The Land Registration Act 2002

Introduction

The Land Registration Act 2002 (LA 2002) vests a legal estate identified in the register in a registered proprietor (HM Land Registry, 2020). Does this mean that LA 2002 recognised only registered proprietor as having interest in a land? This article will seek to address this question.

If one looks at the Land Registration Act 2002, the legal regime is applicable only to registered land. Schedule 6 provides this legal regime (HM Land Registry, 2020). Accordingly, a registered proprietor’s title cannot be affected by an adverse possession of registered land for 12 years. A registered proprietor can prevent an application for adverse possession of their land (HM Land Registry, 2020). However, there is still a window provided by the LA 2002 for adverse possession to become registered proprietor. The LA 2002 allows squatter to apply for registering themselves as a proprietor in place a registered proprietor after 10 years of adverse possession (HM Land Registry, 2020).

This provision of adverse possession, thus, gives rise to the question of whether or not law should only favour the title and exclusion instead of leaving the window allowing adverse possession as the Schedule 6 regime recognises registered proprietor.

Adverse possession serves social justice or takes advantage of inability of registered proprietor’s right to defend their proprietary rights

The law empowers squatter with the ability to replace a registered proprietor. The LA 2002 is a good example for this. Its Schedule 6 (1)) allows a squatter to apply to register as a proprietor of a land in which they have an adverse possession for a 10 years. The Act though provides for various formalities that need to be met before they are given the title, such notifying the proprietor (2(1). Section 96 of the LA 2002 has removed the application of limitation period ensuring that the proprietor has the permanent right to claim recovery of their land. The reason for the principles of adverse possession finds basis on the Law Commission justification that it encourages owners to guard possession with the registration of their land (Woods, 2009). This regime is applicable to registered title, giving proprietors rights to exclude adverse possession (Woods, 2009). However, the exclusion of non-registered land gives more rights to possessor than the owner. Ownership cannot be recognised when the land is registered. Further, still allowing adverse possession in the LA 2002 to claim ownership is against the fundamental concept of indefeasibility, which characterises registered title. If the claim that the LA 2002 has brought reforms by removing the limitation period to address the issues of adverse possession competing with the registered proprietor, the relevant land law is far from handling the issue. The case of (J.A. Pye (Oxford) Ltd and another v Graham and another (Pye) [2002] UKHL 30, 2002) is a classic example of how adverse possession could trump registered owners of a land. This case concerned one main question of whether or not the trespasser possessed the land for the requisite period of twelve years using the ordinary meaning of that word. In other words, the issue was whether or not the owner discontinue possession or was the land ‘dispossessed (J.A. Pye (Oxford) Ltd and another v Graham and another (Pye) [2002] UKHL 30, 2002). This question itself denies the fundamental concept of indefeasibility connected with registered title. The question itself without doubt recognises the validity of the claim of the adverse possessor. It does not consider the right of the owner under Section 23 to dispose interest in their land.

The House of Lords cited s15(1) of the Limitation Act 1980 that provides for right of an owner to claim recovery of his land is limited to 12 years from the date on which the right of action accrued. Thus, possession of the land is important to claim recovery of the land, as per Schedule 1, paragraph 8(1) (J.A. Pye (Oxford) Ltd and another v Graham and another (Pye) [2002] UKHL 30, 2002). According to Lord Browne-Wilkinson, possession must be factual possession and must have intention to possess (J.A. Pye (Oxford) Ltd and another v Graham and another (Pye) [2002] UKHL 30, 2002). According to Slade J, in (Powell v McFarlane (1977) 38 P&CR 452, 1977, p. 470), for factual possession it needs an appropriate degree of physical control, which is a single and exclusive possession and for intention, it should be on own name and to exclude the world at large (Powell v McFarlane (1977) 38 P&CR 452, 1977, p. 471).

The rulings above do not even recognise the fact a land is registered in a person name, and it should be the owners who have the physical control. Being registered as an owner holds secondary ground as per the rulings above. As per J.A. Pye (Oxford) Ltd, the adverse possession could claim the land only when there is no consent from the owner. The ruling does not speak about implied consent or express consent. In J .A Pye, the use of the land of the owner for grazing even after the expiry of the grazing agreement with the claimant could be said to be an implied consent from the owner. If it this perspective was considered, the ruling would be different from allowing adverse possession. This leads to the questions concerning possession of a land on the mistaken belief that the occupier has permission of the owner. There is no settled law regarding this situation (Rostill, 2021). The occupier may have the intent to possess even though they are prepared to vacate the land, as was held in the case of (Wretham v Ross [2005] EWHC 1259 (Ch.), 2005) where the occupier exercised exclusive physical control on the mistaken belief that he had the intent to possess to the exclusion of others including owners even though he was ready to vacate the place. Thus, the question is whether or the occupier has the real intention or consent to possess to exclude the owner (Rostill, 2021). Without dealing with this crucial question, the LA 2002 has focussed on 10 years adverse possession to claim interest over the registered proprietor’s rights as owner.

An alternative argument in favour of the doctrine of adverse possession is found in the social distribution theory. The qualification, as LA 2002 provides for instance section 5(4) of Schedule 8 conditions, to permit adverse possession to become registered proprietor could be seen as a failure to embrace the doctrine of adverse possession as a redistributive tool (Davis, 2010). The case of J.A. Pye (Oxford) Ltd.and another v. Graham and another (Pye) raised the question of whether or not an adverse possession violates a human right to own property. Courts have been criticised that they are not even ready to consider adverse possession and its role in substantive human rights or social justice concerns (Davis, 2010). One cause is considered the lack of human rights and social justice literature on the adverse possession. Theorists of human rights and social justice might have failed to develop the doctrine of adverse possession in its full form Instead, they laid foundation for using principles of adverse possession to formulate new property systems concerns (Davis, 2010). Thus, if possession is used as a social justice tool, it could foster the legal regime in terms of appropriate property distribution while simultaneously recognising human rights of the owners and the adverse possessors concerns (Davis, 2010). In that regard, can the perspective of distributive social justice in respect to adverse possession competing with the human rights of the registered proprietor could be said to be found in the LA 2002, which allows a squatter with adverse possession of 10 years apply for registration against the owners right to reject the application? Considering that there has been a good number of applications, on an average 20,000, for adverse possession every year out of which 75% have been successful (Un-Habitat, Programme des Nations Unies pour les établissements humains, United Nations Human Settlements Programme, 2007). This data shows a strict compliance of the LA 2002 where adverse possessors have been able to demonstrate the qualification required by the law. However, it does not mean that it is right to take away someone’s proprietary interest. Title is the supreme right, which cannot be taken away by a flaw which squatters can take advantage of.

Conclusion

The LA 2002 allows adverse possession convert illegal trespass to legal registered proprietorship. The justification of the relevant legislation and its intent is understandable based on the social redistributive justice. However, passing on the authority to claim ownership of a private land to another private person instead of to the state does not meet social justice principles. The case ruling of J.A. Pye does not concern determination of intention and consent, as pointed out earlier. This cannot be an example of social distribution system where justice is left to the parties to determine in the court. If there is a high number of dispossession of land by owners and becomes to a large extent a social issue, the very fact that leaving the issue to private parties instead of the state to determine justice does not address the social issue. Thus, adverse possession should favour title and exclusion. The LA 2002 must only recognised registered proprietary land, which does not include those from adverse possession.

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Reflection

The first question that came to my mind is what is the position of law on adverse possession and why the law allows adverse possession. This question takes me to break down the research topic into specific points. For example, what the law says about registration of land. This led to the LA 2002 and other primary government from HM Land Registry. This made it easier to figure out the parts of what I wanted to analyse. For example is the regime of registered proprietor competing with the regime of allowing adverse possession. This led to the question of whether adverse passion is good or bad in terms of social distributive system. In order to understand these questions, I was required to look at case laws and literature and journal article to understand different perspective of the existing legal regime.

I found the case of J.A. Pye, which ruling apparently stuck with the prevailing law and its language. It favoured the adverse possessing claim based on the principle of dispossession by the owner and control of the land by the occupier. However, I did not find the ruling convincing as it did not discuss whether the owner gave consent, whether implied or express, which would have determine validity of the claim of adverse possession. This also led to the perspective of social distribution theory, which favours adverse possession. This made me think whether it is really valid for leaving the question of social justice to the hands of the private parties, especially the person with adverse possession instead of the state. It means any dispossessed land should go to the Crown. It seems the law has favoured a person with more time and resources to take care or to develop a land, irrespective of whether it belongs to another.

Adverse possession is triggered from illegally trespassing. When there is law against illegal trespass, it is strange to have another law, which is the LA 2002, which protects this illegality and convert such illegality into a recognised right in the form of registered proprietary rights over someone’s land. Many questions came to my mind. For example, whether the 10 years adverse possession is enough to override rights of a person over an inherited property belonging to their generation of family; whether a strict compliance of the LA 2002 is justifiable to take away somebody’s property that might have been bought by their hard earned money; or whether the law that priorities registration and registered rights is completely flawed by still allowing adverse possession. The concerned statement and the analysis done here rather than looking at from a legal perspective has forced me to simply apply logic and common sense, which I do not see in the justification given by the law Commission.

Bibliography

HM Land Registry, 2020. Guidance Practice guide 4: adverse possession of registered land. [Online] Available at: https://www.gov.uk/government/publications/adverse-possession-of-registered-land/practice-guide-4-adverse-possession-of-registered-land [Accessed 14 04 2021].

Davis, T., 2010. Keeping the Welcome Mat Rolled-Up: Social Justice Theorists' Failure to Embrace Adverse Possession as a Redistributive Tool. Journal of Transnational Law & Policy,, Volume 20, p. 73.

Woods, U., 2009. The English Law on Adverse Possession: A Tale of Two Systems. Common Law World Review, 38(1), pp. 27-55.

J.A. Pye (Oxford) Ltd and another v Graham and another (Pye) [2002] UKHL 30 (2002).

Powell v McFarlane (1977) 38 P&CR 452 (1977).

Wretham v Ross [2005] EWHC 1259 (Ch.) (2005).

Rostill, L., 2021. Possession, Relative Title, and Ownership in English Law By Luke Rostill. s.l.:Oxford University Press.

Un-Habitat, Programme des Nations Unies pour les établissements humains, United Nations Human Settlements Programme, 2007. Enhancing Urban Safety and Security Global Report on Human Settlements 2007 By Un-Habitat, Programme des Nations Unies pour les établissements humains, United Nations Human Settlements Programme. s.l.:Earthscan.