Adverse Possession Update

Transcription

1 Adverse Possession Update Alex Troup St John s Chambers 8 th June 2010

2 The old law Unregistered land: the "old law" applies, i.e. 12 years adverse possession gives squatter possessory title Registered land prior to 2 October 2000: "old law" applies, i.e. 12 years adverse possession results in land being held on trust for squatter: see s.75 Land Registration Act 1925 e.g. Pye v. Graham [2003] 1 AC 419 Grand Chamber of the European Court of Human Rights held that the law is not incompatible with the ECHR, and therefore dismissed Pye's claim to damages against the UK: see Pye v. UK (Lawtel, 30 August 2007).

3 Human Rights Act 1998 Came into force on 2 October 2000 In Beaulane Properties v. Palmer [2006] Ch 79 it was held that the law of adverse possession applying to registered land violated the ECHR, and should be interpreted as only applying to those cases where the squatter's possession was inconsistent with the paper title owner's intended use of the land. Beaulane has not been expressly overruled, but it predated Pye v. UK and is almost certainly wrong

4 Land Registration Act 2002 Came into force on 13 October 2003 Schedule 6 introduces an entirely new system for adverse possession of registered land. The basic scheme is as follows:- 10 years adverse possession entitles squatter to apply to registrar application served on paper title owner (among others) if paper title owner does not object within 65 business days, then squatter is registered as proprietor if paper title owner objects, squatter must prove one of 3 grounds: estoppel some other reason why squatter is entitled to be registered reasonable mistake as to boundaries If application fails, then squatter can re-apply if he is still in adverse possession 2 years later, and the application will automatically succeed unless one of 3 exceptions applies: trespasser a defendant in possession proceedings judgment for possession given in last 2 years trespasser has been evicted pursuant to a judgment for possession

5 Baxter v. Mannion [2010] EWHC 573 Squatter claimed to have been in adverse possession for 10 years and applied to be registered as proprietor under Sch.6 LRA Paper title owner, due to illness, failed to serve counternotice within deadline. Squatter registered as proprietor. Paper title owner subsequently applied to rectify the register to remove squatter as proprietor, arguing that squatter had not been in adverse possession for 10 years. Held: squatter had not been in adverse possession for 10 years; paper title owner's application was granted by Adjudicator, and decision was upheld by High Court on appeal. One of the preconditions for rectification is that there has been a "mistake" (Sch.4 paras.2(1)(a) and 5(a)). Squatter's argument that "mistake" for these purposes is limited to procedural mistakes was rejected. Rectfication can only be granted where (a) proprietor has contributed to the mistake by fraud or lack of care or (b) it would be unjust not to rectify for any other reason (Sch.4 para.6(2)). The second of these conditions was satisfied here.

6 Transitional provisions A squatter who can establish 12 years adverse possession prior to 13 October 2003 can still apply under LRA 2002 (Sch.12 para.18) For the first 3 years after LRA 2002 came into force (i.e. until 13 October 2006), the right of such a squatter to be registered as proprietor was an overriding interest which survived first registration and bound successors in title (Sch.12 paras.7 and 11) Since 13 October 2006, the right of such a squatter will only be an overriding interest if he falls within Sch.3 para.2, i.e. he is in actual occupation and none of the exceptions apply.

7 The Adjudicator LRA 2002 creates a new creature known as the Adjudicator, whose purpose is to resolve disputes referred to him by the Land Registry Proceedings before the Adjudicator are governed by the Adjudicator to Her Majesty's Land Registry (Practice and Procedure) Rules 2003 (as amended in 2008) Helpful information available at the Adjudicator's website: In practice, the process feels very much like ordinary litigation. The main advantage is that the "judge" will be a property law specialist. Adjudicator has the power to make costs orders in the usual way Appeal lies to the Chancery Division of the High Court

8 Implied consent It is trite law that possession with the consent of the paper title owner is insufficient to establish adverse possession But in the absence of evidence of express consent, in what circumstances will the court infer consent? In J Alston & Sons Ltd v. BOCM Pauls Ltd [2008] EWHC 3310 (Ch) it was held that consent will only be inferred from overt acts or demonstrable circumstances which are not only consistent with there having been permission, but are probative of it. The classic situation where consent is inferred is where the squatter is allowed into occupation pending negotiations for the grant of an interest in the land to him: c.f. Colin Dawson Windows Ltd v. Howard [2005] EWCA Civ 9. But the mere occupation of the land by the squatter without objection from the paper title owner is insufficient: c.f. Alston

9 Estoppel There appears to be no reason in principle why an adverse possession claim cannot be defeated by the doctrine of estoppel In St. Pancras & Humanist HA v. Leonard [2008] EWCA Civ 1442 the Court of Appeal upheld the first instance decision that the defendant squatter was estopped from claiming adverse possession of a garage, despite having been in possession for more than 12 years The defendant had attended meetings of the management committee of the claimant's predecessor in title, and led the committee to believe that he was not asserting ownership of the garage. In reliance upon that, the predecessor took a lease of land which included the garage. That was sufficient to establish an estoppel: the fact that the defendant was not aware of his potential right to claim adverse possession until much later was irrelevant.

10 Acknowledgement of title An acknowledgement of title will postpone the running of time for limitation purposes: ss.29 and 30 Limitation Act 1980 In Ofulue v. Bossert [2009] 1 AC 990 confirmed two points. First, acknowledgement of title may be made in pleadings, but such an acknowledgement operated only as at the date of the pleading. It did not operate as a continuing acknowledgment during the course of the proceedings. Second, an offer to purchase the property constituted an acknowledgement of title, but could not generally be relied upon as such if it was made "without prejudice".

11 Highways In R ex parte Smith v. Land Registry of Cambridge County Council [2010] EWCA Civ 200 the Court of Appeal confirmed that it is not possible to claim adverse possession of land forming part of a public highway.