought about by the land registration act 2002, with particular focus on adverse...

8/2/2019 Do the Changes Brought About by the Land Registration Act 2002, With Particular Focus on Adverse Possession, Do

1/15

Land Registration Act 2002

Q - Do the changes brought about by the Land Registration Act 2002,

with particular focus on adverse possession, do enough to protect

purchasers from overriding interests?

Interests in land that cannot be registered as separate titles are either

overriding interests or interests which need protection on the register.

Overriding interests are enforceable without being protected on the register

and bind a registered proprietor and his transferee despite the fact he does not

know of their existence. This means overriding interests effectively detract

from the principle that the register should be a mirror of the title. Under the old

regime of the Land Registration Act 1925, overriding interests were listed in

section 70 (1) which states these to be all incumbrances, interests, rights, and

power not entered on the register but subject to which dispositions are to take

effect.

If however, an overriding interest appears on the register (as in Re Dance Way,

West Town, Hayling Island) then its protection under this category is

superfluous. It will cease to bind as an overriding interest and its protection is

then the protection of a minor interest on the register.

The grounds for reform of overriding interests contained in the Land

Registration Act 2002 (LRA 2002), arose as a result of criticism of the

category of overriding interests under the Land Registration Act 1925.

Overriding interests caused uncertainty and have been the subject of several

reports attempting to deal with the problems, culminating in the LRA 2002.

As illustrated in Overseas Investment Services Ltd v Sim Cobuild Construction

Ltd judicial opinion was also one for change. In this case Peter Gibson LJ stated,

as overriding interests constitute an exception [to the mirror of title principle]

the court should in my opinion, bet be astute to give a wide meaning to any

item constituting an overriding interest.

The LRA 2002 aims to create an electronically based conveyancing system

where it will be possible to investigate title online with minimum additional

enquiries. A major obstacle to achieving this is the existence of overriding

interests.. The LRA 2002 has therefore reduced the circumstances in which

overriding interests can exist. The policy behind the Act is that interests should

only have overriding status where protection against buyers is needed, but

where it is neither reasonable to expect nor sensible to require any entry on

the register. With the advent of electronic conveyancing the circumstances in

which overriding interests can arise will be reduced. This is because expressly

created rights will only be created through simultaneous registration.


2/15

In addition to electronic conveyancing, the LRA 2002 adopts four

approaches for handling the problems associated with overriding

interests, which are:

1. The abolition of certain rights which can exist as overriding interests,

including the liability to repair the chancel of a church. Abolition follows the

Court of Appeal decision in Aston Cantlow Parochial Church Council v Wallbank

which held that chancel repair liability contravenes the European Convention

on Human Rights and is therefore unenforceable. The LRA 2002 also affects the

rights of those acquired by squatters under adverse possession. It introduces

an entirely new scheme of adverse possession for registered land, although

there are limited transitional provisions to protect squatters vested rights. For

three years after the Act comes into force (ie the 12 year limitation period had

expired) will continue to have overriding interest even if he or she is not in

actual occupation. The squatter will have three years to protect their positionby registering their rights Furthermore, on first registration the legal estate is

vested in the first registered proprietor subject to interests acquired under the

Limitation Act 1980 of which he or she has notice at the time of registration.

2. The phasing out after ten years of several existing categories of

overriding interest, including ancient rights of franchises, manorial rights,

crown rents, rights concerning embankments and sea walls, and corn rents

3. The narrowing down and clarification of the scope of some previous

categories that remain as overriding interests. The most important being

easements and profits under the old s. 70 (1) (a) of the Land Registration Act1925 and the rights of persons in actual occupation or in receipt of rents and

profits under the old s. 70 (1) (g) of the 1925 Act

4. A requirement that when overriding interests come to light they are, as

far as possible, entered on the register. In addition, a new requirement exists

where a person who applies for registration, must disclose any overriding

interests known to them.

The LRA 2002 provides for the continued existence of 14 categories of

overriding interest and further creates a new category, that of the Public-

Private Partnership (PPP) lease. Five of the 14 categories will disappear afterten years. In the case of legal easements and profits, the rights of persons in

actual occupation and short leases (seven years or less), the substantive

requirements for what amounts to an overriding interest will be different

depending on whether it is a first registration or a subsequent registrable

disposition for valuable consideration. The LRA 2002 recognises this distinction

by listing those interests which override first registration in schedule 1 and

those interests which override registered dispositions in schedule 3.


3/15

Unregistered interests which override first registration

As discussed above, these are set out in schedule 1 of the LRA 2002. When a

person becomes the first registered proprietor of land on first registration, they

take the estate subject to certain interests, including interests the burden of

which is entered on the register (s 11 (4) (a)) and interests the burden of which

is not entered on the register but which fall within any of the paragraphs of

Schedule 1 (s 11 (4) (b) overriding interests).

Short leases

Subject to exceptions (discussed below) a leasehold estate that has been

granted for a term not exceeding seven years from the date of grant, overrides

first registration. This replicates the position under the Land Registration Act

1925 s. 70 (1)(k) except for the reduction in the duration of short leases from

21 years to 7. It is also likely in the future, that the Lord Chancellor will reduce

the period to 3 years. The reason for excluding short leases from having their

own registered titles is to prevent the register from becoming cluttered with

leases that are subject to expire shortly. Instead, a notice of the short lease

should be entered on the register of the title out of which it has been granted.

There are however, exceptions to this rule and the following types of leases are

incapable of being considered overriding interests, even in instances where

they are for 7 years of less, and must be registered with their own titles:

(a) a reversionary lease granted out of unregistered land to take effect in

possession more than three months after the date of the grant of the lease

(this is new and they are excluded because they may be difficult to discover)

(b) a lease granted out of an unregistered legal estate under the right to

buy provisions of Pt V of the Housing Act 1985 (there is no change here from

the previous law)

(c) a lease granted by a private sector landlord out of an unregistered legal

estate to a person who was formally a secure tenant and has a preserved right

to buy under the Housing Act 1985 (again there is no change here from the

previous law)

Interests of persons in actual occupation

The discussion which follows relates to the overriding status of occupiers

rights on first registration. Occupiers rights in relation to registered

dispositions will be considered later in this essay.


4/15

The interests of persons in actual occupation have historically been the most

problematic of all overriding interests resulting in considerable amounts of

litigation. Prior to the LRA 2002, the relevant section of the 1925 Land

Registration Act was s.70(1)(g) which read, the rights of every person in

actual occupation of the land or in receipt of rents or profits thereof, save

where enquiry is made of such person and the rights are not disclosed.

The LRA 2002 deals with unregistered interests which override first registration

in Schedule 1, paragraph 2, which defines the interests of persons in actual

occupation as An interest belonging to a person in actual occupation, so far as

relating to land of which he is in actual occupation except for an interest under

a settlement under the Settled Land Act 1925.

The Law Commission concluded in its report that it remained necessary to

protect the rights of those in actual occupation. This is predicated assuming

such persons will often not have appreciated the need to take further steps to

protect their rights against purchasers by lodging a caution against firstregistration. This is especially the case for informally created rights (for

example a matrimonial homes right of occupation which may be protected by a

class F land charge registration)

It should be noted that the LRA 2002, unlike the old law, does not give

overriding status to those who are only in receipt of rents and profits. This is a

change from s 70 (1) (g) and was made with the idea that it is often very

difficult for buyers to discover the existence of an intermediate landlord simply

from an inspection of the property.

The new law maintains the exception that a beneficiary under a settlementunder the Settled Land Act 1925 is excluded from overriding status. Despite

the fact this retention goes against the Law Commissions original

recommendation, it was decided that the exception was sensible as since the

Trusts of Land and Appointment of Trustees Act 1996 came into force, such

settlements can no longer be created.

It is important to consider the wording of Schedule 1 paragraph 2 which states,

so far as relating to land of which he is in actual occupation. This is a new

addition by the 2002 Act and means that where someone is in actual

occupation of part of the land but have rights over the whole land purchased,

their rights protected by actual occupation are confined to the part which theyoccupy.

A further change in the law, in relation to occupiers rights on first registration,

is the absence of the qualification in s70 (1) (g) which says, save where

enquiry is made of such person and the rights are not disclosed. These words

are excluded from the 2002 Act because they are no longer relevant to

overriding interests on first registration. Whether a purchaser has made


5/15

enquiries of a person in actual occupation is irrelevant on first registration

because the question of whether or not the first registered proprietor is bound

by the rights of an occupier will have been decided at an earlier stage under

the unregistered conveyancing rules. That is to say, on completion when the

legal title becomes vested in the purchases. However, it should be noted that

the qualification is retained for registered dispositions.

Legal easements and profits a prendre

Under the old law, equitable easements which were openly exercised and

enjoyed by the dominant owner as appurtenant to their land could take effect,

on first registration, as overriding interests. Under the new law, only legal

easements and profits a prendre can do so. Accordingly, in preventing

unregistered equitable easements from acquiring overriding status the decision

in Celsteel is reversed. This follows the underlying principle of the new Act that

rights expressly created over land should be completed by registration. It

further reflects the established view in unregistered land that equitable

easements should only bind a purchaser if they are registered as Class D (iii)

land charges under the Land Charges Act 1972. It is hoped that in the future,

few legal easements and profits will qualify as overriding interests. In fact the

LRA 2002 contains rule-making powers to ensure that, as far as possible,

overriding interests are disclosed to the registrar on first registration to enable

them to be noted on the register.

Local Land Charges

This type of overriding interest has not been changed by the new Act. Schedule

1, paragraph 6 of the 2002 Act replicates s. 70(1) (i) of the Land Registration

Act 1925, by allowing a local land charge to override first registration. Again

these are referred to for the sake of completeness and will not be discussed

further.

Mines and Minerals

No change has been made by the new Act to this category of overriding

interests which is again referred to for the sake of completeness. The

overriding status of some mining and mineral rights previously found in s 70

(1) (l) and (m) of the Land Registration Act 1925 are today found under

Schedule 1, paragraphs 7-9 of the Land Registration Act 2002. Many of these

rights would be impossible to register in light of their extent and complexity as

well as the prohibitive cost of preparing plans for them. The Law Commission


6/15

accordingly thought it was best in this instance to preserve their overriding

status.

Miscellaneous interests (Minor Interests)

There are five categories of overriding interests that have been grouped

together under a miscellaneous heading under Schedule 1 paragraphs 10-14 of

the 2002 Act. These are rare, of ancient origins and not always easy to

discover. They have maintained their overriding interest in the same way as

under the Land Registration Act 1925 and are as follows, a franchise, a

manorial right, a right to rent which was reserved to the Crown on the granting

of any freehold estate (whether or not the right continues to be vested in the

Crown), a non-statutory right n relation to an embankment or sea or river wall,

and a right to payment in lieu of tithe (corn rents).

Maintaining these miscellaneous items as overriding interests had been

thought unpopular, but the Law Commission concluded that to abolish their

overriding status immediately, might risk a contravention of the right to

property under the European Convention on Human Rights. Therefore the 2002

Act provides that these rights will cease to have overriding status ten years

after the Act comes into force. In the meantime, s117 of the Act allows persons

with the benefit of those rights to protect them during the ten-year period

without charge. This can be achieved by entering a caution against first

registration (for unregistered land) or an entry on the register (for registered

land). If the interests are protected in this way, any intending buyer of the

subject property will be made aware of them.

Unregistered Interests which override Registered Dispositions

A registered disposition for valuable consideration of a registered estate or a

registered charge takes subject to those overriding interests affecting the

estate or charge that are listed in Schedule 3. 12 out of those 15 interests are

the same as those which override first registration, which have been

considered above. The three categories that are different from those that apply

on first registration are, short leases, interests of persons in actual occupation

and easements and profits.

Short leases

Three exceptions were mentioned in relation to short leases that do not qualify

as overriding interests. There are a further five exceptions in relation to


7/15

registered dispositions. All five must be registered in their own right in light of

the fact they are registrable dispositions granted out of a registered estate and

therefore cannot be overriding interests. These are, firstly reversionary leases

granted to take effect in possession more than three months after the date of

the grant of the lease, secondly leases under which the right to possession is

discontinuous, thirdly leases granted in pursuance of the right to buyprovisions of Pt V of the Housing Act 1985, fourthly leases granted by a private

sector landlord to a person who was formerly a secure tenant and has a

preserved right to buy and lastly leases of a franchise manor.

Transitional Arrangements

Transitional arrangements are in place for existing short leases that are

overriding interests under the old law. Paragraph 12 of Schedule 12 provides

that leases that had been previously granted for a term of more than seven but

not more than 21 years shall continue to remain as overriding interests after

the 2002 Act is in force. However, any assignment of these leases will trigger

compulsory registration if the term has more than seven years to run at the

time of the assignments.

Interests of persons in actual occupation

The guiding principles of reform to this area of law, is that expressly crated

rights that are substantively registrable should be registered and no longer

enjoy the protection of being an overriding interest. In this instance the rights

concerned are those that arise informally in favour of those persons who do not

always appreciate there is a need to register their rights. The Law Commission

stated in their Consultative Document that, it is unreasonable to expect all

encumbrances to register their rights, particularly where those rights arise

informally, under (say) a constructive trust or by estoppel. The law

pragmatically recognises that some rights can be created informally, and to

require there registration would defeat the sound policy that underlies their

recognition. Furthermore, when people occupy land they are often unlikely to

appreciate the need to take the formal step of registering any rights that they

have in it. They will probably regard their occupation as the only necessaryprotection. The retention of this category of overriding interest is justified

because this is a very clear case where protection against purchases is needed

but where it is not reasonable to expect or not sensible to require any entry on

the register.

Paragraph 2 of Schedule 3 provide that an interest belonging at the time of a

registered disposition to someone who is in actual occupation is an overriding


8/15

interest, only so far as it relates to land of which they are in actual occupation.

Furthermore, there is also an important qualification to this general principle in

that actual occupation will only protect a persons occupation so far as it

relates to land of which that person is in actual occupation. Any rights that

particular person has over other registered land must be protected by an

appropriate entry in the register for that title. This reverses the Court of Appealdecision in Ferrishurst Ltd v Wallcite Ltd where an overriding interest was held

to extend to the whole of a registered title and not merely the part in

occupation.

There are however, four exceptions to this principle. These are, firstly interests

under a settlement under the Settled Land Act 1925, secondly interests of a

person of whom inquiry was made prior to the disposition and who failed to

disclose the right when they could reasonably have been expected to do so

(note this is very similar to the working of s. 70 (1) (g) of the Land Registration

Act 1925. Thirdly is a new and important exception relating to the rights of

persons whose occupation is not apparent, in which case an interest will not be

protected as an overriding interest if:

(i) it belongs to a person whose occupation would not have been obvious

on a reasonably careful inspection of the land at the time of the disposition,

and

(ii) the person to whom the disposition is made does not have actual

knowledge at that time.

It is important to note that the Law Commission emphasised three important

points in relation to this exception. Firstly that it is the occupiers occupationthat must be apparent and not their interest. Secondly the test is not one of

constructive notice of the occupation, but rather it is the one applicable to an

intending purchaser, that occupation should be obvious on any reasonably

careful inspection of the land. Thirdly the Law Commission emphasised that

even if a persons occupation is not apparent, the exception does not apply

where a purchaser has actual knowledge of the occupation.

The fourth and final exception is that of a lease that has been granted to take

effect in possession more than three months after the grant and which has not

taken effect in possession at the time of the disposition. This is rare and is a

corollary of the requirement to register reversionary leases that are to takeeffect in possession more than three months after their grant.

As referred to previously, those who are not in actual occupation but are in

receipt of rents and profits are no longer given overriding status. A transitional

period does provide that an interest which, came into being immediately

before the coming into force of the 2002 Act, and was an overriding interest

under s. 70 (1) (g) of the Land Registration Act 1925 by virtue of a persons


9/15

receipt of rent and profits, continues to be so for the purposes of Schedule 3. If

however, the person thereafter ceases to be in receipt of rent and profits, the

interest will cease to be overriding.

Legal easements and Profits a Prendre

Easements and profits concerned the Law Commission who were determined

to restrict the circumstances in which they could acquire overriding status. This

is because purchasers of registered land often find it difficult to discover

easements and profits that are not noted on the register. This is further

compounded by the fact that non users of easements or profits, even after

many years, fail to raise any presumption of abandonment. Accordingly the

Law Commission felt it was wrong in principle that easements and profits that

were expressly created, should take effect as overriding interests and believed

they ought to be completed by registration.

This has meant that reforms in this area have been extensive. The LRA 2002

provides that no easements or profits expressly granted or reserved out of

registered land after the Act comes into force can take effect as overriding

interests. This is because these rights do not take effect at law until they have

been registered. This is in line with the aim of the 2002 Act to ensure the

possibility of investigating title almost entirely on-line with only minimal

additional enquiries.

Furthermore, no equitable easements or profits, no matter how they were

created, are capable of overriding a registered disposition, as noted reversing

the decision in Celsteel. It follows that only a legal easement or profit may be

overriding in relation to a registered disposition. Furthermore, since the Act has

been in force, the only legal easements and profits capable of being overriding

interests are, those already in existence (that have not been registered), those

arising by prescription (which has not been reformed by the LRA 2002) and

those arising by implied grant or reservation (for example under s 62 of the

Law of Property Act 1925)

Furthermore, so as to circumvent the non-abandonment presumption under

paragraph 3.1 of Schedule 3, some categories of legal easements and profit

have been totally excluded from overriding status. These are not capable ofbeing overriding interests unless they have either been registered under the

Commons Registration Act 1965 or have been exercised within one year prior

to the registered disposition in question.

It is important to note that a purchaser of registered land for valuable

consideration will only be bound by an easement or profit as an overriding

interest if the same is registered under the Commons Registration Act 1965, or


10/15

the purchaser knows about the said right or it is so obvious that no seller would

be obliged to disclose it or it has been exercised within one year before the

purchase date.

Adverse Possession

The LRA2002 made radical changes in the law where the title to land occupied

by a squatter has been registered under the system of registration. Where land

occupied by a squatter has not been registered, the pre-existing laws, as

contained in the Limitation Act 1980, continues to apply. Under the 1980 Act,

the period of limitation for actions for the recovery of land is 12 years. If

proceedings to recover land from a squatter have not commenced by the end

of this period, the action becomes statute barred and the squatter obtains title

to the land.

Over the last few decades, instances occurred where title to land of

considerable value was lost to its owner as a result of adverse possession.

Whilst the need was recognised for retaining a system where it was possible

for a good possessory title to be obtained, the Law Commission expressed the

fact that justice was not being served when any person could, as a result of

tortious acts of trespass, together with an oversight or act of tolerance on

behalf of the landowner, come to acquire land worth a considerable amount

whilst having paid nothing in return. It was felt that the law unduly favoured

the interests of squatters against those of the owner of the land and it was one

of the purposes of the Land Registration Act 2002 to seek to redress the

balance.

The LRA 2002 does not change the fact that after 12 years adverse

possession, a squatter may acquire title to the land. The Act does however,

introduce a procedure where, after 10 years adverse possession, the owner is

warned that, unless he takes steps to recover the land, after a further two

years his title will be lost and the squatter will become the registered

proprietor.

Prior to considering how the 2002 Act operates, it is important to first consider

what adverse possession actually is, particularly in light of the fact that it is a

requirement in the case of unregistered land under both the Limitation Act1980 and the 2002 Act.

If a squatter takes possession of land and retains it for 12 years, then as per

the law prior to the LRA 2002, the owners title is barred and the squatter

acquires a good title. This is not the case if the squatter takes possession of

the land by being granted a lease (or a licence). If the owners title is to be

barred after 12 years, the squatters occupation must have been without the


11/15

owners authority, his possession must have been adverse.

For possession of land to amount to adverse possession, the squatter must

show the fact of his possession. This means he must show an appropriate

degree of physical control over the land. This would include the building of a

house, or the use of the land for agricultural purposes. If a squatter only makesoccasional use of the land, this may constitute trespasses of land but not

possession thereof.

A squatters use of the land must sufficiently exclude the owner. In Bligh v

Martin where the squatter turned heifers on to the owners land to graze, it was

held that this action did not exclude the owner sufficiently so as to amount to

adverse possession. On the other hand, a squatters possession need not

necessarily be such as to totally exclude the owner. In Fowley Marine

(Emsworth) Ltd v Gafford a squatter laid buoys in the owners creek and made

a charge to those using the moorings. In this case, this action was held to be

sufficiently exclusive so as to constitute possession of the creek by thesquatter.

It is however, enclosure of the land that demonstrates the strongest possible

evidence of adverse possession. It is not however, a prerequisite or conclusive

evidence thereof. Furthermore, a squatter does not have to show he has taken

physical possession of the whole land, although it is not sufficient to claim

adverse possession for acts done on, over or under the land. As well as

showing the fact of possession, a squatter must also show an intention from

the start of the limitation period to take possession.

So far this essay has referred to adverse possession where the ownerabandons the land and the squatter enters into possession of it. However,

adverse possession can also happen:

i. The squatter drives the owner out of possession and takes possession

himself

ii. The owner fails to take possession of and the squatter takes possession

iii. Where the owner gives the squatter a licence to occupy the land,

subsequently the licence either expirers or is revoked and the squatter remains

in possession

iv. The squatter holds a determinable fee simple and the owner the

possibility of reverter, the determining event occurs and the Squatter remains

in possession.

v. The owner grants the squatter a lease of the land, the lease expires and

the squatter remains on the land without the owners consent (although in this

situation the squatter is a tenant at sufferance his possession is still adverse)


12/15

The new process

Under Part 9 of the LRA 2002 where the title to land has been registered there

is no period (as provided for by s 15 of the Limitation Act 1980 in the cases of

unregistered land) at the expiry of which a landowner ceases to be able to

bring proceedings seeking to recover land from a squatter. This means that

where land is registered, a landowners title is never extinguished by his right

to bring proceedings being statute-barred by the expiry of a limitation period.

Rather in registered land, the 2002 Act introduces new arrangements as

follows:

Say the squatter is in adverse possession of the owners land for a period of 10

years, adverse possession having the same meaning as where the title to the

land is not registered. At any time after the expiry of the 10 year period the

squatter may provided that no proceedings have been commended against

him in which the owner asserts his title to the land and provided that no

judgment for possession of the land has been given against him in the previous

two years, apply to the Registrar to be registered as proprietor of the land.

The registrar notifies the owner of the application which the owner may within

a period prescribed by the rules object to the application challenging the

squatter to show either that it would be unconscionable because of an equity

by estoppel for the registered proprietor to seek to dispossess him and the

circumstances are such that he ought to be registered as the proprietor (for

example where the squatter has mistakenly build on the owners land and the

owner takes no steps to disillusion him), or he is for some other reason entitled

to be registered as the proprietor of the estate, or that the land occupied by

him is adjacent to other land he owns (where the exact line of the boundary

between the two has not been determined by a procedure prescribed in rules

made under the Act, for at least 10 years of the period of adverse possession

ending on the date of application he (or any predecessor in title of his)

reasonably believed that the land he has occupied belonged to him and that

the estate to which the application relates was registered more than one year

prior to the date of the application.)

Should the squatter demonstrate that one of the circumstances above applies,he is entitled to be registered as proprietor of the land. Furthermore, if the

owner fails to issue a challenge by the end of the period prescribed, the

squatter is entitled to be registered as proprietor of the land. If the owner

issues the challenge and the squatter fails to demonstrate that one of the

circumstances applies, his application must be rejected.

If however, at the end of two years from the date of the squatters application


13/15

he has not been evicted from the land by court order and no judgment for

possession has been made against him and the owner has not commenced

proceedings to recover the land, the squatter may reapply to be registered as

proprietor of the land. On receipt of such application, the Registrar must

register the squatter as proprietor of the land.

So if the squatter is in adverse possession for 10 years and applies to be

registered as proprietor and after being warned the owner does not seek to

recover the land, after a further 2 years the squatter is registered as

proprietor, in the same way as under the unregistered system, where after 12

years adverse possession, the squatter acquires good title. However, whilst

the effect may be the same, the route is different. Under the unregistered

system, the squatter becomes owner of the land by virtue of the fact that the

owners title is statute barred, resulting in that he is unable to bring

proceedings to recover the land. Under the registered system, the squatter

becomes owner of the land by virtue of the provision requiring the Registrar to

register him as proprietor. So under the registered system, if a squatter is in

adverse possession of the owners land for 30 years, the owners title is as

valid as it was prior to the squatter taking over the land. But at the end of 30

years, the squatter will have been on the land for a period of 10 years and is

entitled to apply to be registered as proprietor of the land, commencing the

procedure set out above. The effect of the Act has accordingly been described

as making registered land virtually squatter proof.

The question remains whether it is appropriate for the law on adverse

possession to differ so much between registered and unregistered. The

government estimates that 20% of title remains unregistered in which case it

might be preferable to postpone the changes until the aim of total registration

is closer to being achieved.

The boundary mistake ground for registration of the squatter after ten years

despite the objection of the neighbouring owner, is likely to be the one met

most commonly. However, it may be less helpful than it appears. It requires

the squatter to have reasonably believed they owned the land. This belief must

have been held for at least 10 years ending on the date of the squatters

application to be registered. It is argued by Slessenger that the latter

requirement cannot be meant literally as the making of the application pre-

supposes the squatter to have discovered that they do not own the land.Furthermore, there is a wider point to be made in that can the buyer spot that

the seller was occupying more land on the boundary than they had title to, and

obtained a statutory declaration as to the sellers adverse possession for

example the last nine years, then claim one year later to have had a

reasonable belief they owned the land in question? Does this mean that any

period of occupation by the buyer will enable them to make a claim given that

on their purchase they were told they were not acquiring title to the land in


14/15

question? If squatters can only use their predecessors occupation toward the

10 year period if they have not spotted the problem on purchase, that will

encourage sloppy conveyancing and surveying and prevent buyers from

getting the evidence of adverse possession at the most appropriate time. The

result is likely to be any small areas of land on the wrong side of a physical

boundary which are owned by one person but used and occupied by another,where title can never be regularised.

Conclusion

It is interesting at this stage to consider the challenge to the concept of

adverse possession launched in the European Court of Human Rights on 8 June

2004, in J A Pye (Oxford) Ltd and another v UK, Pye. On this occasion, Pye was

given permission to challenge the doctrine of adverse possession on the basis

that it is incompatible with Article 1 of Protocol No 1 to the European

Convention on Human Rights.

The government however contends that there is legitimate public interest in

preventing stale claims being brought before the court and that the reality of

unopposed occupation of land and its legal ownership coincide. It is not the

role of the state to protect in this case a professional property developer from

the consequences of its own inaction.

In contrast, Pye argued that it is the legislation and not any inaction by the

company that resulted in the loss of the land, and that the legislation breaches

Article 1 as it deprived the company of its possessions contrary to the public

interest and without provision for compensation to be paid. Furthermore,

where land is registered, there is no uncertainty of ownership and nojustification for depriving someone of their title simply because they have not

objected to somebody else using their land. There is no public benefit in

transferring land to persons in adverse possession.

In the 2002 House of Lords decision in Pye, the balance shifted from owners to

squatters, who have arguably benefited from a more relaxed test for

establishing adverse possession. Accordingly the introduction of the LRA 2002,

marks a significant move in favour of landowners and it is likely that

landowners will take advantage of the tougher regime for registered land by

voluntarily registering their titles. The outcome of the challenge in Europe is

awaited. The arguments in the case go to the very heart of the doctrine ofadverse possession and the consequences of a successful challenge would be

far-reaching.

It is clear that the changes brought in by the 2002 Act, particularly in relation

to adverse possession go a long way in strengthening an owners position as

well as potential buyers by tightening the rope around overriding interests in

general, doing away with several classes thereof and making them more


15/15

noticeable to potential purchasers in registration. However, as discussed,

overriding interests should not be completely abolished (they are necessary in

the case of informal interests such as matrimonial homes right), but rather an

equal balance between those holders of interests and purchases should be

found. Notably the registration of interests goes a long way in balancing these

parties rights.

do the changes brought about by the land registration act 2002, with particular focus on adverse...

Documents