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A recent judgement made by the Upper Tribunal (Lands Chamber) in Dowse [2020]^1 highlighted that the Land Registration Act (LRA) 2002^2 has severely limited the right to make a claim for adverse possession. However, the question shows the contrary; suggesting the introduction of LRA 2002 has provided even greater rights to squatters. The mechanism of adverse possession was long established in English land law and practiced till date.^3 Simply, this principle allows a squatter to acquire a better title to a land that has been abandoned by the paper owner.^4 The question then suggested this principle should be abolished in its entirety. Thus, this study will briefly introduce adverse possession between registered and unregistered land; following the examination of adverse possession under the LRA 1925 and LRA 2002 ; and the arguments for and against the abolishment of adverse possession. This paper will ultimately submit that the LRA 2002 restricted the number of successful adverse possession claims and squatters are not given greater rights under LRA 2002. Further, the mechanism of adverse possession should not be ousted entirely but establish a more effective law to improve the utilization of adverse possession in English land law. A squatter acquiring title to unregistered land is governed by the Limitation Act 1980^5 , notably s.15^6 , 17^7 and Schedule 1^8. S.15 of the Act^9 exhaust the right of the owner to recover possession of the land once the squatter has been in adverse possession for 12 years. If the owner did not bring an action against the squatter to recover possession of the land, the owner’s title to the land will be extinguished and acquired by the squatter. In the event the title involved is registered land, there are two regimes that govern adverse possession. First, if a squatter can show adverse possession of registered land for a full period of 12 years before October 2003, their right to claim better title by way of adverse possession is referred to LRA 1925 ; having the same limitation period as in land of unregistered title. Secondly, if a squatter did not had possession of registered land continuously for 12 years before October 2003, the squatter is now subject to LRA 2002. (^1) Dowse and Another v City of Bradford Metropolitan District Council [2020] UKUT 202 (LC) (^2) Land Registration Act 2002 (^3) Martin Dixon, Modern Land Law (12th edn, Routledge 2021) (^4) ibid (^5) Limitation Act 1980 (^6) Limitation Act 1980, s 15 (^7) Limitation Act 1980, s 17 (^8) Limitation Act 1980, sch 1 (^9) Limitation Act 1980, s 15
To determine whether LRA 2002 provided greater rights for squatters, we must look at its predecessor – LRA 1925 , understanding the rights given by the provisions to squatters and paper owners. Readers should be noted that the LRA 1925 was largely repealed and updated in the LRA 2002. Adverse possession under LRA 1925 provides the same limitation period for registered and unregistered land. S.75(1)^10 of the Act provides that the Limitation Acts shall be applied to registered land in the same manner as unregistered land. The limitation Acts in question is directed at s.15(1) of the Limitation Act 1980^11 which provides 12 years of adverse possession of registered land will give the squatter a title to the land in dispute. When the squatter satisfies the 12 years requirement, he could apply to become the registered proprietor provided by s.75(2) of the 1925 Act.^12 The registered proprietor’s legal title will then be transferred to the squatter instead of being extinguished and the squatter obtained an independent legal title when it comes to unregistered land. In the meantime, the registered proprietor will hold the title of the land on trust for the squatter.^13 The LRA 2002 took effect on 13 October 2003 and repealed the LRA 1925 , but subject to transitional provisions.^14 These transitional provisions are responsible for preserving the old regime for claiming better title by way of adverse possession when the claim involves unregistered land and registered land where the right to be registered was acquired or completed 12 years of adverse possession before October 2003. For instance, when the land in dispute was registered; the squatter had been in possession of registered land for 12 years before October 2003; but he did not apply to become the registered proprietor before LRA 2002 took effect. This circumstance will make use of the transitional provision in Schedule 12 para 18(1) LRA 2002^15 , therefore the trust created in the squatter’s favour under s.75 LRA 1925 resume its operation. Thus, the squatter is still eligible to apply as the registered proprietor. The new regime under LRA 2002 introduced different directions for squatters who had not been in possession for 12 years by the effective date in relation to registered land. Unlike its (^10) Land Registration Act 1925, s 75(1) (^11) Limitation Act 1980, s 15(1) (^12) Limitation Act 1980, s 75(2) (^13) Limitation Act 1980, s 75(1) (^14) Land Registration Act 2002 (^15) Land Registration Act 2002, sch 12 para 18(1)
The first condition under para 5(2) is that it would be unconscionable to dispossess the squatter on the basis of proprietary estoppel and the circumstances ought to put the squatter in possession of the registered land.^27 The equitable principles practiced under proprietary estoppel will have the squatters establish that the registered owner in some way encouraged or allowed him to believe that he own the land; his belief led to the squatter acted in detriment to the knowledge of the proprietor; and it is unconscionable for the registered owner to deny the squatter’s rights which he believed he had^28.^29 For instance, the HM Land Registry noted this condition might apply when the squatter built certain structures on the registered owner’s land in the belief that he is the owner of the land and the owner was aware of the squatter’s activities but did not intervene. The second condition – para 5(3) is that the squatter is for some other reason entitled to be registered as the proprietor.^30 The HM Land Registry did not provide any detailed application of this condition but merely provided two examples for the readers.^31 The examples provided are where the squatter is entitled to the land by will or intestacy of the deceased proprietor, and where the legal estate was never transferred to the squatter after paying the purchased price. Martin Dixon noted that the squatters in these examples need not rely on adverse possession at all to establish title when they are for other reasons entitled to be registered.^32 Thus, the direction of applying this exception is not immediately obvious. However, Martin Dixon gave his view that in the event the registered proprietor was denied rectification to the register under Schedule 4 LRA 2002^33 , adverse possession will assist squatters in these examples by providing another route to rectify the register.^34 The third condition under para 5(3) provides for issues pertaining adjoining lands between neighbours as the exact boundary could not be identified. This exception can be broken into (^27) Land Registration Act 2002, sch 6 para 5(2) (^28) HM Land Registry, Land Registration for The Twenty-First Century A Conveyancing Revolution (Law Com 271,
- para 14. (^29) HM Land Registry, ‘Practice guide 4: adverse possession of registered land’ (GOV.UK, 28 September 2020) <https://www.gov.uk/government/publications/adverse-possession-of-registered-land/practice-guide-4- adverse-possession-of-registered-land#objecting-to-the-squatters-application> accessed 19 April 2021 (^30) Land Registration Act 2002, sch 6 para 5(3) (^31) HM Land Registry, ‘Practice guide 4: adverse possession of registered land’ (GOV.UK, 28 September 2020) <https://www.gov.uk/government/publications/adverse-possession-of-registered-land/practice-guide-4- adverse-possession-of-registered-land#objecting-to-the-squatters-application> accessed 19 April 2021 (^32) Martin Dixon, Modern Land Law (12th edn, Routledge 2021) (^33) Land Registration Act 2002, sch 4 (^34) Martin Dixon, Modern Land Law (12th edn, Routledge 2021)
4 conditions that need to be proven by the squatter: the land of the squatter is adjacent to the land in dispute, the exact boundary is yet to be determined, the land to which the application relates was registered more than one year prior to the date of the application, the squatter has been in adverse possession of the adjacent land for 10 years and reasonably believed that the land belonged to him. If the squatter’s application is rejected as a result of the registered proprietor’s objection and counter notice, where none of the three conditions in Schedule 6, para 5^35 is satisfied, he is given the option to reapply as proprietor after 2 years from the date of rejection of the previous application subject to 3 conditions.^36 These conditions are that the squatter is not a defendant in proceedings for possession, there is no judgment for possession given against him in the last 2 years, and he is not evicted pursuant to a judgment for possession. One principal objective of the LRA 2002 is to make the land register more definitive as to title.^37 The objective alone shows the Law Commission intend to have the land register reflects a more accurate picture of a person’s title to land, thus cementing the owner’s claim for having a legal title to land. Their commitment has made drastic progress towards their objective by transforming the basis of entitlement to land, from title by possession to title through registration under LRA 2002.^38 This study submitted squatter is not provided greater rights after LRA 2002 , the following will justify the statement. One noticeable difference between the old and new regime was the period of adverse possession required before making a claim in adverse possession. The squatter now has to fulfil 10 years of possession as opposed to 12 years previously. The shorter period under LRA 2002 may cause some to think that squatters did acquire greater rights since they can apply to become a registered proprietor much sooner than with LRA 1925. However, the new regime, along with the 10 years period, also introduced an entirely different mechanism for claiming title by way of adverse possession. Squatters subject to LRA 2002 will no longer secure their rights in land automatically but must now apply to the LR, who will then serve a notice to the registered proprietor. The notice will ultimately alert the (^35) Land Registration Act 2002, sch 6 para 5 (^36) Land Registration Act 2002, sch 6 (^37) HM Land Registry, Land Registration for The Twenty-First Century A Conveyancing Revolution (Law Com 271,
(^38) Neil Cobb and Lorna Fox, ‘Living outside the system? The (im)morality of urban squatting after the Land Registration Act 2002’ (2007) 27 CUP 236
The LRA 2002 further limits the rights of squatter where he is eligible to rely on LRA 1925 after October 2003, had 12 years of adverse possession before the effective date but did not apply to entered as registered proprietor. The squatter must now show he was in actual occupation of the land on top of the 12 years of factual possession to be entitled under LRA 1925.^47 Thus, his claim to title will be diminished if the owner can prove the squatter was in fact not in actual occupation when the application to be entered as registered proprietor was made. The LRA 2002 has made it difficult for squatters to successfully claim title to land, as now it can only be achieved if the owner fails to recover possession by not evicting the squatter after defeating the squatter’s claim within 2 years.^48 Yet, the chance of success is fairly low as it takes a very incompetent or uninterested owner to fail to recover possession during the 2-year period of grace.^49 The abolishment of adverse possession is split between legal academics. For instance, Kevin Gray wrote that the principle of adverse possession has no relevance to the Parliament’s objective of creating a regime where the registration of title will provide a definitive record of land ownership.^50 Whereas Rosemary Auchmuty argues that adverse possession maintains economic efficiency and accommodate individuals in need.^51 The following section will examine the arguments for and against the abolishment. The most compelling argument in support of adverse possession must be that land is a very valuable commodity and a finite resource thus should be given to the person making good use of it. Many academics had justified adverse possession on the premise of necessity.^52 The Office of the Deputy Prime Minister published a housing statistic indicated that 3. million households are needed by 2016 to accommodate the population^53 ; and there are around 253,000 individuals living in temporary accommodation^54. The statement also wrote (^47) Explanatory notes to the Land Registration Act 2002, 323 (^48) Yui Nga Natalie Tsang, ‘The Role of Adverse Possession in Modern Land Law’ (2019) 4 LSE Law Review 29 (^49) Martin Dixon, Modern Land Law (12th edn, Routledge 2021) (^50) Kevin Gray and Susan Francis Gray, Elements of Land Law (5th edn, OUP 2009) (^51) Rosemary Auchmuty, ‘Not just a Good Children’s Story: A Tribute to Adverse Possession’ [2004] 68 Conveyancer and Property Lawyer 296 (^52) Rosemary Auchmuty, ‘Not just a Good Children’s Story: A Tribute to Adverse Possession’ [2004] 68 Conveyancer and Property Lawyer 296. See also JM Netter, PL Hirsch & WD Manson, ‘An Economic Analysis of Adverse Possession Statutes’ (1986) 6 International Review of Law and Economics 217 (^53) Social Trends 36, (London: Office for National Statistics, 2006), p (^54) May Bulman, ‘Surge in families living in temporary accommodation during pandemic’ (Independent, 17 December 2020) <https://www.independent.co.uk/news/uk/home-news/homeless-temporary-
that the current empty properties could offer up to 600,000 new homes.^55 These are the result of a housing crisis surfaced at the beginning of the 21st^ century and persist till today.^56 Adverse possession could assist the government with its citizen’s welfare by allocating empty houses to individuals in need through judicial decisions operating under LRA 2002. Although the Act introduced a more rigorous regime, the law still provides squatters with a right to claim title to ‘forgotten properties’ or land neglected by their owners given they satisfy requirements. Another argument against the abolishment is adverse possession does not contravene the owner’s human rights under Article 1, protocol 1 of ECHR^57 – provides for the peaceful enjoyment of his possessions unless public interest and the law says otherwise. The ECtHR in Pye v UK^58 affirmed that the law of adverse possession is consistent with human rights law and a former landowner could not seek to challenge the lose of title on human rights grounds. The majority judgement in Pye v UK^59 provided some merits for adverse possession. First, the limitation period under LRA 1925 was relatively long.^60 It is reasonable belief that 12 years of factual occupation by a squatter meant the owner was not making use of the land or simply neglected. This issue also gave rise to the morality of the neglectful owners discussed by Neil Cobb.^61 He stated landowners must look beyond their selfish interest to ensure that the limited and vital commodity that is land is managed fairly on behalf of the community as a whole.^62 Similarly, we can extract the criticisms of adverse possession from the dissenting judgement in Pye v UK^63. The argument that adverse possession will encourage landowners to exploit, improve or make use of their land is not a plausible one as such encouragement could be accommodation-families-shelter-b1775045.html> accessed 24 April 2021 (^55) More than a Roof: A Report into Tackling Homelessness (London: ODPM, 2002) (^56) Lydia McMullan, ‘UK housing crisis: how did owning a home become unaffordable?’ (The Guardian, 31 March
- <https://www.theguardian.com/business/ng-interactive/2021/mar/31/uk-housing-crisis-how-did- owning-a-home-become unaffordable> accessed 24 April 2021 (^57) European Convention on Human Rights, art 1 protocol 1 (^58) JA Pye (Oxford) Ltd v United Kingdom [2005] ECHR 921 (^59) ibid (^60) ibid (^61) Neil Cobb and Lorna Fox, ‘Living outside the system? The (im)morality of urban squatting after the Land Registration Act 2002’ (2007) 27 CUP 36 (^62) ibid (^63) JA Pye (Oxford) Ltd v United Kingdom [2005] ECHR 921
- Land Registration Act 2002, sch 4
- Land Registration Act 2002, sch 6
- Land Registration Act 2002, sch 6 para 3
- Land Registration Act 2002, sch 6 para 5
- Land Registration Act 2002, sch 6 para 5(2)
- Land Registration Act 2002, sch 6 para 5(3)
- Limitation Act 1980
- Limitation Act 1980, s 15
- Limitation Act 1980, s 15
- Limitation Act 1980, s 15(1)
- Limitation Act 1980, s 17
- Limitation Act 1980, s 75(1)
- Limitation Act 1980, s 75(2)
- Limitation Act 1980, sch 1
- The Land Registration Rules 2003, r 189 Case law
- Baxter v Mannion [2011] 1 WLR 1594
- Best v Curtis [2015] UKFTT 0130
- Dowse and Another v City of Bradford Metropolitan District Council [2020] UKUT 202 (LC)
- IAM Group v Chowdry [2012] EWCA Civ 505
- JA Pye (Oxford) Ltd v United Kingdom [2005] ECHR 921
- King v Suffolk CC [2015] UKFTT 0867
- Zarb v Parry [2011] EWCA Civ 1306
Secondary sources
- Explanatory notes to the Land Registration Act 2002, 323
- HM Land Registry, Land Registration for The Twenty-First Century A Conveyancing Revolution (Law Com 271, 2001)
- JM Netter, PL Hirsch & WD Manson, ‘An Economic Analysis of Adverse Possession Statutes’ (1986) 6 International Review of Law and Economics 217
- Kevin Gray and Susan Francis Gray, Elements of Land Law (5th edn, OUP 2009)
- Lydia McMullan, ‘UK housing crisis: how did owning a home become unaffordable?’ (The Guardian, 31 March 2021) <https://www.theguardian.com/business/ng-interactive/2021/mar/31/uk-housing-crisis- how-did-owning-a-home-become unaffordable> accessed 24 April 2021
- Martin Dixon, ‘Adverse Possession and Human Rights’ [2005] Conv 345, 347
- Martin Dixon, Modern Land Law (12th edn, Routledge 2021)
- May Bulman, ‘Surge in families living in temporary accommodation during pandemic’ (Independent, 17 December 2020) <https://www.independent.co.uk/news/uk/home-news/ homeless-temporary-accommodation-families-shelter-b1775045.html> accessed 24 April 2021
- More than a Roof: A Report into Tackling Homelessness (London: ODPM, 2002)
- Neil Cobb and Lorna Fox, ‘Living outside the system? The (im)morality of urban squatting after the Land Registration Act 2002’ (2007) 27 CUP 236
- Rosemary Auchmuty, ‘Not just a Good Children’s Story: A Tribute to Adverse Possession’ [2004] 68 Conveyancer and Property Lawyer 296
- Social Trends 36, (London: Office for National Statistics, 2006), p
- Yui Nga Natalie Tsang, ‘The Role of Adverse Possession in Modern Land Law’ (2019) 4 LSE Law Review 30
