Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

implication of permission may be justified (even after the 1980 Act) on the facts of particular cases99 such as Pulleyn v. Hall Aggregates.100 These cases are few and implied licence is an improbable defence.101

4.Payment and acknowledgement

[10.15] These acts also prevent possession being adverse.102 Payment for land, like part payment of a debt, is an admission of the right of the recipient,103 and thus of the owner’s title.104 Cessation of payments does not necessarily set the limitation period running immediately,105 for example when a promissory estoppel prevents the collection of rent.106 Once the limitation period has run, payment of rent does not revive the title barred.107 Acknowledgement of the title of the paper owner will also prevent adverse possession by the person making it and his successors,108 but for sound reasons109 acknowledgments must occur in writing.110 Examples are payment of rent,111 a recital of the true owner’s title in a deed, an offer to buy the property,112 and signature of a petition opposing sale by a local authority landlord.113 In Buckinghamshire CC v. Moran, a letter written “without prejudice”114 stated that the squatter understood that he had the right to the ground unless and until a by-pass was built on it was not an acknowledgement, though this must have been preciously close to the line. A letter asserting that the writer of it is in adverse possession obviously does not amount to an acknowledgement.115

In principle an acknowledgment given after the limitation period has elapsed does not revive a title once barred.116 However, Colchester BC v. Smith117 qualifies this

99Limitation Act 1980 sch 1 para 8(4).

100(1992) 65 P & CR 276, CA; Boosey v. Davis (1988) 55 P & CR 83, CA.

101Pye at [32], [45], Lord Browne-Wilkinson.

102Limitation Act 1980 ss 29–31. No substantive change is proposed: Draft Limitation Bill 2001 cl 27; Law Com 270 (2001), [8.27–8.48].

103Law Com 270 (2001), [3.146–3.155]; Maber v. Maber (1867) LR 2 Exch 153; Harlock v. Ashberry (1882) 19 Ch D 539, 545, Jessel MR; Edgington v. Clark [1964] 1 QB 367. On payments to agents see: Re Beavan [1912] 1 Ch 196; Wright v. Pepin [1954] 1 WLR 635; Re Transplanters (Holding) Co [1958] 1 WLR 822.

104Sanders v. Sanders (1881) 19 Ch D 373, CA; Doe d Milburn v. Edgar (1836) 2 Bing NC 498, 132 ER 195; Lodge v. Wakefield MCC [1995] 2 EGLR 124, CA.

105Lakshmijit v. Sherani [1974] AC 605, PC; AL Goodhart (1974) 90 LQR 2.

106Smith v. Lawson (1998) 75 P & CR 466, CA.

107Nicholson v. England [1926] 2 KB 93; Sanders v. Sanders (1881) 19 Ch D 373, CA.

108St Ives Corp v. Wadsworth (1908) 72 JP 73 (acknowledgement to predecessor). Acknowledgement of a landlord’s title cannot be used by a dispossessed tenant: Sze To Kung v. Kung Kwok Wai David [1997] 1 WLR 1232, PC.

109Browne v. Perry (1991) 64 P & CR 228, PC (Antigua).

110Limitation Act 1980 s 30(1).

111Even by a true owner: Bligh v. Martin [1968] 1 WLR 804, Pennycuick J.

112Edgington v. Clark [1964] 1 QB 367, CA.

113Lambeth LBC v. Bigden (2001) 33 HLR 43, CA; Lambeth LBC v. Archangel [2002] 1 P & CR 18 at 230, CA.

114[1990] Ch 623, 634D–635D, Slade LJ; Hillingdon LBC v. ARC (No 2) [1998] Ch 139, CA; Llanelec Precision Engineering v. Neath Port Talbot CBC [2000] 3 EGLR 158, L Tr.

115Mount Carmel Investments v. Peter Thurlow [1988] 1 WLR 1078, 1083–1086.

116BP Properties v. Buckler (1988) 55 P & CR 337.

117[1992] Ch 421, CA; M Dixon [1992] CLJ 420; M Welstead [1991] Conv 280.

when there was a genuine dispute since effect has to be given to agreements designed to settle litigation.118

E. LIMITATION

1.Personal actions

[10.16] Personal actions must be brought within six years, though only three years are allowed to pursue personal actions and a special relaxation allows 12 years for action on a speciality – that is a contract under seal.119 This basic six year period will apply to many actions connected with land, for example for rent due under a lease.120 These are “long-stop” provisions in the sense that the stale claim is squashed even if the owner if unaware of his right.121

2.Actions for the recovery of land

[10.17] Limitation is the process by which a stale claim to land is barred extinguished after the period allowed to the paper owner to challenge the squatter. A freehold owner dispossessed by a squatter may not bring an action to recover his land after the expiration of twelve years from the date on which the right of action accrued, provided only that the defence is pleaded.122

Limitation is the statutory process by which an owner is dispossessed by a squatter, a limitation period runs, and, acts to bar the owner’s title to the land after time has expired without an assertion of title by the owner. Proof of adverse possession for 12 years at any time in the past will suffice: it does not have to be period next before action.123 Periods based on the deaths of monarchs124 have been superseded, since 1623,125 by fixed limitation periods, the familiar 12 year period dating from 1874.126

Possession need not necessarily be hostile. Adverse possession is simply possession taken from the true owner, who therefore has a right of action to recover the land until that right of action is barred. The word “adverse” does not carry any connotation of hostility in the quality of the acts required of the squatter and the old concept of non adverse possession127 abandoned in 1833128 was not surreptiously

118At 435, Butler Sloss LJ.

119A deed under LP (MP) A 1989 s 2 is not a specialty (limitation period 6 years not 12).

120Law Com CP 151 (1999), [1.6–1.7]; Romain v. Scuba TV [1997] QB 887, CA (6 years even if lease under seal).

121RB Policies v. Butler [1950] 1 KB 76, 81; M Dockray [1985] Conv 272.

122Dismore v. Milton [1938] 3 All ER 762; Danford v. McAnulty (1883) 8 App Cas 456, HL; Cole v. Heyden (1860) 1 LT 439 (onus).

123Pye at [26], Lord Browne-Wilkinson.

124First the death of Henry 1 (1135) by statute of 1237, and afterwards the accession of Richard I (1189), and afterwards by the Statute of Limitation 1540: Law Com CP 151 (1999), [1.6–1.7].

125Limitation Act 1623.

126Real Property Limitation Act 1874.

127Limitation Act 1623 s 1; Nepean v. Doe d Knight (1837) 2 M & W 894, 911, 150 ER 1021; Paradise Beach and Transportation Co v. Price-Robinson [1968] AC 1072, 1081–1083, Lord Upjohn; Pye at [35], Lord Browne-Wilkinson.

128Real Property Limitation Act 1833; Bryant v. Foot (1867) LR 2 QB 161, 179–181; Real Property Limitation Act 1874; Ramnarace v. Lutchman [2001] UKPC 25, [2001] 1 WLR 1651.

reintroduced in 1939129 along with the word “adverse” to describe the squatter’s possession.

An Act of 1833130 established the modern system by which limitation removes title to unregistered land. Failure to sue within the limitation period extinguishes the title of the potential claimant,131 so conclusively that the title can no longer be revived by an acknowledgement,132 and claims to mesne profits in trespass are barred.133 A squatter’s title is not cast in iron because of the cases where longer than 12 years are allowed, and because of the rule that limitation operates separately against each burden: barring the title does not necessarily bar all the adverse interests affecting the land. A possessory title is much less secure than a documentary title.

3.Triggers

[10.18] If possession has been held for 30 or 40 years, the exact starting date may be unimportant and it may be sufficient to work backwards from the date of a writ.134 However where possession has been held for just about twelve years it may be important to work out the exact moment at which the right of action accrued.135 Whatever the trigger, the crucial date is always when some person takes adverse possession of the land.136

(1) Possession is relevant where the land is vacant and no one is in possession of it, so that time begins to run when the squatter takes adverse possession of it.137 (2) Dispossession (often inaccurately called ouster138) occurs “where a person comes in and drives out the others from possession.”139 Since the true owner is evicted, he is likely to take action immediately to recover land which was in use. The right of action accrues “on the date of the dispossession”.140 Where a person is in possession as licensee and then continues in occupation after his permission to be there is ended, as in Pye,141 this is not a discontinuance of the owner’s possession but rather a dispossession. Earmarked land142 taken over by a squatter is another example of dispossession.143 (3) Discontinuance followed by possession was added in 1833,144 where “the person in possession goes out and is followed into possession by other persons.”

129Limitation Act 1939; Law Reform Committee (21st Report) Cmnd 6923; Limitation Act 1980.

130Real Property Limitation Act 1833 s 34; N Curwen [2000] Conv 528.

131Limitation Act 1980 s 17.

132BP Properties v. Buckler (1987) 55 P & CR 337, CA.

133Re Jolly [1900] 2 Ch 616; Mount Carmel at 1088–1089, Nicholls LJ.

134Treloar v. Nute [1976] 1 WLR 1295, 1300, Sir John Pennycuick; Wallis’s [1975] QB 94, 114F, Ormrod LJ (strictly inaccurate).

135Limitation Act 1980 sch 1; Law Com 270 (2001), [2.52–2.61].

136Treloar at 1300F, Sir John Pennycuick; PF Smith (1978) 41 MLR 204.

137Limitation Act 1980 sch 1 para 1.

138Pye at [36], Lord Browne-Wilkinson; he disapproved Rains v. Buxton (1880) 14 Ch D 537, 539, Fry J.

139Limitation Act 1980 sch 1 para 8(1).

140Limitation Act 1980 sch 1 para 1.

141Pye at [28–30], Lord Browne-Wilkinson.

142Treloar v. Nute [1976] 1 WLR 1295, 1300F; PF Smith (1978) 41 MLR 204; Wallis’s [1975] QB 94, 114H, Ormrod LJ; Williams Brothers Direct Supply v. Raftery [1958] 1 QB 159, CA; RN Gooderson [1958]

CLJ 34.

143Limitation Act 1980 sch 1 para 8(4); Buckinghamshire CC v. Moran [1990] Ch 623, 644H, Nourse LJ.

144Limitation Act 1980 sch 1 para 1; Nepean v. Doe d Knight (1837) 2 M & W 894, 150 ER 1021;

Paradise Beach & Transportation Co v. Price-Robinson [1968] AC 1072; Hughes v. Griffin [1969] 1 WLR 23, 29E–F, Harman LJ.

Mount Carmel Investments v. Peter Thurlow145 arose because two shareholders in Mount Carmel ceased to take an active interest in a valuable mews property in 1962 – one of them going so far as to withdraw to a Carmelite nunnery – so that by 1970 it had deteriorated to the point where it was almost uninhabitable. Time runs only from the later date on which some person takes adverse possession of the land.146

4.Assertion of title

[10.19] Paper title must be asserted within the limitation period. It is not sufficient to protest or to write demanding possession.147 Physical repossession suffices when it is lawful,148 but proceedings are more usual. The owner must issue a claim form within the time limit unless the squatter vacates or gives a written acknowledgement to the owner.149 Service must generally occur within four months.150 There is very limited scope for service out of time.151 Actions will be brought and time will stop running on the day a claim form is received in the court office.152 The limitation period starts again from the date of assertion of title, if, for example, a court order for possession is not enforced.153

According to the controversial decision in Markfield Investments v. Evans,154 the mere issue of proceedings is not sufficient if the case is subsequently dismissed for want of prosecution. This is difficult to accept. It has been reversed for the purposes of the new registered land scheme,155 and will be reversed more generally.156 Pye left open the question whether the issue of an originating summons by the registered proprietor for cancellation of a caution lodged by the squatter was a sufficient assertion of title; surely this was in principle sufficient to assert title.157

5.Human rights

[10.20] Removal of title by limitation defines the terms on which ownership is allowed by our legal system, and so it cannot be seen as an interference with or deprivation of the owner’s possession. It is a deprivation of the owner’s right of access to a court, but time limits are readily justifiable.158

145[1988] 1 WLR 1078, CA; Buckinghamshire CC v. Moran [1990] Ch 623, 635H, Slade LJ.

146Limitation Act 1980 sch 1 para 8(1).

147Mount Carmel Investments v. Peter Thurlow [1988] 1 WLR 1078, 1084B, 1085H, Nicholls LJ.

148Worssam v. Vendenbrande (1868) 17 WR 53; Bryan v. Cowdal (1873) 21 WR 693.

149Mount Carmel Investments v. Peter Thurlow [1988] 1 WLR 1078, 1086, Nicholls LJ.

150CPR 7.11.

151CPR 6.7; Anderton v. Clwyd CC [2002] EWCA Civ 933, [2002] 1 WLR 3174.

152PD 7.5.1.

153BP Properties v. Buckler (1988) 55 P & CR 337, CA.

154[2001] 2 All ER 238, CA (occupation taken in 1977; action in 1990 but discontinued in 1999); MP Thompson [2001] Conv 341.

155LRA 2002 sch 6 para 11; Law Com 271 (2001), [14.23].

156Law Com 270 (2001), [5.1–5.4].

157Pye at [22], Lord Browne-Wilkinson.

158Stubbings v. UK, 22083/93, (1996) 23 EHRR 213; Law Com 270 (2001), [1.19]; JA Pye (Oxford) v. Graham [2001] Ch 804, CA, [36–43], Mummery LJ, [46–48], Keene LJ; this point was not appealed: [2002]

F. EXTENDED LIMITATION PERIODS

1.Disability

[10.21] A person secures capacity at 18, but will lose it by becoming of unsound mind, so as to be unable by reason of mental disorder to manage and administer his property and affairs.159 Time is extended where the person able to take action was under a disability when the right accrued, time running out six years after the termination of the incapacity or death of the person incapacitated,160 with a long-stop maximum of thirty years.161 Once time begins, it continues come what may, throughout subsequent disabilities.162 Property will usually be vested in trustees who can take action where appropriate.

Where title is registered it is now made clear that there is a defence while the registered proprietor is an enemy or detained in enemy territory and also when his mental disability is such that he cannot give or cannot communicate a proper decision.163 Further general reform is proposed:164 the current law will continue with a new provision for children.165

2.Fraud, concealment or mistake

[10.22] Where facts necessary to raise the cause of action are hidden from the person with the right to sue, the limitation period does not begin until the fact is discovered or was discoverable.166 This applies to three forms of action: (1) actions based on fraud;167 (2) actions based on facts which have been deliberately concealed;168 and (3) actions for relief from a mistake. Extension of time is available against the fraudulent person and any people deriving title from him,169 but not against honest buyers.170 Where concealment occurs after accrual of the landlord’s cause of action, a new period runs from the date of discovery.171

UKHL 30, [2002] 2 All ER 865, [73], Lord Hope; Family H Ass v. Donnellan [2002] 1 P & CR 34 at 449, Park J.

159Limitation Act 1980 s 38(2)–(4).

160No further extension occurs if the right of action passes on death to a person also under a disability: s 28(3), a change since Cotton’s case (1591) 1 Leon 211, 74 ER 194.

161Limitation Act 1980 s 28(1), (4); Thomas v. Plaistow [1997] Times May 19th, CA (same meaning in s 33(3)(a).)

162Limitation Act 1980 s 28(1)–(2); Stowel v. Zouch (1569) 1 Plowd 353, 75 ER 536; St John v. Turner (1700) 2 Vern 418, 23 ER 868; Hamfray v. Scroope (1849) 13 QB 509, 116 ER 1357.

163LRA 2002 sch 6 para 8; Law Com 271 (2001) [14.29ff]. The suspension of the period can be noted in the register when the registrar is aware of it.

164Law Com 270 (2001), [3.114–3.127], [3.134–3.145], [4.152–4.153], [8.11–8.26],

165Draft Limitation Bill 2000 cls 26–30.

166Limitation Act 1980 s 32(1).

167Eg procuring a conveyance from a mentally incapable person, misrepresenting a right of succession, or wrong entry under a false gift.

168Limitation Act 1980 s 32(2); Willis v. Earl Howe [1893] 2 Ch 545 (not entry by the wrong heir in 1798).

169Limitation Act 1980 s 32(1).

170S 32(3)–(4).

171Sheldon v. RHM Outhwaite (Underwriting Agencies) [1996] AC 102, HL.

3.Crown and corporations sole

[10.23] Statute provides favourable treatment172 based on the identity of the plaintiff seeking to recover the land. Predictably an extended period is allowed to the Crown:173 the Foreign Secretary was allowed thirty years to evict squatters from the Cambodian embassy.174 Less meritoriously the same extension is also allowed to charitable and religious corporations sole.175 The law will be tidied up.176

G. REFORM OF THE LAW OF LIMITATION

1.Personal actions

[10.24] The Law Commission review of Limitation of Actions177 proposes to sweep away the confusing mess of limitation periods developed piecemeal over the years and replace them with a new core regime, intended to apply to any civil remedy, for restitution, of for the enforcement of any right, including specialties brought into the normal regime so that the period of action is reduced from 12 to three years. The core regime will also apply to claims for arrears of rent, the current six year period falling to three. A limitation defence will operate after three years from discovery of the cause of action, but with a 10 year long stop.178 Outside the core regime will be family proceedings, insolvency and bankruptcy.

2.Actions for the recovery of land

[10.25] Law Commission proposals179 would tidy the provisions on actions to recover land, without radical shifts of policy. Abolition of adverse possession against unregistered titles is not on the agenda.180 Actions for the recovery of land will be subject to a long stop period of 10 years, the reduction from 12 years being the one really significant change. Special provision will be made for claims to monetary compensation derived from land.

172Foreshore 60 years: Limitation Act 1980 sch 1 paras 10–11; Alfred F Beckett v. Lyons [1967] Ch 449; DEC Yale [1968] CLJ 195. Reform: (1) registered land: LRA 2002 sch 6 para 13; Law Com 271 (2001), [14.97–14.100], EN [724–726]; (2) general: Law Com 270 (2001), [4.145–4.147]; Draft Limitation Bill 2001 16(2).

173Limitation Act 1980 sch 1 para 10 (30 years); Law Com 270 (2001), [4.138–4.150], [6.42]. The period was 60 years until 1939: Emmerson v. Maddison [1906] AC 569, PC. Where the Crown or corporation conveys to an individual, the period is 30 years or 12 years from the conveyance: sch 1 paras 10–12.

174SS for Foreign and Commonwealth Affairs v. Tomlin [1990] Times, December 4th.

175Limitation Act 1980 s 15(7), sch 1 part 2; also for derivative claims. Until 1939 it was 2 incumbencies

+6 years to a maximum of 60 years; Ecclesiastical Commissioners for England and Wales v. Rowe (1880) 5 App Cas 736; Blackett v. Ridout [1915] 2 KB 415, CA; see also Draft Limitation Bill 2001 cl 17(5).

176Law Com 270 (2001), [4.138–4.144], [4.148–4.150], [6.42]; Law Com CP 151 (1999), [13.122–13.127], [15.54–15.55].

177Law Com 270 (2001); Draft Limitation Bill 2001.

178Law Com 270 (2001), [1.12].

179Law Com 270 (2001), part VI; Draft Limitation Bill 2001 cl 38.

180Law Com 270 (2001), [4.131].

Figure 10-1 Possession based titles

Title 2 is vindicated over title 3.185 Most cases involve two identified parties, one with paper title (who may be viewed as the “true” owner) and a squatter who claims the land. A decision in favour of the squatter establishes him for practical purposes as owner of the land, since he holds a legal title which cannot be challenged by any other known person.

2.Succession to squatter’s title

[10.29] Periods of adverse possession may be lumped together to make up a full 12-year period. Each possessory title forms a chain, rooted in the adverse possession, which can be sold,186 given187 or can pass on death188 in the same way as a documentary title. Priority is given to the earliest claim to possession.

If one squatter is dispossessed by another, the combined period of adverse possession is available to bar the title of the paper owner,189 but a competition remains between the two trespassers190 until the second squatter has served 12 years

185The case does not establish whether or not the Lord of the Manor was barred. Presumably not, though there is a persistent rumour of a customary right to a house sited on waste land of a manor and occupied all within a single night: AR Everton (1971) 35 Conv (NS) 249, (1972) 36 Conv (NS) 241, (1975) 39 Conv (NS) 426.

186The paper title can also be sold: Wallis’s [1975] QB 94, 106F–H, Stamp LJ (Avis to Shell Mex in

1961).

187Mount Carmel Investments v. Peter Thurlow [1988] 1 WLR 1078, 1086E–F, Nicholls LJ; Treloar v.

Nute [1976] 1 WLR 1295, CA (gift of possessory title); Buckinghamshire CC v. Moran [1990] Ch 623, CA.

188Asher v. Whitlock (1865) LR 1 QB 1; Pye at [24], Lord Browne–Wilkinson (succession in February 1998 when Michael Graham was killed in a shooting accident).

189Mount Carmel at 1086E–F, Nicholls LJ; Dixon v. Gayfere (No 1) (1853) 17 Beav 421, 430, 51 ER 1097, Romilly MR.

190Asher v. Whitlock (1865) LR 1 QB 1; Wallis’s [1975] QB 94, 106, Stamp LJ.

unaided. If the first squatter moves out and abandons possession back to the paper owner,191 time will run only from when a second person takes possession.192

I.UNREGISTERED MECHANICS

[10.30] Adverse possession of unregistered land creates a legal estate in land as before,193 and one which is a freehold estate even if it is liable to be cut short by the true owner.194 At first it is very feeble, but its value increases progressively as previous owners and those with adverse interests are barred. It has long been axiomatic that there is no “Parliamentary conveyance”,195 a point re-emphasised by Lord Radcliffe in Fairweather v. St Marylebone Property Co,196 so the squatter is not a successor to the previous paper title. For example, an adverse possessor of leasehold land is not liable on the covenants in the lease,197 a tenant retains the ability to surrender his unregistered lease even after adverse possession has barred his title to it,198 and a squatter cannot claim relief from forfeiture.199 No easements are created on the division of a title caused by adverse possession of a part.200

Documentary proof of a possessory title is based on a statutory declaration by the possessor the land showing how possession began at least 12 years before, proving acts sufficient to establish title by possession, stating that no other person has sought to exercise ownership rights, and that no superior title has been acknowledged by rent payments or by letter. Legal title to the freehold estate in the property is subject to the qualifications appearing below.

A contract for sale of any possessory title requires a special condition201 and care is needed to ensure that terms of it are complied with exactly.202 Under an open contract the buyer cannot be forced to accept title based solely on possession,203 though he must accept a paper title with a gap covered by proof of possession.204 First registration will be required.

191Trustees Executors & Agency Co v. Short (1888) 13 App Cas 793, PC; Willis v. Earl Howe [1893] 2 Ch 545, 553, Kay LJ; Samuel Johnson & Sons v. Brock [1907] 2 Ch 533, 538, Parker J.

192Limitation Act 1980 sch 1 para 8(1).

193LPA 1925 ss 12, 55(c).

194B Rudden (1964) 80 LQR 63, 70–71.

195Doe d Jukes v. Sumner (1845) 14 M & W 39, 42, 153 ER 380, Parke B.

196[1963] AC 510, 535; Bryant v. Foot (1867) LR 2 QB 161, 179–180, Cockburn CJ.

197Tichborne v. Weir (1892) 67 LT 735, CA; Taylor v. Twinberrow [1930] 2 KB 16.

198Fairweather [1963] AC 510, HL.

199Tickner v. Buzzacott [1965] Ch 426; DG Barnsley (1965) 28 MLR 364.

200Wilkes v. Greenway (1890) 6 TLR 449, CA; Palace Court Garages (Hampstead) v. Steiner (1958) 108 LJ 274 (registered lease).

201Varying the statutory title of 15 years under LPA 1925 s 44.

202George Wimpey & Co v. Sohn [1967] Ch 487, CA (special condition for statutory declaration proving 20 years possession, which in fact showed only 12 years; rescission).

203Moulton v. Edmonds (1859) 1 De GF & J 246, 45 ER 352; Jacobs v. Revell [1900] 2 Ch 858.

204Re Atkinson & Horsell’s C [1912] 2 Ch 1, CA; Games v. Bonner (1884) 54 LJ Ch 517 (where a known documentary flaw is corrected).

J.BURDENS

[10.31] Ownership derived from possession only becomes absolute once the possessor has extinguished the right of every other person entitled to challenge it.205 Limitation applies independently to each adverse interest affecting the land, but only after a trigger has caused that particular right of action to accrue. All this means that limitation is miserably ineffective as a technique for perfecting titles to unregistered land.

1.Burdens

[10.32] Destruction of the previous title by squatters still leaves the land subject to restrictive covenants. The argument against that position in Re Nisbet & Pott’s Contract206 was “so startling a proposition, and so wide-reaching, that it must be wrong.” Hence the true position, that a squatter takes subject to all burdens – such as easements,207 land charges, and restrictive covenants – which remain unbarred until the occurrence of an event triggering the need to assert them.208 Collins MR referred throughout his judgment to incumbrances affecting the land, though properly they affect an estate in the land. This creates an awkward problem of visualisation. Apparently one should see the pre-limitation title as a shell once there is no owner able to enforce it, but with valid incumbrances still hanging on to it. Adverse possession by the squatter creates a new title, but one which is subject to the burdens affecting the paramount shell of the pre-squatting title.

2.Mortgages

[10.33] The law is complex but at least we have the guidance of a recent and superb account by Hugh Beale.209

(1) Squatter occupying mortgaged property

[10.34] The squatter’s claim is only to the equity of redemption, meaning the land subject to the mortgage.210 It would be necessary for the squatter to bar the mortgage separately.

(2) Borrower barring the lender – unregistered land

[10.35] A mortgage charges a sum of money on the borrower’s land on condition that it will be repaid on the contractual redemption date. After that,211 the mortgage has

205Re Atkinson & Horsell’s C [1912] 2 Ch 1, 9, Cozens-Hardy MR.

206[1906] 1 Ch 386, 409, Cozens-Hardy LJ; also at 407–408, Romer LJ; contrast Tichborne v. Weir (1892) 67 LT 735, 737, Bowen LJ; Dart’s Vendor and Purchaser (Stevens, 5th ed, 1876) vol 1, 463.

207At 411, Cozens-Hardy LJ.

208At 401, Collins MR, 406, Romer LJ.

209Law Com 270 (2001), [2.62–2.66].

210Carroll v. Manek (2000) 79 P & CR 404, Ch D.

211If contractual redemption is postponed indefinitely, as in Knightsbridge Estates v. Byrne [1939] Ch 441, CA, the mortgage is unbarrable.