Adverse Possession and Land Registration

Introduction

Adverse possession, which is also referred to as squatter rights is when an individual takes the possession of a land, not belonging to them and as such, uses it for self-enjoyment and benefit in a way that the paper owner would utilize it, but then, excludes the paper owner’s title of the piece of the land (Cobb & Fox, 2007). This relates to both unregistered and registered land. Of importance to note, is that interests in lands, which cannot be registered as to be having separate titles are regarded as either overriding interests or interests that need register protection. In this regard, overriding interests are easily enforceable even when the register does not protect them and they purpose to bind a registered proprietor together with his transferee regardless of the fact that he is not aware of their existence (Bogusz, 2002). This then implies that overriding interests disputes the principle that a register ought to be the mirror of the title. In accordance with the writings of Cobb & Fox (2007), they point out that considering the provisions in the Land Registration Act 1925, overriding interests, as provided in section 70, consist of all encumbrances, rights, as well as interests that are not on the register but are pose as subjects to which dispositions take effect.

The grounds that reform these overriding interests are provided in the Land Registration Act 2002, which rose due to the criticism on the category of overriding interests that were initially provided in the Land Registration Act 1925. Notably, overriding interests resulted into uncertainly and have poses as subject to various reports that attempt to deal with several problems that are culminating the Land Registration Act 2002. Essentially, the LRA 2002’s main aim is to establish an electronically-based conveyancing system, thus making it possible to investigate titles online by use of minimum enquiries (Lees, 2013). Notably, the major obstacles that hinder this achievement is the presence of overriding interests.

Adding to electronic conveyancing, it is evident that the LRA 2002 adopted 4 approaches, aiding in handling problems that are linked to overriding interests and they are as follows:

• Firstly, is the abolition of some rights that could pose as overriding interests, including the liability of repairing a church chancel. Following the court’s decision in the case of Aston Cantlow Parochial Church Council v Wallbank, it was held that the repair of the church chancel contravened the European Convention on Human Rights and as such, it could not be enforced. Notably, the LRA 2002 as well affects the rights acquired by squatters, based on adverse possession. In this regard, it introduces a new adverse possession scheme for registered land, but it entails limited transitional provisions that aim at protecting the vested rights of squatters (Dixon, 2009).
• Secondly is the phasing out upon the depletion of 10 years of the existence of various categories of overriding interests that include the ancient franchises right, crown rights, embankments as well as sea walls rights, manorial rights, and rents (Dixon & Cooke, 2003).
• Thirdly is the narrowing down, as well as categorizing of the scope of previous classifications, remaining as overriding interests. Most importantly is the easements and profits, as provided in the Land Registration Act 1925, section 70 (1) (a) and the rights bestowed in individuals in actual occupation, in rent receipts and profits as provided in the Land Registration Act 1925, section 70 (1) (g) (Harpum & Bignell, 2002).
• Finally, is the requirement that in an instance where overriding interests are brought to light, they are entered on the register. Additionally, there is also a new requirement whereby an individual that applies for a registration should disclose any kind of overriding interests that are known to them (Harpum & Bignell, 2002).

The LRA 2002 introduced significant radical changes in law, where the title to a land that is occupied by a squatter implies that the land has been registered on the registration system. Moreover, where the occupied land (by a squatter) is not registered, the initial laws that were provided in the Limitation Act 1980 should still be applicable (Cobb & Fox, 2007). Putting into consideration the 1980 Act, the limitation period for recovery of land actions is 12 years. In this regard, in an instance where the proceedings of recovering land for a specific squatter are not commenced upon the end of this given period, then the actions are barred and the squatter then obtains the land title (Bogusz, 2002). In the last recent decades, various instances were witnessed where land titles of considerable value were lost to their owners, owing to adverse possession. Whereas there was need to recognize a system where it is possible to obtain a possessory title, the law commission made a claim that justice was not served, in an instance where an individual could, due to tortious trespass acts, and on behalf of a land owner, come to acquire a piece of land whilst paying nothing in return. This made it clear that the initial law unduly favored squatters’ interest against those of land owners, and this is just amongst the reasons the Land Registration Act 2002, in order to redress the balance (Lees, 2013).

Notably, the 2002 Act does not purpose to change the fact that on the depletion of the 12 years of adverse possession, that the squatter may acquire the land title. However, it introduced a significant procedure whereby, after 10 years of adverse possession, the owner is given a warning that if he does not take significant steps of recovering the land, after a period of 2 years, he would lose his title and that the squatter would then be the registered proprietor (Dixon & Cooke, 2003).

Before considering the manner in which the LRA 2002 works, it is vital to consider what adverse possession is, owing to the fact that it is a requirement that considers unregistered land, as provided in both the 2002 Act as well as in the Limitation Act 1980 (Dixon & Cooke, 2003). In an instance where possesses a land and occupies it for a period of 12 years, then the law before LRA 2002 mandated that the title of the owner is barred, and as such, the squatter acquires the land title. However, should not be the case, in an instance where the squatter assumes possession when granted a lease (Harpum & Bignell, 2002). If the owner’s title has been barred for a period of 12 years, then the squatter having occupied the property must have been enforced without the authority of the owner and his possession was adverse. In order for land possession to be regarded as adverse, the squatter has to show that he is of possession (Dixon & Cooke, 2003). This implies that he must portray a level of physical control over the entire land, including the construction of a house, or utilization of the land for agricultural uses. In an instance where the squatter uses the land occasionally, this could constitute to land trespass and not possession thereof (Dixon, 2009).

A squatter using a land must exclude the land owner sufficiently. In the case of Bligh v Martin, it was held that the actions of the squatter failed to exclude the land owner sufficiently and that amounted to adverse possession (Harpum & Bignell, 2002). However, the squatter’s possession should not totally exclude the owner. In the case of Fowley Marine (Emsworth) Ltd v Gafford, the actions of the squatter were regarded to be sufficiently exclusive, as to be constituting the possession of the entire creek. Enclosure of a land is what demonstrates the evidence of the existence of adverse possession. However, it is neither a prerequisite nor conclusive evidence (Dixon & Cooke, 2003). Furthermore, a squatter should not have to portray that he is in control of physical possession of the entire land. Although, it is not regarded as sufficient for him to be entitled to adverse possession or various acts that are done on/over/ or even under the piece of land. In addition to showing a factual possession, a squatter should be obligated to show a significant intention to take possession from the beginning to the period of limitation (Harpum & Bignell, 2002).

Conclusion

Overall, it is evident that the LRA 2002 has purposed to reduce various circumstances whereby overriding interests can exist. Notably, the acting policy behind this Act is that interests should have the overriding status only in an instance where the protection against purchasers is needed (Dixon & Cooke, 2003). With the introduction of electronic conveyancing, it is evident that the circumstances by which overriding interests arise are significantly reduced, owing to the fact that expressly created rights can only be established via simultaneous registration. The explanations in this paper make it clear and evident that the Land Registration Act 2002 has significantly reformed the law of adverse possession, owing to the fact that it represents a fair balance between the interests of land owners and those that are in possession of the property.

Bibliography

Cases

• Aston Cantlow Parochial Church Council v Wallbank [2003] UKHL 37
• Bligh v Martin [1968] 1 All ER 1157
• Fowley Marine (Emsworth) Ltd v Gafford [1968] 2 QB 618

Statues

• European Convention on Human Rights
• Land Registration Act 1925, s. 70 (1) (a)
• Land Registration Act 1925, s. 70 (1) (g)
• Land Registration Act 2002
• Limitation Act 1980
• Registration Act 1925 s70

Books and journals

• Bogusz, B. (2002). Bringing Land Registration into the Twenty-First Century. The Land Registration Act 2002. The Modern Law Review, 65(4), 556-567.
• Cobb, N., & Fox, L. (2007). Living outside the system? The (im) morality of urban squatting after the Land Registration Act 2002. Legal Studies, 27(2), 236-260.
• Dixon, M. (2009). Priorities under the Land Registration Act 2002. LQR, 125, 401-408.
• Dixon, M., & Cooke, E. (2003). Proprietary estoppel and formalities in land law and the Land Registration Act 2002: a theory of unconscionability. Modern studies in property law. (Oxford: Hart, 2003) vol, 2.
• Harpum, C., & Bignell, J. (2002). Registered Land, the New Law: A Guide to the Land Registration Act 2002. Jordans Pub.
• Lees, E. (2013). Title by Registration: Rectification, Indemnity and Mistake and the Land Registration Act 2002. The Modern Law Review, 76(1), 62-82.