ABSTRACT
The law of adverse possession is something of a peculiarity in English law. It is, in effect, a set of rules that offers an opportunity1 to a mere trespasser actually to acquire a better title to land than the person who ‘legally’ owns it and to whom it was once formally conveyed with all of the solemnity of a deed or registered disposition. In fact, adverse possession is rooted in the feudal origins of English land law and it is the most obvious modern example of the ‘relativity of title’ that once lay at the heart of the doctrine of estates. Given that in English law no person may own land itself – only an ‘estate’ in it – it is in theory perfectly possible for someone other than the ‘paper’ or ‘real’ owner to gain a better title without any formal transfer of ‘ownership’. A person’s title to land, including the paper owner’s, is, as a matter of theory, only as good as the absence of a person with a better title. However, as we shall see, this justification for adverse possession is fast becoming out of date. Although it remains the case under the Land Registration Act (LRA) 2002 that a person is still registered with an estate – not with the land itself2 – registration as proprietor under the 2002 Act is a more robust guarantee of ownership than anything that has gone before. As we have seen in Chapter 2, there is still room for alteration of the register, and adverse possession of a registered title is not impossible, but registration of a person as proprietor under the LRA 2002 is the closest thing in over 900 years to absolute ownership of land.3 This has led to a radical overhaul of the law of adverse possession as it applies to registered land, and this must be remembered in the ensuing discussion. Similarly, the introduction of a second criminal offence in relation to squatting in a residential building may have an impact on the ‘squatter’s’ ability to claim title.4 Both of these matters are considered more fully below. Despite the radical surgery performed by the LRA 2002, the fact that the common law should have developed a set of principles that might operate to deprive a ‘paper’ owner of his title to land is not as remarkable as might first appear.5 Historically, the common law always has been more concerned with the development of remedies for concrete situations, rather than the formulation of abstract rights, and so the apparent lack of regard for the ‘rights’ of the paper owner, expressed in terms of a denial of a
remedy if the defendant can plead adverse possession, is not particularly surprising or unique. It is also clear that a doctrine of adverse possession can be justified on substantive grounds, even in an age of registration of title. In terms of the legal process, adverse possession is an expression of a policy that denies legal assistance to those who sleep on their rights, as well as ensuring that there is an end to disputes concerning ownership of land.6 Similarly, land is a finite and scarce resource, and the principles of adverse possession can help to ensure its full economic and/or social utilisation, as in Hounslow v. Minchinton (1997), in which the adverse possessor brought neglected land back into use. All this said, however, it would be a mistake to accept unquestioningly the relevance of adverse possession in our modern system of land law, especially one that is moving towards electronic dealings with land. This is especially so in the context of land of registered title where entry of the ‘paper owner’ on the register of title – with a title guaranteed by the State – suggests that we should not accept even the possibility that some interloper might acquire that ownership by mere possession of the land. Indeed, there is a point of principle here, and in so far as adverse possession had developed as a response to difficulties of proving title to land (e.g. where deeds were lost or no good ‘root of title’ could be shown), compulsory and widespread registration of title has removed its raison d’être. If being registered as proprietor of an estate in the land is supposed to be a guarantee of the validity of that title to the whole world (subject only to the limited power to rectify the register under the LRA 2002), should the registered owner ever be susceptible to the claim of a mere trespasser? Moreover, how can we move to a system of e-conveyancing if the ‘mere’ fact of possession by another person might defeat the e-title of the e-vendor? Finally, neither can we ignore the public perception that ‘squatters’ are to be equated with ‘land thieves’, getting something for nothing, and this has proved politically powerful in driving forward the introduction of the new criminal offence referred to above. Such concerns have, of course, proved persuasive, and the LRA 2002 establishes a new regime for adverse possession in respect of registered land – and we should remember that registered land now comprises over 85 per cent of all titles. Now that the relevant parts of the 2002 Act have been in force for ten years, successful new claims to adverse possession of registered land7 are slowing to a thin trickle. That said, for so long as there remain large areas of unregistered land,8 and while it is possible to claim title under the LRA 2002, we need to understand the substantive law of adverse possession. In simple terms then, in the modern law, there remains one common set of rules concerning how adverse possession might be established, but two sets of divergent rules about the effect of a claim on the paper owner’s title. The rules common to both registered and unregistered land are the substantive principles developed through case law over many
decades and now largely set out by the House of Lords in J A Pye Ltd v. Graham (2002). These rules establish when a claim of adverse possession might succeed factually and apply equally to registered and unregistered title. Beyond this, however, there is divergence, with the ‘traditional principles’ of limitation applying to land of unregistered title and the statutory scheme of the LRA 2002 (with a modification in respect of adverse possession under the LRA 1925) applying to registered title. In fact, it is difficult to imagine a contrast so marked as now exists: adverse possession of unregistered land remains a real possibility, but successful9 adverse possession of registered land is improbable in those cases governed wholly by the LRA 2002.10 Indeed, so safe is land of registered title from new claims of an adverse possessor that owners of unregistered estates – particularly local authorities and public bodies with scattered and unmonitored holdings – are applying for voluntary first registration of title primarily to bring themselves within the protective umbrella of the new legislation. In addition, as an extra layer of difficulty, we must then try to assess how the criminalisation of certain types of ‘squatting’11 will affect claims in both registered and unregistered land.
