Экзамен зачет учебный год 2023 / Dixon, Modern Land Law

Modern Land Law

‘sympathetic’ interpretations of these exceptions so as to permit adverse possession of registered land in a wider range of circumstances than is really intended by the Act. This remains to be seen, but it may well be that not all judges share the view that claims to adverse possession should be strangled in the new age of the LRA 2002. What is clear, however, is that this scheme as a whole means the end of one of the last operative feudal elements of English land law. Possibly, we should not lament it. On the other hand, we must also ask whether the LRA 2002 scheme will do anything to encourage negligent or inefficient landowners to make the most of their precious resource called ‘land’. Prior to entry into force of the LRA 2002, a landowner had to be attentive to his estate and failure to use land meant others could acquire it and use it more beneficially (see Lambeth LBC v. Ellis (2000) and Purbrick v. Hackney LB (2003)). After the entry into force of the LRA 2002, a landowner with registered title can sit back and wait for the registrar to inform him that his land is subject to another’s claim and then he can evict at any time within the next two years. Then he can sink back into slumber.

11.4.4 Effect of registration of the adverse possessor

If the adverse possessor is successful and is registered as proprietor, he takes the land subject to any interests affecting the estate, except any registered charge, save that if registration is the result of the application of one of the three exceptions, he takes the land also subject to the registered charge.65 The difference arises because the registered chargee – the bank or other lender – that holds a mortgage over the land will have been served with a notice and so could have requested that the application be dealt with under the two-year rule if it wished to preserve its security. Consequently, it can hardly object to the loss of its charge if, having been served with notice, it fails to take action to evict the adverse possessor. However, if the adverse possessor is registered as a result of one of the exceptions, by definition the mortgagee will have been unable to take advantage of the two-year rule and will not be able to challenge the registration.66 Thus it is entirely appropriate that the adverse possessor should take the title subject to all incumbrances including the mortgage.

11.5 Adverse possession and human rights

It is clear from the preceding analysis that the rules of adverse possession – particularly in relation to unregistered land and registered land operating under the LRA 1925 – can result in the destruction of the title of a duly certified ‘owner’.

65Schedule 6, paragraph 9 of the LRA 2002.

66Assuming, of course, that the substance of the adverse possession claim is made out.

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In one view – indeed the view favoured in Beaulane Properties v. Palmer – this might be thought to contradict a person’s right to peaceful enjoyment of their property as protected by Article 1, Protocol 1 of the European Convention on Human Rights, and as enacted in to English law by the Human Rights Act 1998. Apart from the decision in Beaulane, this argument had been raised previously by counsel for Pye Developments Ltd in the Court of Appeal hearing in Pye v. Graham (2001). As it turned out, the discussion by their Lordships in the Court of Appeal was obiter as the decision then handed down (subsequently overturned by the House of Lords) was that adverse possession was not made out on the facts and hence the alleged violation of the paper owner’s right of property was not in issue. However, Mummery LJ for the Court gave a robust response to the human rights argument. In his view, it was clear that rules imposing a time limit on when persons could bring claims, such as the paper owner, was not itself a contravention of any Convention right. More importantly, the English rules on adverse possession prior to the introduction of the LRA 2002 were a lawful and proportionate application of limitation principles (themselves a manifestation of a public interest) and so a title defeated by adverse possession was not a title denied in violation of Article 1 of Protocol 1. This is powerful reasoning because the right guaranteed in Article 1 of Protocol 1 is not absolute in its own terms and must yield in the face of public policy. Consequently, much turns on the extent and manner in which the rules limiting claims in respect of title to land (and thereby denying title to the paper owner) can be seen as a proportionate application of the public interest. In the House of Lords in Pye v. Graham, which found for the adverse possessor on the substantive law, the view was taken that the Convention was not in issue at all as all material matters arose before the Human Rights Act 1998 came into force.67 However, there was certainly some disquiet among their Lordships in Pye68 about the human rights position in respect of adverse possession under the old law had the Convention been in issue, and it is not apparent that they shared Mummery LJ’s robust position.69

67It was accepted that the Human Rights Act 1998 did not have retrospective effect, a view confirmed by the House of Lords in Wilson v. First County Trust Ltd. (2003).

68See for example, the judgment of Lord Hope in Pye v. Graham at paragraph 73.

69In Family Housing Association v. Donellan (2001) when considering the same issue, Park J suggests that ‘adverse possession’ is not contrary to Article 1 of Protocol 1 because this Article is designed to prevent State (i.e. governmental) interference with property rights. In his view, it was not meant to interfere with ‘private law’ issues like adverse possession, the latter being one individual ‘denying’ the property right of another and having nothing to do with the State. This has echoes of Qazi. Of course, this formulation revisits by another route the argument about whether the Human Rights Act 1998 is ‘vertically’ effective (applicable only where a public authority is one of the parties) or ‘horizontally’ effective (applicable where the parties are private litigants). The answer to that question really revolves around the meaning of the Human Rights Act 1998, particularly sections 3 and 6. It is not to be found in a restrictive interpretation of the very rights themselves.

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This uncertainty was seized on by the judge in Beaulane and then by the majority in the first instance decision of the European Court of Human Rights in Pye v. UK, and in both cases the application of adverse possession to registered land governed by the LRA 1925 was found to be in contravention of the Convention. However, that was not the end of the matter. The slim 4–3 majority at first instance in Pye v. UK, plus the paucity of the majority’s reasoning, made an appeal by the UK inevitable. In 2007, the Grand Chamber of the European Court of Rights gave judgment in the appeal of Pye v. UK. This time, although again by a majority, the Grand Chamber found that the principles of adverse possession as they applied to land governed by the LRA 1925 were not in violation of the Convention.70 Adverse possession did not deprive a landowner of their title per se; rather it amounted to control of land for the public good. Consequently, the absence of compensation for a title owner who lost their title through adverse possession did not signify a breach of the Convention. In essence, the Grand Chamber decided that the principles of adverse possession are a legitimate and proportionate response, within the UK’s margin of appreciation, to a public interest: the interest in settling claims to land. In Ofulue v. Bossert (2008), the Court of Appeal has made it clear that Pye v. UK establishes, as a matter of principle, that the law of adverse possession is Convention compliant and that this decision of the Grand Chamber must be followed within the English legal system. This seems entirely correct.

70It follows that the principles in their application to unregistered land (where the public interest is greater) and to land governed by the LRA 2002 (where the effect of adverse possession is much less severe) are also Convention compliant.

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SUMMARY OF CHAPTER 11

ADVERSE POSSESSION

The traditional principle of adverse possession: the limitation of actions

The ability of an adverse possessor (or ‘trespasser’) to acquire a better right to the land than the paper owner is based on the principle of limitation of actions. This means that a person (e.g. the paper owner of the land) may be ‘statute barred’ from bringing a claim against the adverse possessor to recover possession of the land after the period of limitation has passed. In this sense, adverse possession operates negatively: it prevents an estate owner from suing on his rights and operates to extinguish his title. These principles will continue to govern cases in relation to unregistered land and registered land where the period of adverse possession is completed before 13 October 2003, the entry into force of the Land Registration Act 2002.

The limitation period under the ‘old law’: unregistered land and registered land where adverse possession

is completed before 13 October 2003.

In most cases, where a limitation period is applicable at all (i.e. not in respect of registered titles under the LRA 2002), that period will be 12 years from the moment of adverse possession by the claimant (section 15 of the Limitation Act 1980). If the current paper owner is a tenant of the land under a lease, the period of limitation against the tenant is 12 years. The period for the landlord is also 12 years, but does not start to run until the original term of the tenancy has ended (Schedule 1, paragraph 4 of the Limitation Act 1980).

Adverse possession under the LRA 2002

There is no period of limitation. The adverse possessor may apply for registration of title after ten years’ adverse possession and this triggers a notice to the registered proprietor. In all but three exceptional cases, the registered proprietor will have a further two years to remove the adverse possessor simply by asserting his title.

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The substantive law: an intention to possess

The requirement that the adverse possessor must ‘intend’ to possess the land adversely to the exclusion of all others to some extent is artificial. For example, some adverse possessors may appreciate fully that the land is not theirs and act deliberately to exclude the world; others may believe honestly that the land is theirs already, and so do not for one moment think they are excluding the ‘true’ owner; others still may have formulated no intention at all, but simply treat the land as their own because it is there. In other words, we are not looking here for ‘intention’ in the traditional legal sense of a mens rea, either objectively or subjectively established. What is required is evidence that the adverse possessor, for whatever reason, had an intention to possess the land and put it to his own use, whether or not he also knew that some other person had a claim or right to the land.

The substantive law: physical possession

As well as demonstrating an intention to possess the land, the adverse possessor must also demonstrate a physical assumption of possession. Before the decision in Pye, much academic and judicial ink had been spilt in trying to determine in what circumstances possession could be deemed to have been taken and when it also was ‘adverse’ to the paper owner. So, there was much discussion of the apparent differences between discontinuance of possession by the paper owner followed by possession by the claimant, and dispossession of the paper caused by the possession of the claimant. However, in Pye, Lord Browne-Wilkinson explained why too much analysis was a bad thing. In his view, ‘much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible … The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner’. In other words, we should not seek to overconceptualise what is ‘adverse’ and what is not, but ask ourselves the simple ordinary question: is the claimant in possession of the land without the permission of the landowner.

Stopping the clock of limitation in unregistered land and registered land governed by the LRA 1925

A successful action for possession will necessarily ‘stop the clock’, as will an acknowledgment of the paper owner’s title in writing and the payment of rent (sections 29 and 30 of the Limitation Act 1980). Once the limitation period has expired (where applicable), both the paper owner’s right to sue and his title are extinguished by operation of statute (section 17 of the Limitation Act 1980). After this date, the conventional wisdom is that no

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acknowledgment, written or otherwise, and no payment or rent or other sum, can revive the paper owner’s title: Nicholson v. England (1962), but see Colchester BC v. Smith (1992). The same principles can stop the ten-year period under the LRA 2002.

The effect of a successful claim of adverse possession of unregistered land and registered land governed by the LRA 1925

On the paper owner generally: successful adverse possession prevents the paper owner suing and effectively extinguishes his title (section 17 of the Limitation Act 1980). On the adverse possessor in unregistered land: conventional wisdom is that a successful adverse possession does not transfer title to the claimant. The claimant may sell or otherwise deal with the land because the absence of title deeds is dealt with by appropriate conveyancing devices (e.g. statutory declaration, title insurance).

On the adverse possessor in registered land governed by the LRA 1925: the paper owner will be the registered proprietor but is deemed to hold his estate in the land on trust for the claimant until such time as the adverse possessor can apply for rectification of the register and registration as proprietor (section 75 of the LRA 1925).

On the adverse possessor claiming against a tenant: in unregistered land, it seems the displaced tenant remains in a relationship with his landlord and can surrender his lease, so allowing the landlord to take early action against the claimant to evict. In registered land, recent authority suggests that the adverse possessor steps into the shoes of the tenant (section 75 of the LRA 1925; Kato), so allowing the claimant to remain in possession for the remainder of the tenant’s full term and even to enjoy rights granted to the tenant – such as the right to extend the lease.

Adverse possession under the Land Registration Act 2002: being where the 12-year period of adverse possession was not completed before 13 October 2003

Under the new scheme, there will be no period of limitation and no sense in which a registered proprietor loses title merely because another person has adversely possessed the land for a fixed period of time (section 96 of the LRA 2002). The onus shifts from the true owner to the adverse possessor. Where a person claims to have completed at least ten years’ adverse possession (and this is to be assessed by the traditional rules: Schedule 6, paragraph 11 of the LRA 2002), that person may apply to the registrar to be registered as proprietor. This application will trigger notice to the current registered proprietor (and certain other persons: Schedule 6, paragraph 2 of the LRA 2002) and the

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registered proprietor then has three options: consent, objection or ask for the application of the statutory two-year rule. If the two-year rule is requested, the adverse possessor cannot be entered as new registered proprietor unless either of three exceptional grounds is established (estoppel where the adverse possessor ought to be registered; or where the adverse possessor is ‘for some other reason’ entitled to be registered as proprietor; or where there is a boundary dispute). During the two-year period, absent the exceptional circumstances, the proprietor may evict the possessor simply by proving title. If the adverse possessor is not evicted during the two-year period, he may reapply for registration and must be so registered.

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FURTHER READING

General matters and Chapter 1: An introduction to modern land law

Battersby, G. ‘Informally created interests in land’, in Bright, S. and Dewar J. (eds) Land Law: Themes and Perspectives. Oxford: OUP, 1998

Jackson, P. and Wilde, D. (eds) The Reform of Property Law. Aldershot: Dartmouth, 1997

Dixon, M. ‘Proprietary and non-proprietary rights in modern land law’, in Tee, L. (ed.) Essays in Land Law. Devon: Willan, 2002

Chapter 2: Registered land

Cooke, E. ‘The Land Registration Bill’ [2002] Conv 11

Dixon, M. ‘The Reform of Property Law and the Land Registration Act 2002: A Risk Assessment’ [2003] 67 Conv 136

Harpum, C. and Bignall, J. Land Registration. London: Jordans, 2004

Law Commission. Land Registration for the Twenty-First Century: A Conveyancing Revolution, Report No. 271. London: HMSO, 2001

Chapter 3: Unregistered land

Harpum, C. ‘Midland Bank Trust Co Ltd v Green’ [1981] CLJ 213

Wade, H.W.R. ‘Land charge registration revisited’ [1956] CLJ 216

Chapter 4: Co-ownership

Ferris, G. and Battersby, G. ‘The impact of the Trusts of Land and Appointment of Trustees Act 1996 on purchasers of registered land’ [1998] Cov 168; and see the reply by Dixon, M. [2000] Conv 267

Glover, N. and Todd, P. ‘The myth of common intention’ (1996) 16 LS 325

Hopkins, N. ‘The Trusts of Land and Appointment of Trustees Act 1996’ [1996] Conv 267

Stack v Dowden (2007) 123 LQR 511

Stack v Dowden [2007] Conv. 352 et seq

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Futher Reading

Kenny, P. The Trusts of Land and Appointment of Trustees Act 1996. London: Sweet & Maxwell, 1997

Law Commission. Cohabitation: The Financial Consequences of Relationship Breakdown Report No. 307 of 31 July 2007

Lawson, A. ‘The things we do for love: detrimental reliance and the family home’ (1996) 16 LS 218

Ross-Martyn, J.G. ‘Co-Owners and their rights of occupation’ [1996] Conv 87

Tee, L. ‘Severance revisited’ [1995] Conv 105

Chapter 6: Leases

Bridge, S. ‘Former tenants, future liabilities and the privity of contract principle: the Landlord and Tenant (Covenants) Act 1995’ [1996] 55 CLJ 313

Bridge, S. ‘Landlord and tenant law’, in Tee, L. (ed.) Essays in Land Law. Devon: Willan, 2002

Bridge, S. ‘Putting it right: the Law Commission and the condition of tenanted property’ [1996] Conv 342

Dixon, M. ‘The rise of the feudal phoenix’ [2000] CLJ 22

Hill, J. ‘Intention and the creation of proprietary rights: are leases different?’ (1996) 16 LS 200

Smith, P.F. ‘Billson v Residential Apartments Ltd’ [1992] Conv 273

Sparkes, P. ‘Prudential Assurance Co Ltd v London Residuary Body’ (1993) 108 LQR 93

Thornton, R. ‘Enforceability of leasehold covenants: more questions than answers’ (1991) 11 LS 47

Walter, P. ‘The Landlord and Tenant (Covenants) Act 1995: a legislative folly’ [1996] Conv 432

Chapter 7: The law of easements and profits

Barnsley, D.G. ‘Equitable easements 60 years on’ (1999) 115 LQR 89

Luther, P. ‘Easements and exclusive possession’ (1996) 16 LS 51

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Futher Reading

Tee, L. ‘Metamorphoses and s 62 of the Law of Property Act 1925’ [1998] Conv 115

Law Commission, Consultation Paper (CP No. 186) on Easements, Covenants and Profits a Prendre, March 2008

Chapter 8: Freehold covenants

Martin, J. ‘Remedies for breach of restrictive covenants’ [1996] Conv 329

Scamell, E.H. Land Covenants. London: Butterworths, 1996

Law Commission, Consultation Paper (CP No. 186) on Easements, Covenants and Profits a Prendre, March 2008

Chapter 9: Licences and proprietary estoppel

Battersby, G. ‘Contractual and estoppel licenses as proprietary interests in land’ [1991] Conv 36

Battersby, G. ‘Informal transactions in land: estoppel and registration’ (1995) 58 MLR 637

Bright, S. ‘Bright: the third party’s conscience in land law’ [2000] Conv 388

Baughten, S. ‘Estoppels over land and third parties: an open question?’ (1994) 14 LS 147

Cooke, E. ‘Estoppel and the protection of expectations’ (1997) 17 LS 258

Dixon, M. ‘Proprietary estoppel and formalities in land law and the Land Registration Act 2002: a theory of unconscionability’, in Cooke, E. (ed.) Modern Studies in Property Law, Vol. 2. Hart Publishing, 2003. pp. 165–182

Howard, M. and Hill, J. ‘The informal creation of interests in land’ (1995) 15 LS 356

Chapter 10: The law of mortgages

Bamforth, N. ‘Lord Macnaughten’s puzzle: the mortgage of real property in English law’ [1996] CLP 207

Capper, D. ‘Undue influence and unconscionability’ (1998) 114 LQR 479

Dixon, M. ‘Combating the mortgagee’s right to possession: new hope for the mortgager in chains?’ (1998) 18 LS 279

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