Экзамен зачет учебный год 2023 / ELC, Land Registration II

The machinery for giving effect to adverse possession: summary of

recommendations

10.78We provisionally recommend that—

(1)the trust should no longer be used as a means of giving effect to the rights of an adverse possessor who has barred the estate of the registered proprietor;

(2)where an adverse possessor is entitled to be registered as proprietor, he or she should be registered with an absolute, possessory or qualified title;

(3)where the title barred is that of a tenant under a lease or a life tenant under a settlement or trust of land—

(a)the adverse possessor should normally be registered with a qualified freehold title;

(b)the qualification should be that he or she takes subject to the estate or interest of any person or persons entitled on the termination of the lease or the life interest; and

(4)where the title barred is that of a tenant under a lease, the freehold (or other) title of any person entitled to the reversion on that or any superior lease should not be closed or otherwise affected by the registration of the adverse possessor with a freehold title.

We ask whether readers agree with us.

PRESCRIPTION

Introduction

10.79As we have indicated, in relation to easements and profits à prendre, acquisition through long user is based upon prescription - an assumption that the user had a lawful origin - rather than adverse possession, which accepts that a person may acquire title by a wrongful possession. The “lawful” character of prescription is reflected in the requirement that user must be of right and, in particular, that it must not be forcible, secret or permissive.204 Whereas adverse possession extinguishes the former owner’s title leaving the squatter with title by default,205 prescription operates to create a wholly new right in favour of the claimant.206 Prescription can only be asserted “by or on behalf of a fee simple owner against a fee simple owner”.207

10.80English law indulges in the extraordinary luxury of having not just one, but three, distinct methods of acquiring easements and profits à prendre by prescription. Those three methods are—

204“An enjoyment must neither be vi, precario nor clam, it must be open”: Solomon v Mystery of Vintners (1859) 4 H & N 585, 602; 157 ER 970, 977; per Bramwell B.

205Because no other person has a better right to possess the land.

206See Sir Robert Megarry & Sir William Wade, The Law of Real Property (5th ed 1984) p 875.

207Simmons v Dobson [1991] 1 WLR 720, 723, per Fox LJ.

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(1)prescription at common law;

(2)prescription under the Prescription Act 1832; and

(3)prescription under the doctrine of lost modern grant.

Prescription other than under the Act of 1832 rests on a succession of fictions.208 Like any body of law which is based upon fictions, the principles which govern prescription are neither logical nor rational. Once reality is disregarded for some purposes, its retention in relation to other issues is necessarily arbitrary.

Prescription at common law

10.81At common law a right will be presumed to have a lawful origin only if user has been from time immemorial,209 which in law, means from 1189.210 In practice, the rigour of this rule has long been softened by a rebuttable presumption of immemorial user from 20 years’ user as of right. There is no requirement that the person claiming the easement should be exercising it at the time when it is called in issue. Although usually pleaded, a claim to prescription at common law is vulnerable. For example, it will be rebutted if it can be shown that “at some time since 1189 the right could not or did not exist”,211 or that there had been unity of both ownership and occupation of the dominant and servient tenements at some time since 1189.212 In practice, claimants will normally base a prescriptive claim upon the doctrine of lost modern grant, explained below,213 if they cannot rely upon the Prescription Act 1832. Although it has been said that the claim to prescription at common law “adds nothing to the claim of presumed lost grant”, and that “they stand or fall together”,214 this is not strictly correct. As we explain below, a claim based on lost modern grant cannot be challenged because it can be shown that the right did not exist at some date after 1189.215

Prescription under the Prescription Act 1832

10.82For the purposes of this Report, it is unnecessary to comment in any detail on the

208As Cockburn CJ explained in his celebrated account of the development of the law in Bryant v Foot (1867) LR 2 QB 161, 181, “as parliament failed to intervene to amend the law, the judges set their ingenuity to work, by fictions and presumptions, to atone for the supineness of the legislature...”.

209See Sir Thomas Littelton’s Tenures, § 170, “from time whereof the memory of men runneth not to the contrary” (quoted from the edition of E Wambaugh (1903), p 82).

210For accounts of the law on common law prescription, see Sir Robert Megarry & Sir William Wade, The Law of Real Property (5th ed 1984) pp 875 - 876; J Gaunt & P Morgan, Gale on Easements (16th ed 1996) paras 4-03 - 4-05.

211Sir Robert Megarry & Sir William Wade, The Law of Real Property, above, at p 876.

212Ibid. Unity of ownership without unity of possession will not, it seems, suffice: see J Gaunt & P Morgan, Gale on Easements, above, para 4-05.

213See para 10.84.

214Mills v Silver [1991] Ch 271, 278, per Dillon LJ.

215See para 10.84.

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Prescription Act 1832.216 The manner in which the Act operates can be exemplified by the provisions on rights of way or to any watercourse. If a person can show that he or she has enjoyed a right of way as of right and without interruption217 for 20 years, his or her claim to an easement cannot be defeated by proof that user of the right did not commence until after 1189. However, it can be defeated in any other way, such as proof that the owner of the servient tenement lacked the capacity to grant such an easement.218 If the claimant can prove user of the right and without interruption for 40 years, the right “shall be deemed absolute and indefeasible”, and can be defeated only by proof that the right was enjoyed by written consent.219 It is therefore immaterial that (for example) there was no capable grantor during that period. There are similar provisions for profits à prendre, where the corresponding periods of user are 30 and 60 years respectively,220 and special provisions dealing with rights of light.221

10.83There is a striking feature about the Act. The fact that a person has exercised the right without interruption for the period laid down by the statute does not of itself confer on him or her any title to it.222 A person who seeks to avail themselves of the Act must—

(1)be a party to some proceedings in which the right is called into issue;223 and

(2)show that he or she has enjoyed the right for the requisite statutory period prior to those proceedings.224

What is important about this is that a claim brought under the Prescription Act 1832 will not lie if the right has at any time ceased to be used in the relevant period prior to the bringing of such action.225 It has been said of the prescription of a right of way or watercourse under the Act226 that—

216For accounts of the Act, see Sir Robert Megarry & Sir William Wade, The Law of Real Property, above, pp 878 - 889; J Gaunt & P Morgan, Gale on Easements, above, paras 4-17 and following. In its 14th Report, The Acquisition of Easements and Profits by Prescription (1966) Cmnd 3100, para 40, the Law Reform Committee commented that “[t]he Prescription Act 1832 has no friends. It has long been criticised as one of the worst drafted Acts on the Statute Book”.

217For these purposes, “interruption” has a highly technical meaning, which it is unnecessary to consider in any detail here: see Prescription Act 1832, s 4. Interruption of the right for a year (but not for less than a year) is fatal to a claim under the Act. For accounts of the law, see Sir Robert Megarry & Sir William Wade, The Law of Real Property, above, at p 880; and J Gaunt & P Morgan, Gale on Easements, above, paras 4-32 - 4-34.

218Prescription Act 1832, s 2.

219Ibid.

220Ibid, s 1.

221Ibid, s 3: a mere 20 years’ enjoyment of light gives an absolute and indefeasible right.

222“There is what has been described as an inchoate right”: Colls v Home and Colonial Stores [1904] AC 179, 190, per Lord Macnaghten. See above, paras 3.37, 3.38.

223For these purposes, a hearing before the registrar under Land Registration Rules 1925, r 298, is treated as a suit or action, and rights acquired under the Prescription Act 1832 can therefore be established in such a hearing. It is intended to clarify this point in any legislation.

224This is the result of the words “the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question” in the Prescription Act 1832, s 4.

225This is subject to the technical doctrine of “interruption”: see above, para 10.82.

226That is, under s 2.

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no actual user can be sufficient to satisfy the statute, unless during the whole of the statutory period (whether acts of user be proved in each year or not) the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement, the fact that a continuous right to enjoyment is being asserted, and ought to be resisted if such right is not recognised, and if resistance to it is intended.227

It follows that the servient owner ought always to be aware of conduct amounting to prescription of such a right under the Act.

Prescription by lost modern grant

10.84The doctrine of lost modern grant was developed “because of the unsatisfactory nature of common law prescription”,228 and in particular, to prevent any challenge to the claim on the basis that the right must have come into existence after 1189. Although the doctrine was finally established by the House of Lords in Dalton v Henry Angus & Co,229 because of the differing views that were expressed during the passage of that case, its precise basis was, and to some extent remains, unclear. The doctrine was clarified by the Court of Appeal in Tehidy Minerals Ltd v Norman,230 in which the Court stated that—

where there has been upwards of 20 years’ uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason such as incapacity on the part of the person or persons who might at some time before the commencement of the 20-year period have made a grant, the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made.231

The Court went on to hold that the legal fiction applied to profits à prendre in the same way as it did to easements and that it could no more be rebutted by circumstantial evidence that no grant was made than it could by express evidence.

10.85There are several striking features about the doctrine. First, the presumption of lost modern grant cannot be rebutted by proof that no grant was made, however improbable such a grant might have been. However, it can be rebutted by showing that any grant was impossible because the presumed grantor lacked capacity, or because it would have contravened a statute.232 There are, in other words, limits to the fiction. The court will not, for example, “presume a lost Act of Parliament”.233 However, as

227Hollins v Verney (1884) 13 QBD 304, 315, per Lindley LJ (giving the judgment of the Court of Appeal).

228Simmons v Dobson [1991] 1 WLR 720, 723, per Fox LJ.

229(1881) 6 App Cas 740.

230[1971] 2 QB 528.

231Ibid, at p 552, per Buckley LJ giving the judgment of the Court.

232See Neaverson v Peterborough Rural District Council [1902] 1 Ch 557; Hanning v Top Deck Travel Group Ltd (1993) 68 P & CR 14.

233Neaverson v Peterborough Rural District Council, above, at p 574, per Collins MR.

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these limits are not defined by any obvious logic, they cannot be defined with any

certainty.

10.86Secondly, one of the main reasons why claimants have recourse to the doctrine (rather than proceeding under the Prescription Act 1832) is because they cannot show that the right has not been in uninterrupted use in the 20 years prior to the proceedings in which it was in issue.234 This may result in a purchaser of land discovering that he or she is bound by an easement or profit à prendre, already prescribed, that has not been used for many years and the existence of which is not apparent from an inspection of the land. While he or she may have a claim in damages against the vendor of the land on the implied covenants for title,235 this may be an inadequate substitute for the land free of the incumbrance. We have explained in Part V of this Report that although an easement can be established by 20 years’ user, the mere non-user of the right for a period of 20 years thereafter will not raise any presumption that the easement has been abandoned.236

Why the present law needs to be changed to accommodate reform of the land registration system

10.87We doubt whether any informed person would suggest that the present law on prescription - or indeed on easements and profits à prendre more generally - is satisfactory.237 A full review of the law necessarily lies outside the scope of the present Report. However, we consider that it is necessary (or at least highly desirable) to make some modifications to the law on prescription as it applies to registered land to accommodate the changes that will result from the introduction of electronic conveyancing. We would emphasise that our proposals can be no more than interim measures until the reform of the law of easements and profits à prendre can be considered more fully.

10.88We have already provisionally recommended that—

(1)the status of easements and profits à prendre acquired or in the process of acquisition by prescription as overriding interests should be made explicit;238

(2)easements which are expressly created should not be capable of existing as overriding interests;

234See, eg Tehidy Minerals Ltd v Norman [1971] 2 QB 528; Mills v Silver [1991] Ch 271.

235Assuming that full title guarantee is given: see Law of Property (Miscellaneous Provisions) Act 1994, s 3(1). Even if s 3(1) is applicable, the vendor may not be liable if he or she did not know of the right and could not reasonably have done so: ibid. If an easement or profit has not be asserted for many years, this could be the case.

236See above, para 5.21. We have provisionally recommended that there should be a presumption of abandonment as regards an easement or profit à prendre which is an overriding interest and which cannot be shown to have been exercised for 20 years: see above, para 5.22.

237The Law Reform Committee, in its 14th Report, The Acquisition of Easements and Profits by Prescription (1966) Cmnd 3100, recommended that it should cease to be possible to acquire easements and profits à prendre by prescription. In the alternative, it proposed a new system for the acquisition of easements by prescription which would have eliminated many of the unsatisfactory features of the present law. The recommendations were not implemented.

238See above, paras 5.17, 5.24.

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(3)in the short term, easements which were expressly created would have to be registered, and would otherwise take effect as minor interests which would not bind a purchaser taking under a registered disposition of the land burdened; and

(4)in the longer term, it would be impossible to create easements expressly except by registering them.239

The further recommendations that we make are intended both to complement these proposals and to be consistent with the provisional recommendations that we have made in relation to adverse possession.

10.89The principal concerns that underlie our proposals are as follows—

(1)If registration is to be an integral part of the creation of easements and profits

à prendre, we cannot see how the doctrine of lost modern grant could continue to apply. Nor do we think that it should. The concept of “a lost modern registration” is one that we cannot contemplate with equanimity. Indeed its existence would undermine one of the principal objectives of this Report, which is to ensure the registration of rights that are expressly created. While we think that the courts would almost certainly reach such a conclusion, we consider that the point should be put beyond doubt.

(2)Purchasers may find themselves bound by rights which they could not have discovered by reasonable enquiries and inspections. This is because, as we have explained above,240 it is possible to claim an easement or profit à prendre on the basis of prescription at common law or by lost modern grant even though the right is not being exercised at the time of the claim and has not been for many years.

Proposals for reform

10.90We consider that the most logical way to deal with these concerns is as follows—

(1)Any rights acquired by common law prescription must necessarily have been acquired already. They should therefore be dealt with as vested rights in the manner proposed below.241 However, although no new claim could be brought on the basis of common law prescription, this would be without prejudice to any claim brought under the Prescription Act 1832. It is necessary to make that saving. As a matter of form, the Act of 1832 could be regarded as removing possible objections to a claim based upon common law prescription, rather than as creating a free-standing statutory form of prescription.

(2)Subject to a saving for vested rights, it should cease to be possible for the future to acquire any rights by lost modern grant over registered land. Although the

introduction of a system under which rights have to be registered to create them is still some way off, we consider that this exercise presents an

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appropriate opportunity to disapply the doctrine to registered land, and

obviates the need for primary legislation at some later date.

10.91It follows that the only way in which an easement or profit à prendre could be acquired by prescription over registered land after any legislation was brought into force would be under the Prescription Act 1832. Although this Act has numerous unsatisfactory features, rights acquired or in course of acquisition under this Act are more readily discoverable by any intending purchaser of the land burdened by them. First, the servient owner should normally be aware of the exercise of the right (and should therefore disclose it to any purchaser unless it is obvious on a reasonable inspection of the land). Secondly, subject to the comparatively limited doctrine of interruption,242 the right claimed must be asserted up to the time that it is in issue in court proceedings or in a hearing before the registrar.243 Rights that were at one time exercised but have ceased to be for more than a year will not ground a claim under the Act. We would stress that this provisional recommendation is in no sense an endorsement of the Prescription Act 1832. It can only provide a stop-gap until the law of prescription can be reviewed as a whole.

10.92The approach which we provisionally recommend is therefore similar in effect (though not precisely analogous) to that which we have proposed in relation to adverse possession. Under our provisional proposals on adverse possession, even where a squatter had extinguished the rights of the registered proprietor, his or her rights would not be binding on a purchaser unless he or she was in actual occupation of the land in question.244 A person claiming an easement or profit à prendre by prescription would be unable to assert that right unless he or she were exercising it up to the time of the claim, subject only to the limited doctrine of interruption. In most (if not all) cases, an intending purchaser would be aware of the right, either because it would be apparent on a reasonable inspection of the land, or because the vendor would have disclosed the existence of the right.245 A failure to disclose the right might entitle the purchaser to terminate the contract prior to completion on the grounds of a substantial nondisclosure,246 or after completion, by an action for damages on the covenants for title.247

10.93Where a prescriptive right had already been acquired by common law prescription or lost modern grant at the time when any legislation is brought into force, it would be unaffected by our provisional recommendations. The onus of proving that the right had

242See above, para 10.82.

243For hearings before the registrar, see above, para 10.83. It should be noted that public rights of way follow a similar model to that of the Prescription Act 1832. Under the Highways Act 1980, s 31, there is a presumption that a right of way has been dedicated to the public as a highway if it has been used without interruption for 20 years. That period of 20 years “is to be calculated retrospectively from the date when the right of the public to use the way is brought into question...”: ibid, s 31(2).

244See above, paras 5.49 and following.

245A vendor is obliged to disclose a latent defect in title, which can include an easement: see Yandle & Sons v Sutton [1922] 2 Ch 199.

246Ibid. If the disclosure were not substantial, then subject to the terms of any conditions of sale, the purchaser might be entitled to some abatement of the price: see, eg Shepherd v Croft [1911] 1 Ch 521.

247See above, para 10.86.

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been acquired by that date would rest on the claimant. This proposal is, however, subject to the qualification that we have already provisionally recommended in Part V of this Report, namely, that in relation to an easement or profit à prendre that took effect as an overriding interest, there should be a rebuttable presumption of abandonment, if the party asserting the easement or profit could not demonstrate that he or she had exercised the right within the previous 20 years.248 This reflects one of our main concerns about prescription at common law and under the doctrine of lost modern grant. The usual reason why a claimant relies upon them is because he or she has not been exercising the right for an uninterrupted period prior to the matter coming before a court. They may therefore be undiscoverable by any purchaser of the land. The practical effect of our provisional recommendations taken together would be that few (if any) claims based upon lost modern grant or common law prescription would be asserted within 20 years of the legislation coming into force.

10.94We therefore provisionally recommend that—

(1)after the coming into force of any legislation, it should not be possible to claim an easement or profit à prendre by prescription except under the provisions of the Prescription Act 1832;

(2)without prejudice to such a claim, it would cease to be possible to assert or claim an easement or profit à prendre on the basis of common law prescription or lost modern grant; but

(3)these proposals would be without prejudice to any easement or profit

à prendre that could be shown by the claimant to have been acquired by common law prescription or lost modern grant prior to the coming into force of the legislation.

We ask whether readers agree.

SUMMARY AND KEY ISSUES

10.95In this Part we consider both the law of adverse possession of land and the principles which govern the prescription of easements and profits à prendre as these apply to registered land.

248 See above, para 5.22.

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Adverse Possession

The application of principles of adverse possession to registered land

10.96We begin by examining the nature of adverse possession and the justifications given for it. The four most important justifications for adverse possession are—

(1)it protects defendants from stale claims and encourages plaintiffs not to sleep on their rights;

(2)it prevents land ownership and the reality of possession becoming wholly divorced;

(3)in cases of mistake, it can prevent hardship; and

(4)it means that there can be a short root of title for dealings in unregistered land (where title is relative and depends ultimately upon possession), which facilitates and cheapens the investigation of title to such land.

The fourth reason is the primary justification for adverse possession. However, it can

normally have no application to registered land.

10.97Our provisional conclusion is that the principles of adverse possession have an essential role to play in relation to unregistered land, principally because they facilitate conveyancing. However, we consider that their unqualified application to registered land cannot be justified. We state that where title is registered, the basis of title is primarily the fact of registration rather than possession. Registration confers title because the registration of a person as proprietor of land of itself vests in him or her the relevant legal estate (whether freehold or leasehold). The main weakness of the present law is that the principles which determine whether a registered proprietor will lose his or her title by adverse possession were developed for a possession-based system of title and not one founded on registration.

10.98We consider whether there are any circumstances which are so compelling that it should be possible for the fact of registration to be overridden by possession. Having regard to the reasons which justify adverse possession that we have explained above, we conclude that there are just four—

(1)where the registered proprietor has disappeared and cannot be traced;

(2)where there have been dealings “off the register”;

(3)in some cases where the register is not conclusive (such as in relation to boundaries and short leases which take effect as overriding interests); and

(4)where entry into possession has come about under a reasonable mistake as to rights.

10.99We therefore provisionally recommend that—

(1)the law of adverse possession as it applies to registered land should be recast to reflect the principles of title registration; and

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(2)its application should be restricted to those cases where it is essential to ensure the marketability of land or to prevent unfairness.

A new scheme of adverse possession

10.100 We then make detailed proposals for a new scheme of adverse possession. We provisionally recommend that—

(1)adverse possession should no longer, of itself, bar the title of a registered proprietor;

(2)only the closure of that proprietor’s title on the register would have that effect, and it would do so for all purposes; and

(3)the principles of adverse possession applicable to registered land should be as set out in the following paragraphs.

10.101 First, there should be a new system to enable an adverse possessor to seek registration as proprietor, and it should operate as follows—

(1)Where a person had been in adverse possession of land with a registered title for more than 10 years, he or she would be entitled to apply to be registered as proprietor of that land.

(2)On receipt of that application, the Registry would be required to serve a notice on the registered proprietor, any proprietor of a registered charge affecting the title in question, and any person who, from any entry on the register, appears to have a right to possession of the land, informing each of them of the application for registration.

(3)If the registered proprietor, chargee or person entitled to possession failed to object within two months of service of the notice, the registrar would register the adverse possessor as registered proprietor and would close the title of the existing proprietor.

(4)If the registered proprietor or chargee objected to the registration, the application would be dismissed unless the adverse possessor could show that—

(a)the proprietor was estopped by his or her conduct from objecting to his or her registration;

(b)he or she had some independent right to the land that entitled him or her to be registered as proprietor; or

(c)he or she had entered into adverse possession under a mistaken belief, reasonably held, as to his or her rights.

(5)If the adverse possessor raised any of these matters, the issue would be resolved by the registrar, unless he referred it to the court at any time prior to his making a final adjudication. There would be a right of appeal from his decision.

(6)If the adverse possessor established that he or she had entered under a

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