Everybody, whether lawyer or layperson, knows about squatters' rights. Twelve years adverse possession and you acquire possessory title - but, if title to the land is registered, no longer. One of the foundations of English and Welsh land law has been cast into the melting pot of statutory reform and emerged looking very different. Part 9 of the Land Registration Act 2002, which was brought into force on 13 October 2003, contains an entirely new scheme.
Nic Madge
Revised November 2004
The old law
Limitation Act 1980, s15(1) provides that no action shall be brought to recover any land after the expiration of the limitation period of twelve years. "Limitation . extinguishes the right of the true owner to recover the land, so that the squatters possession becomes impregnable, giving him a title superior to all others." (Buckinghamshire County Council v Moran [1990] Ch 623, 635, CA). Time runs from the commencement of adverse possession. That requires a degree of occupation or physical control, coupled with an intention to possess without the consent of the paper owner (JA Pye (Oxford) Ltd v Graham [2002] UKHL 30 [2003] 1 AC 419). Adverse possession may cease (Limitation Act 1980, Sch 1) if the occupier gives a written acknowledgement of the true owners title (ss29 and 30); if the true owner grants a tenancy or licence to the occupier; or if the true owner physically re-enters upon the land.
After twelve years adverse possession, the paper proprietor of the land holds it on trust for the squatter who may apply to be registered as proprietor of a new estate, where the registered land is freehold, or as proprietor of the registered estate where that estate is leasehold (Land Registration Act 1925 s75).
Land Registration Act 2002
The Land Registration Act 2002 (which follows recommendations in Law Commission Report 254 Land Registration for the Twenty-First Century) provides a new scheme for adverse possession of registered land. Adverse possession of itself, for however long, will not bar the owner's title to a registered estate in land (s96).
Right to apply - 10 years adverse possession
However a squatter will be entitled to apply to the Land Registry to be registered as proprietor after ten years' adverse possession (s97 and Sched 6). The Land Registration Rules 2003 set out the procedure to be followed. Applications will have to be in Form ADV1 and accompanied, among other things, by a statutory declaration. The registered proprietor, any registered chargee, and certain other persons interested in the land will be notified of the application.
Objections to the application
If the application is not opposed by any of those notified, the squatter will be registered as proprietor of the land. Otherwise, adverse possession for ten years will not by itself give a right to registration. If any of the people notified opposes the application it will be rejected, unless the adverse possessor can bring him or herself within one or more of three conditions contained in Schedule 6 para 5;
(a) it would be unconscionable because of an equity of estoppel for the registered proprietor to seek to dispossess the applicant; or
(b) the applicant is for some reason entitled to be registered as a proprietor; or
(c) in some circumstances, the land is adjacent to land belonging to the applicant).
To come within this third category, for at least 10 years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) [must] reasonably [have] believed the land to which the application relates belonged to him (para 5(4)(c)). This third ground was brought into force one year after all the other provisions, i.e. on 13 October 2004.
Second application by squatter
If the squatter's application for registration is refused but the squatter remains in adverse possession for a further two years, he or she will be entitled to apply once again to be registered and will this time be registered as proprietor whether or not the registered proprietor objects. The purpose of the two-year period is to enable the paper owner to evict the squatter.
Effect on proceedings
Where the registered proprietor brings proceedings to recover possession from a squatter in that intervening period, the Act allows the squatter to establish certain limited defences that are consistent with the three conditions in Schedule 6. Ten years adverse possession by itself is not a defence. If a landowner obtains judgment for possession against someone who has been in adverse possession for ten years, that judgment ceases to be enforceable two years after the date of the judgment (s98). If, in proceedings, a court determines that a squatter has a defence under s98 or that a judgment for possession ceases to be enforceable under s98(4), the court must direct the Land Registrar to register that person as proprietor of the estate.
Transitional provisions
Pre-existing rights
The Land Registration Act 2002 will not immediately affect the position of those who have already acquired possessory title prior to its implementation. Schedule 12, para 18 provides that where a registered estate in land is held in trust for a person by virtue of Land Registration Act 1925 s75(1) immediately before the coming into force of s97, he or she will be entitled to be registered as the proprietor of the estate. Similarly a person will have a defence to any action for the possession of land if he or she is entitled under Sched 12 para 18 to be registered as the proprietor of an estate in the land.
The next three years
For three years after 13 October 2003 the squatters unregistered interest will be an overriding interest whether or not he or she is in actual occupation and so will be binding on purchasers (Sched 12, paragraph 7).
After that
However after three years have passed any squatter who has not been registered as owner will only continue to have an overriding interest if he or she remains in occupation and Sched 3 para 2 applies.
Sources
The Land Registration Act 2002 is available here
The Land Registration Rules 2003 are available here
The Law Commission Report 254 Land Registration for the Twenty-First Century is available from the Law Commission website as a pdf file although it is rather too large to download
Nic Madge
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