Экзамен зачет учебный год 2023 / Dixon, Principles of Land Law

Principles of Land Law

Physical possession, adverse to the paper owner

The claimant must take adverse possession of the land as a matter of fact, either in consequence of the ‘dispossession’ of the paper owner or following ‘discontinuance’ of possession by him.

Dispossessionoccurswherethepaperowneriseffectivelydrivenoutbyanother, although it is clear that the paper owner does not need to know that they have been dispossessed. Discontinuance occurs where the paper owner abandons the land, but this is not to be presumed from mere lack of use by the paper owner. Thedegreeofphysicalpossessionrequiredwillvarywiththetypeoflandinvolved. There is no requirement that the adverse possession must actually inconvenience the paper owner, but possession will not be taken to be established from acts that are equivocal in nature or temporary in purpose. Following Buckinghamshire CC v Moran (1990), there is no presumption of a licence in favour of an adverse possessor(sodestroyingadversepossession)justbecausehispossessionisconsistent with the paper owner’s planned use of the land.

Stopping the clock of limitation

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: ss 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: s 17 of the Limitation Act 1980. After this date, the conventional wisdom is that no 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 10 year period under the LRA 2002.

The effect of a successful claim of adverse possession of unregistered land and registered land pre-LRA 2002

On the paper owner generally

Successful adverse possession prevents the paper owner suing and effectively extinguishes his title (s 17 of the Limitation Act 1980).

On the adverse possessor in unregistered land under the LRA 1925

Conventional wisdom is that a successful adverse possession does not transfer title to the claimant. The adverse possessor will not be a purchaser for value of a legal or equitable interest for the purpose of the LCA 1972 or the doctrine of notice. The claimant may sell or otherwise deal with the land because the absence

410

Adverse Possession

of title deeds is dealt with by appropriate conveyancing devices (for example, statutory declaration, title insurance).

On the adverse possessor in registered land

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 (s 75 of the LRA 1925). In the meantime, the possessor’s rights will be protected as an overriding interest under s 70(1)(f) of the LRA 1925. Recent authority suggests that the effect is similar to, if not equivalent to, a transfer of title from paper owner to claimant (a statutory conveyance).Again, however, the squatter cannot be regarded as a purchaser of land for the purposes 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 (s 75 of the LRA 1925; Kato), so allowing the claimant to remain in possession for the remainderofthetenant’sfulltermandeventoenjoyrightsgrantedtothetenant— such as the right to extend the lease.

The substantive nature of the squatter’s rights

Pending completion of the period of limitation, the adverse possessor has certain rights in the land, even though these can be completely defeated by the paper owner within the period. An adverse possessor awaiting completion of the period may transfer such rights as they do have to another person either by will or inter vivos. The period so transferred may then be added to any period successfullycompletedbythelegatee/assigneeinordertomake12years’adverse possession in total.

Adverse possession under the Land Registration Act 2002

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 (s 96 of the LRA 2002). The onus shifts from the true owner to the adverse possessor. Thus, where a person claims to have completed at least 10 years’ adverse possession (and this is to be assessed by the traditional rules: Sched 6, para 11 of the LRA 2002),

411

Principles of Land Law

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, Sched 6, para 2 of the LRA 2002) and, if there is objection from suchperson,theadversepossessorcannotbeenteredasnewregisteredproprietor unless eitherofthreeexceptional groundsare established. These are where (Sched 6, para 5 of the LRA 2002):

…it would be unconscionable for the current proprietor to dispossess the adverse possessor because of an estoppel and the circumstances are such that 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 concerning adjoining land and for at least 10 years the applicant reasonably believed the disputed land to be his, provided that the disputed land had been registered land for more than one year prior to the application.

However, assuming none of these grounds to be made out (and we must await litigation for their meaning to be elucidated), the ‘true’ registered proprietor will then have two further years following the application by the adverse possessor to recover possession of the land. If he does not so recover, then the adverse possessor may reapply at the expiry of the two year period and he willbeenteredasproprietor.Ifthenregisteredasproprietor,theadversepossessor takes the land subject to any interests affecting the estate, except any registered charge (unless registration is because of the exceptional situations outlined above in para 5): Sched 6, para 9 of the LRA 2002.

412

FURTHER READING

General Matters

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

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

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

Chapter 2: Registered Land

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

Law Commission,Land Registration for the 21st Century: A Conveyancing Revolution,

Report No 271, 2001, London: HMSO

Chapter 3: Unregistered Land

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

Wade, HWR, ‘Land charge registration revisited’ [1956] CLJ 216

Chapter 4: Co-ownership

Dixon, M, ‘Midland Bank v Cooke’ [1997] Conv 67

Ferris, G and Battersby, G, ‘The impact of the Trusts of Land and Appointment of Trustees Act 1996 on purchasers of registered land’ [1998] Conv 168; and see the reply of 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 411

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

Law Commission Working Paper on the Rights of Homesharers (expected June 2002)

413

Further Reading

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

Ross-Martyn, JG, ‘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, 2002, Devon: Willan

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

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

Law Commission, Termination of Tenancies by Physical Re-entry: A Consultative Document, 1998, London: HMSO

Smith, PF, ‘Billson v Residential Apartments Ltd’ [1992] Conv 273

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

Thornton,R,‘Enforceabilityofleaseholdcovenants:morequestionsthananswers’

(1991) 11 LS 47

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

Bruton v London and Quadrant Housing Trust [1999] 3 WLR 150; [2000] CLJ 22

Chapter 7: The Law of Easements

Barnsley, DG, ‘Equitable easements 60 years on’ (1999) 115 LQR 89

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

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

414

Further Reading

Chapter 8: Freehold Covenants

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

Scamell, EH, Land Covenants, 1996, London: Butterworths

Chapter 9: Licences and Proprietary Estoppel

Battersby, G, ‘Contractual and estoppel licences 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

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 mortgagor in chains?’ (1998) 18 LS 279

Dixon, M and Harpum, C, ‘Fraud, undue influence and mortgages of registered land’ [1994] Conv 421

Haley, M, ‘Mortgage default: possession, relief and judicial discretion’ (1997) 16 LS 483

Law Commission, Land Mortgages, Report No 204, 1991, London: HMSO

Roplaigeach v Barclays Bank [1999] 3 WLR 17; [1999] CLJ 281

415

Further Reading

Chapter 11: Adverse Possession

Cooke, E, ‘Adverse possession, problems of title in registered land’ (1994) 14 LS 1

Dockray, M, ‘Why do we need adverse possession?’ [1985] Conv 272

Harpum, C, ‘Buckinghamshire County Council v Moran’ [1990] CLJ 23

Tee, L, ‘Adverse possession and the intention to possess’ [2000] Conv 113

Harpum, C and Radley-Gardner, O, ‘Adverse possession and the intention to possess—a reply’ [2001] Conv 155

See reforming provisions of the Land Registration Act 2002

Human rights and Property Law

Howell, J, ‘The Human Rights Act 1998’, in Cooke, E (ed), Modern Studies in Property Law, 2001, London: Hart

Halstead, P, ‘Human property rights’ [2002] Conv 153

416

INDEX

417

Index

418

Index

419