6/11/24, 8:35 PM Adverse possession
Q.2
The approach the Land Registration Act 2002 takes to determining the
priority of pre-existing rights over land where the legal title to it is sold
represents an improvement on the comparable approach taken by
unregistered land.’
Discuss.
Q3. The scheme for adverse possession in registered land, contained in schedule
6 to the LRA 2002,... reflects a general principle that registration is the only
means of acquiring title to registered land.’ (Law Commission (2018) Report
Updating Land Registration. (LC380) (Para. 17.3).)
Critically comment on this statement and in your answer consider some of the
changes to the law on acquiring title by adverse possession proposed by the Law
Commission in this Report.
Q.4
‘The Land Registration Act 2002 has rightly reduced the possibility that the
registered owner will be displaced by an adverse possessor. However, as adverse
possession has not been abolished, the courts could, and should, interpret the
elements required to make a claim in ways that favour the true owner.’
Discuss.
Q.7
To what extent does the Land Registration Act 2002 represent a fundamental and
justifiable shift in the law’s approach to adverse possession?
According to the Law Commission's Report, which was cited in the question,
"registration is the only way to acquire title to registered land" because the Land
Registration Act of 2002 (LRA 2002), which contains the relevant law, is
concerned with registered land.
As opposed to unregistered title to land, this is clearly not the case. Although
both registered and unregistered titles fall under the definition of possession
(actual having possession of the land with the intent to exclude others), there are
differences when the adverse possessor has met these criteria and actually
wishes to establish his or her claim to the property.
The adverse possessor must have 12 years of adverse possession under section
15(1) of the Limitation Act 1980 before the paper owner's title can be
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extinguished (referred to section 17 of the Limitation Act 1980), and the squatter
gains a new title. If the title is unregistered, however, the adverse possessor
must first have 12 years of adverse possession. As a result, where the paper
owner has shown no interest in the land and possibly has no idea that it is theirs,
they will abruptly lose ownership. A case that serves as an example is Ellis v.
Lambeth LBC (1999), in which the council forfeited title after the squatter claimed
ownership since it had been in occupancy for more than 14 years without being
informed.
Since the idea of title being gained by registration indicates a process rather than
an immediate termination of the paper owner's title as with unregistered land, this
could not occur when title is registered. The crucial aspect is that, as stated in the
Law Commission's (1998) Consultation Paper, Land Registration for the Twenty-
first Century, No. 254: "Where title is registered, the basis of title is primarily
registration then possession" (Para. 10.11). The situation is obviously reversed
for unregistered land, where title is obtained by possession before the possessor
submits an application for registration.
The LRA 2002 introduced a comprehensive procedure for the acquisition of title
to registered land through adverse possession. This legislation has significantly
increased the level of difficulty in obtaining title through this method. Moreover,
Schedule 6 of the LRA 2002 includes various safeguards that aim to protect the
rights of the registered owner. The individual occupying the property without legal
ownership, sometimes referred to as a squatter, has the opportunity to seek
registration after a period of 10 years, in contrast to the 12-year requirement for
unregistered land. Nevertheless, the perceived reduction in the duration needed
is misleading. The squatter has the right to be registered if neither the registered
proprietor nor any other party supplied with notice, such as a charge, objects to
the application by serving a counter-notice. Nevertheless, the objection can be
regarded as a mere veto, as it does not necessitate justification. Consequently,
there exists no basis for a registered proprietor to forfeit their title, as long as they
receive the application.
In the event that the proprietor of the paper exercises their veto power, they are
granted a two-year period during which they may proceed with the eviction of the
individual occupying the property, unless one of the three scenarios outlined in
Paragraph 5 of Schedule 6 to the LRA 2002 is applicable. If such circumstances
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