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Land Registration Act 2002

This page sets out the procedure for applying to the Land Registry under the Land Registration Act 2002 to be registered as owner of land that has been in adverse possession. It also deals with the leading cases that have been decided under the Act since it came into force.

Introduction

Where land is registered a squatter may only acquire title to that land if he satisfies the provisions of Schedule to 6, the Land Registration Act 2002 (unless he was in adverse possession for 12 years prior to 13 October 2003 when that Act came into force, in which case the "old law" will apply).

The position is more complicated than this but put simply:
  • A person may apply under the 2002 Act to be registered as the proprietor of the land if he has been in "adverse possession" for a period of ten years ending on the date of the application (Schedule 6, para 1). If an application is made a notice is served on the registered proprietor and if no counter-notice is served within the limit given the applicant will be registered as the owner;
  • However, if the registered proprietor does serve a counter-notice the applicant must show that one of three "conditions" applies; estoppel, some other reason why the squatter should be registered, or the boundary condition.
  • The key element under the boundary condition is a requirement that the squatter has had a reasonable belief for at least 10 years of the adverse possession that the land belonged to him (Schedule 6, para 5).
The Land Registry provides a very good guide to its procedure for applying under these provisions: Practice Guide 4

There have not yet been many cases under the 2002 Act but two particular points have arisen:
  • Paper owner's mistaken failure to serve a counter-notice to trespasser's notice under the 2002 Act claiming title - can the paper owner get the property back?
  • Reasonable belief as to ownership for the purposes of the boundary condition.


Application by squatter to be registered

A person who has been in adverse possession of land for 10 years may apply to the Land Registry to be registered as the owner of the land.
    Schedule 6 of the Land Registration Act 2002, para 1

    "(1) A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application".
Such a person will also be able to apply if he has been evicted otherwise than by a court order in the period of six months ending on the date of the application (Sched 6, para 1(2)).

However, he will not be able to apply if he is a defendant in possession proceedings of the land or if a judgment for possession has been given against him in the last two years (Sched 6, para 1(4)). In order to apply it is not necessary that the land should have been registered throughout the period of adverse possession (Sched 6, para 1(4)).

However, in Swan Housing Association Limited v Gill [2012] EWHC 3129, it was held that where a tenant, who was a defendant to an application for an anti-social behaviour injunction, had already made an application to the Land Registry under Schedule 6 to be registered as the owner of a bit of neighbouring owned by the landlord, it was for the Land Registry, rather than the court, to determine the claim for adverse possession.

The application is made on form ADV 1 and must be accompanied by the documents listed in rule 188, which include:
  • A statutory declaration made not more than one month before the application, together with any supporting statutory declarations.
  • A plan, which must be exhibited to the statutory application, enabling the land to be identified on an OS map.
    (See Practice Guide 4 for full details and the rules themselves).
Where the squatter intends to rely upon one of the “conditions” dealt with below he must include the details on his ADV 1 form. Upon receipt of the application the Land Registry will usually arrange for one of its surveyors to carry out an inspection of the land (Practice Guide 4, paragraph 5.1).


Notice of application to owner and others

If the LR is satisfied that the squatter has shown an arguable case notice of the application will be sent by the Land Registry to the registered proprietor, any chargees, superior landlords and any other person who has been registered as a person to be notified of any such application (Sched 6, rule 2; rule 194 and ADV 2; Practice Guide 4, para 5.3). The notice will be sent to the address held by the Land Registry. It is therefore important for owners etc. to ensure that the address is kept up to date at the Land Registry.

Counter-notice

The persons who are notified of the application have the right to serve a counter-notice (Sched 6, para 3). They will have 65 “business days” within which to serve the counter-notice (rule 189) or 78 if the relevant LR office is open on a Saturday (rule 216). If no counter-notice is served the squatter will be registered as the owner (para 4).

Mistaken failure to serve counter-notice - rectification of mistake - land owner re-registered as owner

Baxter v Mannion
[2010] EWHC 573 (Ch)

Summary

A land owner who, due to illness, failed to respond to a trespasser's claim under the provisions contained in the Land Registration Act 2002 within the requisite time period, and thus lost his registered title, was able to have the land re-registered in his name after it was found that the trespasser had not been in adverse possession for a period of ten years ending on the date of the application.

Introduction

As stated above, under the provisions contained in the Land Registration Act 2002 "a person may apply to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application". (Sched 6, para 1). If the Land Registry is satisfied with the application, notice is sent to the registered proprietor who then has 65 "business days" to serve a counter-notice if he objects to the registration. If a counter-notice is served, the applicant needs to establish one of the three grounds set out in Sched 6, para 5 before he can be registered as owner (i.e. an estoppel, some other reason, or a reasonable mistake as to the boundary). If however the registered owner fails to service the counter-notice in time, the applicant will be registered as the owner (para 4).

Issue

What if the owner, through no fault of his own, is unable to serve the counter-notice in time and it can be established that the applicant for registration had not been in adverse possession for the requisite period of ten years prior to the date of the application? That was the issue in this case.

Facts

The "squatter" made the application under schedule 6 in relation to a field. No counter-notice (form NAP) was served and the squatter was registered as the owner. The registered owner ("the initial owner") failed to serve the counter-notice in time due to ill health and tragedies in the family, which made him "mentally unable during this period to deal with the notice". The initial owner subsequently applied for rectification of the register. He argued that there had been a mistake because the squatter was never in adverse possession of the land. The application was made under para 5(a) of Schedule 4 to the 2002 Act, which provides that the register may be altered for the purpose of correcting a mistake.

Adjudicator

The matter went before the Land Registry Adjudicator who, after a trial, came to the clear conclusion that the squatter had not been in adverse possession for the requisite period of ten years ending on the date of the application. She therefore considered that there had been a mistake, and ordered that the initial owner be re-registered as the owner. The squatter appealed to the High Court.

Appeal

The appeal was refused.

The squatter argued that there had been no "mistake" within the meaning of the relevant paragraph (para 5(a) of Schedule 43) but rather that the registration in the name of the squatter was a consequence of the initial owner's failure to serve a counter-notice in good time. He also argued that there was no mistake because the registrar must have been satisfied that the evidence in the statutory declaration made in support of the application satisfied the test of adverse possession; and that the mistakes being considered by the statute were those of a procedural nature. The judge rejected all these submissions. Henderson J at para 39 and 40:
    "I can see no good reason to confine the jurisdiction of the registrar under paragraph 5(a) to the correction of mistakes of a procedural nature. In my judgment there is a mistake in the register, which the registrar has power to correct, if any statutory condition which is a prerequisite for registration is shown not to have been satisfied. Thus, in the present context, Mr Baxter’s registration was a mistake if it can be shown that he was not in fact in adverse possession of the Field for the ten year period ending on 19 August 2005, because if that is the case he never satisfied the precondition in paragraph 1(1) of Schedule 6, and was therefore never entitled to apply for registration in the first place. The precondition refers to a factual test (ten years’ adverse possession), which has to be satisfied, and upon which a squatter’s right to apply for registration is predicated. The paragraph does not say that a squatter may apply for registration if he can produce prima facie evidence of adverse possession during the ten year period, or if he can persuade the registrar that his claim to have been in adverse possession is more likely to succeed than not. Those may be appropriate threshold tests for determining whether the application should be allowed to proceed at all, and I certainly wish to cast no doubt on the Land Registry’s practice set out in Practice Guide 4; but it is important not to confuse a procedural filter of that nature with the substantive test, which is clear and unqualified.

    It follows, in my view, that the procedure set out in paragraphs 2 to 5 of Schedule 6 is not necessarily conclusive of the applicant’s entitlement to be registered. It is true that the applicant will automatically be registered under paragraph 4 if no counter notice is served requiring the application to be dealt with under paragraph 5; but it will still be open to the former proprietor to argue that the registration was a mistake, on the ground that the applicant did not satisfy the test of ten years’ adverse possession."
Further, given that the underlying policy of the 2002 Act is severely to limit the circumstances in which a squatter can acquire title to land
    ".. it would be very strange if a registered proprietor could, for the first time, be at risk of irrevocably losing his land to a squatter who had never in fact been in adverse possession. It would also be a wholly disproportionate penalty for failure to serve a counter notice, especially where (as in the present case) there are extenuating circumstances which help to explain, even if they do not fully excuse, the failure." (Para 42).
Unjust not to rectify

Under the provisions of schedule 4 of the 2002 Act:
    “(2) No alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor’s consent in relation to land in his possession unless –

      (a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or
      (b) it would for any other reason be unjust for the alteration not to be made.

    (3) If on an application for alteration under paragraph 5 the registrar has power to make the alteration, the application must be approved, unless there are exceptional circumstances which justify not making the alteration.”
The judge was satisfied that it would be unjust not to rectify the register. The judge at para 63:
    "I am satisfied that in all the circumstances it would be unjust for the register not to be rectified, with the result that the second limb of paragraph 6(2) applies. In the light of the Adjudicator’s unassailable findings of fact on the issue of adverse possession, it is clear that Mr Baxter was never entitled to be registered as proprietor of the Field, and in my view simple justice requires that, in the absence of strong countervailing factors, Mr Mannion should now be able to regain title to his property. I can discern no countervailing factors which would make it unjust for Mr Baxter to be deprived of his adventitious title to the Field, and on the contrary I see every reason why he should. If he thinks that he has suffered loss as a result, it will be open to him to claim an indemnity under paragraph 1(1)(a) of Schedule 8, and if necessary the question of fraud or lack of proper care on his part can be examined in that context."
Comment

This case deals with an important question that many have asked. What happens if by reason of some unfortunate circumstance, such as illness, a counter-notice is not served within the relevant time period and it subsequently transpires that the applicant never even had the requisite period of adverse possession under his belt? In this case the mistake was rectified. However, it is to be noted that the rectification provisions in schedule 4 of the Act must be applied. Whether the court is prepared to re-register the original owner where the property has been sold by the squatter to a new owner who has in the meantime been registered remains to be seen.

Counter-notice served

If a counter-notice is served (Form NAP) the trespasser's application will be dismissed unless he can establish one of three grounds (called “conditions”) that can be summarised as follows (Sched 6, para 5):
  • Estoppel
  • Some other reason why squatter is entitled to be registered.
  • Reasonable mistake as to boundaries.

Reasonable mistake as to boundaries

Although there are three “conditions” the most important is that relating to “reasonable mistake as to boundaries” (Sched 6, para 5(4) – see text below). The third element of that condition is that: “For at least 10 years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him.” In determining whether or not a person has a reasonable belief one cannot impute what should or might have been the belief his solicitor with knowledge of the conveyancing documents.

It is necessary to look at the actual belief of the person claiming adverse possession (Iam Group Plc v Chowdrey [2012] EWCA Civ 505). In Iam the applicant asserted reasonable belief in ownership on the basis that the only access to the disputed property was through his property and he had been in occupation for eighteen years without any other person claiming to be entitled. Etherton LJ at paras 25-27:
    “There cannot be, and there is not, any appeal from the Judge's finding that the respondent at all times after he purchased No. 26a in 1993 honestly believed that the disputed property belonged to him. The only question on this appeal is whether the Judge was entitled to conclude – and right to conclude – that that belief was reasonably held.
    I do not accept the central proposition, advanced skilfully by Mr Evans, that the issue of reasonableness turns on the knowledge which the respondent's solicitors in 1993 would or should have had if they had been reasonably competent. There was no evidence before the Judge as to what those solicitors did or thought about the matter. Before the Judge, and in the skeleton arguments for the purpose of this appeal, the appellant criticised the failure of the respondent to produce the conveyancing file. It appears, however, that the firm of solicitors acting on the 1993 transfer on the respondent's behalf no longer exists, and it is certainly almost impossible now to locate the conveyancing file. Accordingly, precisely what those solicitors asked and knew is not before the court as a matter of evidence.

    In my judgment, the issue is not the knowledge of a reasonably competent solicitor acting for the respondent in 1993. We are not here concerned with knowledge in the context, which frequently arises, of imputing an agent's knowledge to the principal.
    We are here concerned with the requirement as to the reasonable belief of a particular person. In this case, it is the respondent, but generally it is the person who is seeking to apply for registration of title by virtue of adverse possession. What is in issue therefore is not imputed knowledge but rather whether that particular person – here the respondent – was reasonable in holding the belief that he or she did in all the circumstances. That can involve a question as to whether the respondent should have made enquiries of his solicitors or elsewhere as to whether, notwithstanding his purchase of the freehold of No. 26a in 1993, the disputed property was in fact comprised within his paper title.”
Further, the mere fact that a paper owner challenges the asserted ownership of land by the adverse possessor is not in every case sufficient to render unreasonable any continuing belief of ownership on the part of the adverse possessor (Zarb v Parry [2011] EWCA 1306; Iam Group Plc v Chowdrey [2012] EWCA Civ 505). Etherton LJ at para 30 in Iam:
    “The question in each case is what, in all the circumstances, is the proper conclusion as to the reasonableness or otherwise of the continued belief as to ownership by the adverse possessor.”

Second application

An unsuccessful trespasser can re-apply to have the title registered in his name if he is still in adverse possession two years after the date of the rejection, unless the exceptions below apply (Sched 6, para 6). If he makes the application he will be "entitled to be entered in the register as the new proprietor of the estate". Thus, it is vitally important for a landowner who has seen off a first application to make sure that he takes steps within two years to get back the property, or regularise the position in some other way.

Exceptions: In these cases a second application will not lead to automatic registration.
  • Trespasser a defendant in possession proceedings
  • Judgment for possession has been given in the last two years
  • He has been evicted pursuant to a judgment for possession (para 6(2)).

Possession claims

There are certain provisions that apply in possession claims and to orders for possession that reflect the provisions in schedule 6.

Defence where entitled to apply to be registered as new owner

Where the paper owner brings a claim for possession the trespasser will have a defence if:
  • On the day immediately preceding the date upon which the claim was brought he was entitled to make an application under para 1 of schedule 6 to be registered as the proprietor of an estate in the land and if he had made such an application the boundary condition in para 5(4) would have been satisfied. (s98(1)); or
  • On the day immediately preceding that on which the claim was brought he was entitled to make an application under paragraph 6 to be registered as a proprietor (i.e. second application by trespasser who has continued to be in adverse possession for two years since the first application).
(See also s98(6) in respect of any other defences that might be available).

Judgment for possession no longer enforceable after two years

A judgment for possession ceases to be enforceable at the end of the period of two years beginning with the date of the judgment if:
  • The proceedings in which the judgment is given were commenced against a person who was at that time entitled to make an application under para 1 of schedule 6 (s98(2)); or
  • The end of that period the person against whom the judgment was given is entitled to make an application under paragraph 6 to be registered as a proprietor (i.e. second application who has continued to be in adverse possession for two years after the first application).

Registration

Where a person is entitled to a defence or a judgment has ceased to be enforceable under the above provisions the court must order the registrar to register the applicant as the proprietor of the estate – the previous registered proprietor’s interest is extinguished (schedule 6, para 9(1)). Where a person is registered as proprietor under Schedule 6 he seemingly gets the same title as the registered proprietor - although the point is not made express in the Act.

As a general rule chargees lose their charge (para 9(3)) because they had an opportunity to object and could have taken action between the first and second applications). However, this is not the case if one of the conditions in para 5 applies. However, the squatter in such a case can ask for an apportionment of the charge (paras 9(4) and 10).


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