Land Registration Act 2002 And Adverse Possession Law – A Critical Review

Essential Elements of Adverse Possession

1). 

Before the enforcement of the Land Registration Act 2002, any person, an unlawful tenant, to be specific, was able to acquire the right to be registered as owner of any registered estate if such person could establish that they were in adverse possession of the land for a minimum period of twelve years. The concept of adverse possession in respect of registered land has been intrinsically a significant matter of concern. The problems associated with the doctrine of adverse possession cannot be easily resolved using the concept of indefeasibility of title, which otherwise strengthens the land registration system in the United Kingdom. Since the uncertainties associated with ownership that might justify adverse possession of unregistered land does not apply to registered land as the legal ownership of such land is vested within the registered proprietor, this essay discusses about the significant changes that has been brought by Land Registration Act 2002. With the commencement of the, a new legal framework has been developed that is applicable to registered land which has made a successful claim of adverse possession in registered land, a challenging phenomenon.

The term ‘adverse possession’ may be described as a claim to ownership of land that arises from actual occupation of the land instead from any deed in favor of the claimant. It is usually not fair or practical to permit a person to make any claims of ownership only by entering into the land, hence, stringent rules have been formed with an objective to maintain a balance between the interests of general public and the interest of the land owners. There are certain essential elements of an adverse possession that must be established to bring a legal action.

Firstly, the claimant must satisfy that he has been in factual possession of the land for stipulated limitation period as was stipulated in Powell v McFarlane [1977]. It must imply that the claimant has an appropriate level of physical control over the land as was set out in J A Pye (Oxford) Ltd v Graham [2002]. Secondly, the claimant must have necessary intention to possess and not merely an intention to own or acquire the ownership of the land as was ruled in Buckinghamshire County Council v Moran [1988]. Lastly, the claimant had been in possession of the land without the consent of the paper title owner and such possession has continued for the required limitation period as was set out in Buckinghamshire County Council case.

Prior to the enforcement of the LRA 2002, the adverse possession principle was based on the limitation principle, which had similar results for unregistered and registered land. In respect of the unregistered land, the adverse possession for 12 years ceased the title of the paper owner and the common law estate of the squatter or the unlawful tenant is developed from the possession of such squatter on the land. Johnson (2016) states that even in case of registered land, if the squatter gave an application with respect to such land, it shall cease the title of the registered owner of the land paving the way to a new title of the squatter. However, to acquire a legal title, it is important to register but the squatter used to acquire the beneficial ownership over the land automatically under a statutory trust.

Adverse Possession in Registered Land

According to Bhandar (2016), this doctrine of adverse possession, in relation to the unregistered land, particularly, was perceived to be effective as it maintained a balance between the rights of the proprietors and the squatters.  On one hand, the rights of the landowners over the land was considered as old given that they made claims after possessing the land for 12 years. On the other hand, the rights of the squatter, given their long possession on the property were identified on the grounds of economic, morality and transactional competence. In the words of Birks (2014), the significance of squatters in resolving claims with respect to land ownership and the perceived investment, both economically and emotionally within the limitation period justifies the acquisition ownership rights claimed by the squatter after the expiry of the stipulated time.

According to Pawlowski (2017), while this perspective which justifies the acquiring of the land by the squatters have been existing in several common law jurisdictions including those jurisdictions that have developed many mature and advance title registration systems, major changes have been brought about in the land law with a shift in property law in England and Wales. The change in the land system in England and Wales focuses on the clear inappropriateness that is embedded within the principle of adverse possession in relation to the registered land.

 The enactment of the LRA 2002 is an outcome of such shift as it purports to make the ‘register’ element authoritative as the term ‘title’ is construed. The enactment of this legislation has been successful, as it has made significant changes to accomplish its purpose by transforming the essential factors based on which claims are made with respect to land under the English law from regarding ‘land possession’ as a significant ground to claim title to designating ‘registration’ as the most essential source of title. Qiao (2015) further asserts the significance of the LRA 2002 in establishing that the outcome of adopting a mature system of title registration unlike the former system that was prevalent prior to its enactment, must encompass bureaucratization of land ownership. Such an advanced and mature system shall move away the focus of the law from the situation that is related to the information pertaining to possession period on ‘the land’, which formed the basis of acquiring title to such land, to the information that is stipulated in the register.

The Law Commission was also of the opinion that the traditional operation and claims made under the adverse possession principle was unsatisfactory and unfair with respect to a registered land. The Commission considered the principle of limitation with respect to the land as unjustifiable with the title registration system. Thompson, Mark and Martin (2017) contradicts with the concept of acquiring of land title without registration that entitled the squatters to acquire title to the land and states that it defies the title registration system rendering it as ineffective. In order to render a registered title as effective, it is important to ensure that the parties registering their titles must be capable of relying on their registration in order to safeguard the ownership except under circumstances that are not only compelling but also are contradictory to the acquiring of ownership.

Traditional Justifications for Adverse Possession

This concern has led the Commission to undertake measures that would prevent squatters from acquiring the land title based on the adverse possession principle except under compelling and justified circumstances. Such justified and necessary circumstance includes the element of fairness or assurance that such land remains subjected to sale. Merrill (2015) further highlights that the enforcement of the LRA 2002 signifies the accomplishment of the Law Commission in maintaining a balance between several forms of claimant and the land proprietors making claims with respect to the adverse possession principle.

The Land Commission has set out four ‘traditional justifications’ that supported the adverse possession principle and, which strives to achieve one of the two objectives of salability and fairness. Firstly, the doctrine safeguards the old claims and prevents the land proprietors from not exercising their rights. Secondly, to ensure that in the absence of the landowner, the land retains its commercial worth and is not rendered as sterile. Thirdly, to prevent hardships of the claimants, squatters, in the event of mistake with respect to the possession on the land. Lastly, to ensure that conveyancing of the land is not hindered.

In regards to the above-mentioned justifications, the Law Commission answered them stating that the LRA 2002 has fulfilled the justifications set out in the clause (2) and (4). Emerich (2016) states that the act has been successful in ensuring that old claims are safeguarded and land proprietors are prevented from becoming inactive on their rights. This has been achieved as the statute ensures that in case of registration of title, adverse possession shall lead to deprivation of title only under circumstances, when the concerned matter is not mentioned in details in the register.

Further, the statute prevents several squatter from going through hardship under circumstances that have arisen accidentally. For instance, squatters who were exercising control over possession of the land under a reasonable mistake with respect to boundaries, their claims over the land shall be given more priority than to the claims of the land proprietor provided the conduct of such squatters is reasonable and fair. The LRA 2002 developed a legal infrastructure that is solely applicable to adverse possession claims made with respect to registered land and such new legal framework was stipulated in the Schedule 6 of the Act. Firstly, unlike traditional limitation period, adverse possession of registered land for 12 years of itself shall not affect the registered title of the landowner. However, after 10 years of adverse possession, the squatter will be entitled to make application for registering himself as the owner of the land in lieu of the proprietor of the land.

Thirdly, unlike prior to the enactment of this Act, the land owner shall be given an opportunity to oppose the application on the ground that the squatters have not completed 10 years of possession on the land. In the absence of such objection, the squatter shall become entitled to become the land proprietor of such concerned land. Fourthly, if the application is not subjected to opposition, the same shall be rejected provided such rejection will amount to unconscionable conduct on the ground of equity by estoppels for the registered proprietor. It will also not rejected  if the for any other justified reason, the squatter shall be entitled to become a land proprietor or the squatter was under adverse possession of any adjacent land to the concerned land but ha reasonable belief that they were in possession of the land in dispute , the application shall not be rejected. Lastly, if the squatter remains in possession of the land for two more years after the rejection of the application, he may be entitled to re-apply for the registration as proprietor. Further, section [8(1-3)] of the LRA 2002 restricts making application for registration based on adverse possession if the applicant is mentally disabled or an enemy. It restricts if the squatter is a defendant to a legal proceedings that is dealing with right to possession of a land or a judgment has been given against the squatter within last two years from the date of application.

 From the above discussion, it can be inferred that the objective of the LRA 2002, which was to deal with land in a simpler, cheaper and quicker way so that both title to registered land and the rights in as well as over the land shall become more secure, has been achieved. Further, the other purpose of the statute was also achieved, which was to ensure that land proprietors will not be subjected to threats related to their title unless the proprietors themselves are least interested in defending their ownership except under certain compelling circumstances. Furthermore, apart from addressing the issues related to title, the legal reforms made with respect to the law of adverse possession had a positive impact, which can be located in the cultural, economic and social contexts. The statute has successfully made the claims for adverse possession challenging and fairer as is evident, from the fact that it ensures that the occupation of the squatter of the land shall not be given effect unless he makes an application to the Land registry. The land proprietor shall be notified about such application, which he may oppose, and recover the land from squatters.

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Buckinghamshire County Council v Moran [1988] 86 LGR 472

Dunk, Thomas. “The Best Approach to Adverse Possession, and the Decline of Factual Possession.” The Conveyancer and Property Lawyer (2016).

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Land Registration Act 2002

Merrill, Thomas W. “Ownership and possession.” Law and Economics of Possession (2015): 1-39.

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