Wednesday, August 1, 2012

adverse possession: how have squatter's rights been affected by the new 'land registration' Act 2002

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The Land Registration Act was first enacted in 15, the system is based on two types of estates, freehold and leasehold ‘which rest upon wholly different foundations’ . The Land Registry and Law Commission were responsible for the introduction of the Draft Land Registration Act . There is a statutory requirement from April 18, that all conveyances of freehold or long leasehold estates must be completed by registration of title at the HM Land Registry. The new Act came into force in October 00

Part of the Act deals with, adverse possession, where the first registered occupier is dispossessed by a squatter who is in factual possession and shows an intention to possess. After the trespasser lets the authorities know of his existence he can issue a caution, this enables him to be listed on the register. If anyone wishes to make a conveyance of the land, it will be mandatory for the Registry to notify the trespasser of anyone else wanting to acquire the ‘first registration’, held by the registered proprietor, to that land. In Littledale’s case the user of the land, put up gates which showed his intention to possess, this is de facto possession, as he had no title to the land, and through the virtues of the Limitation Act legitimised his continuing possession.

The ‘Disapplication of Periods of Limitation’ is the first section contained within Part . Where there is a mortgagee, they will be entitled to the land if, after 1 years the mortgagor decides to take away the property and has made no effort during the limitation period to ensure payments were made on the account. Once a claim to land has been made, the Land Registry is obliged to give notice to the registered owner of the land and any lender whose interest is noted in the title. However the new Act will ensure that after the tenth year anyone on the charges register will be notified of the new intention and will take the appropriate steps. The courts have the power to trace the concurrent title holder as in Pollard v. Jackson (1), thus ensuring that land has not mistakenly been taken. The first title holder has the defence that ‘possession is good against all the world except the person who can shew a good title’. The adverse possessor cannot benefit from overreaching rights; therefore, he will be bound by all existing rights on the register, such as paying a mortgage, and if he is on leased land, he must pay the rent, however may not be liable for not paying other equitable interests or covenants over the land.

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The next section is the ‘Registration of adverse possessor’, which states that even though no period of limitation runs in relation to a registered estate, it will still be possible for a person in adverse possession to be registered in place of the proprietor of a registered estate or rentcharge. Under Schedule 6 of the LRA 00, if the registered owner objects to the registration of the squatter’s rights then the squatter’s application will be rejected unless he or she comes within one of three exceptions It is unreasonable for the squatters application to be rejected, for example, if the squatter mistakenly believed he owned the land, by some act of the proprietor and it would be unconscionable for the proprietor to deny the squatter the rights he believed he had; Secondly, the squatter is entitled to be the registered proprietor, for example, where the squatter contracted to buy the land and paid the purchase price, but the legal estate never transferred to him and; Finally, where a mistake has been made in relation to the boundary of the land, for example, where the dividing walls or fences on an estate were erected in the wrong place and not in accordance with the plans in the title deeds. Encroachment is done frequently by a neighbour who mistakenly takes a piece of land when putting up a fence or, by a licensee who uses land for grazing after the license has expired.

The last section of Part is ‘Defences’, Schedule 6 refers to the rights of the paper owner and squatter. In relation to this section a squatter can defend an action for possession of the land if they have been in ‘adverse possession of the estate for the period of ten years , the Limitation Act requires the squatter to show an intention to possess during the 10 year period or as per Slade J in Powell v McFarlane ‘ the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title’, which will purport to be an overriding interest. Where the proprietor has obtained a judgement for possession of land and takes it, the squatter will be trespassing, which is a criminal offence. However, if after two years from the date of the judgement, the concurrent paper owner did not signify his right to the land, the squatter is entitled to re � apply for registration . If successful and the proprietor were to bring fresh proceedings the squatter would have a defence, having an overriding interest and the court would be required to order the registrar to register the squatter as proprietor of the land .

The Law Commission report ‘intended to strike a more appropriate balance between landowner and squatter’ . This has been achieved in that mere possession will not confer an absolute or possessory title to land, the requirement is registration alone. The fact that an adverse possessor needs to make the Registry aware of his occupancy after 10 years, can be done if you ‘send yourself a letter � it could be used as proof you are living there’ , this relates to the cases that were brought against many of the London Borough Council’s, their houses were not properly recorded in their accounts. As in Ellis v. Lambeth B.C. , the squatter claimed possession of a council house worth £00,000.

In Buckingham County Council v. Moran , the facts state, that a neighbour of a plot of land, owned by the Council kept it as his. Moran had uninterrupted use of the land, he kept it clean which showed an intention to possess, therefore his animus possidendi was that he kept it clean, he used the land as his, and therefore excluded others from occupying, at the present time and throughout the duration of the 10 years, as there was no barrier separating the lands. The Council asserted their right by sending the defendant a letter, though nothing materialised after this. It has been shown that ‘[a]n owner who retains land unused because he has a future intended use of land could be dispossessed’ which is part of paragraph 5 Schedule 6 of the Land Registration Act 00. If this case were to be decided today, Moran would be required to assert his right over the land by making an application at the Land Registry after ten years of similar occupation.

“The registered proprietor has one chance […] to terminate a squatter’s adverse possession”

This is more logical than the previous system of registering title by adverse possession as it puts a further restraint on people taking other people’s land away. The right to enjoy one’s property is more recognised as an important human right. If Moran’s case were to be considered in today’s times, the Council would have won, as they would reply probably ‘within a period of three months’ , within the two � year constraint, as in Mabo v. Queensland (No. ), ‘possession, even if lost, gives rise to a right to recover possession, since as between mere possessors prior possession is a better right’ . The Limitation Act is in place to ensure that people do not sleep on their rights.

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