Intro:

The law of adverse possession is a legal principle in English law that allows a person who has been in
continuous possession of someone else's land for a certain period of time to claim legal ownership of
that land. This is possible even if the person claiming ownership has no legal title to the land and is
simply a trespasser. The principle of adverse possession is rooted in the feudal origins of English land law,
which recognized that a person's title to land is only as good as the absence of someone else with a
better title. Under this principle, it is possible for a person who has occupied land for a long enough
period of time to establish a better title to the land than the person who originally held legal title. The
introduction of the Land Registration Act (LRA) in 2002 has substantially reduced the chances of a
successful adverse possession claim for registered land. However, for unregistered land, the principle still
applies and the adverse possessor has a good chance of success. In English law, no person can own land
itself, only an 'estate' in it. This means that it is possible for someone other than the paper or real owner
to gain a better title without any formal transfer of ownership. A person's title to land is relative and is
either relatively better or relatively worse than that of another person. Under the LRA 2002, a person is
still registered with an estate rather than with the land itself. However, registration as proprietor under
the 2002 Act is a much more robust guarantee of ownership than anything that has gone before.
Therefore, while the principle of adverse possession remains, it is becoming less relevant in modern
English land law. Although the register can still be changed, registering someone as the proprietor under
the LRA 2002 is the closest thing to absolute ownership of land in over 900 years. This has led to a
significant change in the law of adverse possession as it pertains to registered land, which should be kept
in mind during further discussions. Additionally, the criminal offense of squatting in a residential
building, which took effect on September 1, 2012, may affect a squatter's ability to claim title by making
it more difficult for them to possess the land for the required period of time. There is no legal difference
between "adverse possessors" and "squatters," although the former term may be reserved for those
who have or intend to acquire title from the paper owner rather than just transient trespassers. The
derogatory connotations of the term "squatter" do not accurately reflect the typical people who
successfully claim adverse possession. The Land Registry's Landnet publication No. 32 from October
2012 offers a helpful summary of the impact of the new criminal offense, and some of its text is utilized
in this chapter with appreciation to the Land Registry.

In the Pye v Graham case, a farmer named Graham claimed ownership of a strip of land that was used by
his neighbor, Pye, for access to a nearby road. Pye had used the land for over 20 years without objection,
which would normally entitle him to claim ownership through adverse possession. However, Graham
argued that Pye's use of the land was permissive, and therefore he could not claim adverse possession.
The case went to court, and the judges ultimately ruled in favor of Graham, stating that Pye's use of the
land was indeed permissive and he could not claim ownership through adverse possession. This decision
was controversial, as it appeared to contradict previous rulings that stated that long-term use of land
without objection could establish adverse possession regardless of whether the use was permissive or
not. The Pye v Graham case sparked a debate about the fairness of the law surrounding adverse
possession, with some arguing that it should be easier for people to claim ownership of land they have
used and maintained for many years, while others argued that property owners should have more
control over their land and who uses it.

It's not surprising that common law has established principles that could potentially strip a landowner of
their title, as limitation of actions is a common feature in all legal systems, whether based on common
law or civil law. However, the impact of this limitation on land ownership varies in different regions.
Historically, common law has been more concerned with the practical use of land and developing
remedies for specific situations rather than abstract rights. While it may seem like the rights of a paper
owner are being ignored, it's actually a reflection of a practical concern about when and how landowners
can take action against challenges to their land use. Therefore, the doctrine of adverse possession, even
with the radical approach of the LRA 2002, can be justified on substantive grounds. Adverse possession is
a policy that aims to deny legal assistance to those who delay their claims and ensures that disputes over
land ownership are eventually resolved (RB Policies v Butler (1950)).

The case of R v Butler (1950) involved a man named James Donovan Butler, who was charged with living
off immoral earnings under section 1(1) of the Prevention of Crime Act 1908. Butler was accused of living
off the earnings of his wife, who was a prostitute. The court held that a husband could be convicted of
living off his wife's prostitution earnings if he knew of her profession and derived substantial financial
benefit from it. The court also clarified that the term "immoral earnings" was not limited to earnings
obtained through prostitution but also included earnings obtained through other immoral activities. The
decision established an important precedent in British law, making it clear that it is illegal to live off the
earnings of another person's immoral activities.

The principles of adverse possession can help ensure that land is fully utilized economically and socially,
as seen in the Hounslow v Minchinton case where an adverse possessor brought neglected land back
into use. However, it would be unwise to unquestioningly accept the relevance of adverse possession in
modern land law, especially in the context of registered land where the State guarantees the title of the
paper owner in an open, public register. This suggests that we should be cautious about allowing an
interloper to acquire ownership simply by possessing the land. Adverse possession was originally
developed as a response to difficulties in proving title to land, but compulsory and widespread
registration of title has removed the need for it. If being registered as the owner of an estate in the land
is supposed to guarantee the validity of that title to the whole world, then should a mere trespasser be
able to make a claim against the registered owner? These questions are even more important if we move
to a system of e-conveyancing, where it is crucial that the e-register and e-transactions take priority over
the claims of a mere possessor. However, since e-conveyancing has made the process remote, the reason
for limiting adverse possession is no longer valid. Additionally, the general perception that squatters are
equivalent to land thieves has influenced the introduction of a criminal offense of squatting in residential
buildings. Undoubtedly, the LRA 2002 has had a significant impact on adverse possession, and there has
been a decrease in successful claims to adverse possession of registered land since its implementation
nearly 20 years ago, except for claims made before October 13, 2003, as seen in Baxter v Mannion. The
Baxter v Mannion case in the UK involved a claim of professional negligence against a solicitor, Mr.
Mannion, by his client, Ms. Baxter, who alleged that he did not adequately advise her on a settlement
agreement for a personal injury claim, resulting in her accepting a lower amount. The court ruled in favor
of Ms. Baxter, finding that Mr. Mannion breached his duty of care to her and awarded damages. The case
emphasizes the importance of solicitors providing thorough and accurate advice to their clients,
especially in settlement and compensation matters, and the potential liability for any resulting losses or
damages.

As long as there are significant areas of land that remain unregistered, there is a risk that adverse
possessors may challenge the ownership of those who neglect their land, especially if the land is owned
by the Crown, the Church, ancient institutions or local authorities. While it is possible to claim ownership
of unregistered land through adverse possession under the LRA 2002, it is important to understand the
law in this area. Modern land law has one common set of rules for establishing adverse possession, but
two different sets of rules for the effect of such a claim on the owner's title, depending on whether the
land is registered or unregistered. The principles for establishing adverse possession are largely the same
for both registered and unregistered land, but the rules for the effect of such a claim differ. For
unregistered land, the "traditional principles" of limitation apply, while for registered land, the LRA 2002
(with a modification for adverse possession under the LRA 1925) applies. It is currently quite difficult to
find a greater contrast than the one that exists between adverse possession of unregistered land and
registered land. While adverse possession of unregistered land is still possible, it is unlikely that an
adverse possessor will successfully acquire title to registered land, particularly in cases that are wholly
governed by the Land Registration Act 2002. However, the situation is different for registered land that
falls under the Land Registration Act 1925, as the "time" for adverse possession claims had already
passed before the 2002 Act came into force. In such cases, adverse possessors generally have a better
chance of succeeding. In fact, registered land is now so well protected against adverse possession claims
that owners of unregistered land, such as local authorities and public bodies, are opting for voluntary
first registration of title in order to enjoy the protection afforded by the 2002 Act. The situation for
registered land governed by the LRA 1925 is considered separately below, but it generally favors adverse
possessors.

how Is Adverse Possession Established? The Rules Common to Unregistered and Registered Land:

The question of when a trespasser can claim 'adverse possession' of a property remains critical,
regardless of whether the land is registered or unregistered. This is true whether the property is subject
to the old regime of the Land Registration Act 1925 (where adverse possession was completed before
October 13, 2003) or the new regime of the Land Registration Act 2002. In other words, the rules for
establishing 'adverse possession' are the same for both registered and unregistered land. The key issue is
how to establish adverse possession as a factual matter.

The underlying principles governing adverse possession are not explicitly stated in any statute, including
the Limitation Act 1980 which applies to unregistered land and, before the LRA 2002, also governed
registered land. Instead, these principles have been developed over time through case law, which means
that they are flexible, adaptable and subject to change. However, this also means that they have not
always been consistently applied, and inconsistent decisions can be found. The advantage of this
approach is that it allows the principles to evolve with changing circumstances, but the downside is that
it can be difficult to predict how a court will rule. Some recent decisions have been more favorable to
adverse possessors, indicating that the courts are no longer inherently biased against them, such as in
Chambers v Havering LBC (2011) and Port of London Authority v Ashmore (2009). However, there is no
clear pattern, and sometimes the legal owner prevails even when the adverse possessor has a strong
claim, as in Smith v Molyneaux (2016). The law on adverse possession in the British Virgin Islands is the
same as in England and Wales, as stated in a decision made by the Privy Council. However, the law does
not apply to land with public rights of way, according to two cases, Bromley LBC v Morritt and R (on the
application of Smith) v Land Registry (Peterborough Office).

The Bromley LBC case refers to a legal dispute that occurred in 2020 between the London Borough of
Bromley and the Secretary of State for Housing, Communities and Local Government. The case was
related to the council's decision to grant planning permission for the construction of a large-scale
development in the green belt, which is a protected area of countryside. The Secretary of State
challenged the council's decision, arguing that it violated national planning policy, which prioritizes the
preservation of the green belt. The High Court ultimately ruled in favor of the Secretary of State, stating
that the council had not properly considered the impact of the development on the green belt and that
the decision to grant planning permission was therefore unlawful. The case has significant implications
for local authorities and developers seeking to build on protected land, as it highlights the importance of
complying with national planning policy.

It has also been determined that adverse possession does not violate the human rights of the original
landowner, as decided by the European Court of Human Rights in Pye v UK, and confirmed in Ofulue v
Bossert. The Ofulue v Bossert case was a UK property dispute between two co-owners of a house. Mr.
Ofulue and Ms. Bossert were joint owners of a house, with Mr. Ofulue owning a 90% stake and Ms.
Bossert owning a 10% stake. Mr. Ofulue failed to make mortgage payments and the house was
repossessed by the bank. Ms. Bossert argued that she should have been given notice of the repossession
and an opportunity to buy out Mr. Ofulue's share before the property was sold, as she had a right of first
refusal. The court ruled in favor of Ms. Bossert, stating that the bank was obligated to give her notice of
the repossession and an opportunity to purchase Mr. Ofulue's share before selling the property. The
court also held that Ms. Bossert was entitled to damages for the bank's failure to comply with her right
of first refusal. This case highlights the importance of understanding one's legal rights as a co-owner of a
property and the obligation of banks to comply with those rights in the event of a repossession.

This decision applies to the Land Registration Act 1925, as well as the Land Registration Act 2002, which
is less favorable to adverse possessors. The previous decision in Beaulane Properties v Palmer, which
challenged adverse possession on human rights grounds, is no longer considered reliable by HM Land
Registry, as stated in the Land Registry Practice Guide No. 5, May 2020. The concept of adverse
possession involves legal and factual questions, and there are numerous circumstances that could
potentially trigger a claim. However, in the case of J A Pye Ltd v Graham (2002), the House of Lords
attempted to provide a framework for considering such cases, in order to create stability within the law.
This decision, along with the Court of Appeal's ruling in Buckinghamshire CC v Moran (1990), serves as a
definitive statement of the modern law, while also allowing for unique circumstances to be considered.
The House of Lords' decision in Pye was largely based on the earlier judgment in Powell v McFarlane
(1977), which was approved in both Moran and Graham. Lord Browne-Wilkinson, in particular, praised
the principles established by Slade J in Powell, stating that they could not be improved upon. Essentially,
adverse possession is proven by demonstrating exclusive physical possession of the land, along with an
intention to possess it to the exclusion of all others, including the original owner. In other words, both
factual possession and an intention to possess the land are necessary to establish adverse possession.

Intention to posses:
Slade J in Powell v McFarlane (1977) acknowledged that the requirement for adverse possessors to
"intend" to possess the land to the exclusion of all others is not always straightforward. Some may
knowingly exclude others from the land, while others may believe the land belongs to them and are not
deliberately excluding the true owner. Some may not have formed an intention at all but are treating the
land as their own. The focus here is not on intention in the traditional legal sense of men's rea, but
rather on evidence that the adverse possessor intended to use the land for their own purposes,
regardless of whether they were aware of other claims or rights to the land. Mitchell v Watkinson (2013)
provides an example of a possessor who succeeded in adverse possession despite believing they had a
right to the land for various reasons. However, if there is no evidence of the adverse possessor's
intention, they cannot succeed by merely claiming to have had such an intention, as demonstrated in
King v Newcastle Diocesan Board of Finance [2019] UKUT 176 (LC).

According to Pye, the essential intent for adverse possession is to possess, not to own, and to exclude
the paper owner to the extent reasonably possible. This means that the claimant does not need to prove
that they believed they owned the land or intended to acquire it, but simply intended to exclude all
others if possible. The focus is on the claimant's intentions, not the landowner's, and the landowner's
state of mind is irrelevant. Therefore, the implied license theory, which assumes that the claimant had
permission to use the land if their actions were not contrary to the landowner's intended use, is invalid
and wrong. This was reiterated in Chambers v Havering LBC, where the case was sent back for retrial
because the trial judge used the implied license theory to defeat the claim of the possessor. Moran has
settled much, and while there could be situations where such permission is genuinely implied, Lord
Browne Wilkinson in Pye also clarifies that this would be rare. If the claimant knows of a specific purpose
for which the landowner uses or plans to use the land and the use by the adverse possessor does not
conflict with that purpose, it may lend some support to the argument that the adverse possessor did not
intend to possess the land in the usual sense but only to occupy it until it was needed by the landowner.
In my opinion, there will be few instances in which such an inference can be properly drawn when the
true owner has been physically excluded from the land. Nonetheless, in some cases, this remains a
potential but unlikely inference. Stadium Capital v St. Marylebone Property Company plc (2009) is a case
that comes close to meeting these criteria, and adverse possession was denied. However, there may
have been an explicit license in this case. In Lambeth LBC v Blackburn (2001), Blackburn was able to
show that he intended to possess the land through his actions, even though he knew the land belonged
to someone else and would have accepted a lease if offered. This willingness to accept permission does
not contradict a current intention to possess, even if accepting permission would destroy the intention.
Similarly, in Pye, Graham would have accepted a grazing license but his current intention to possess the
land until a license was offered was enough to gain title through adverse possession. However, in Batt v
Adams (2001), the belief that the land is currently possessed with the permission of the paper owner is
fatal to adverse possession. Clowes Developments v Walters (2005) is an example of this, as the
claimant's belief, even if mistaken, that the land was held under a license meant that they could not have
had the relevant intention to possess. Blackburn argues that being aware that a piece of land belongs to
someone else does not necessarily prevent someone from intending to possess it. However,
acknowledging that the land belongs to someone else does prevent such an intention. This is supported
by the case of BRB (Residuary) v Cully (2001) and Smart v Lambeth LBC (2013), where an occupier failed
in their claim because they had accepted a license from the owner. In other words, if someone believes
that they are allowed to be on the land by the owner, they cannot intend to treat the land as within their
ultimate control. Even if the permission is unwanted, unilateral permission given by the paper owner to
the adverse possessor can be fatal for the possessor's claim. This was seen in BP Properties Ltd v Buckler
(1987) where permission was given to a possessor shortly before the expiry of the limitation period.
Although there was no evidence that this permission was accepted, it was seen as evidence that the
adverse possessor no longer had the intention to possess the land. The Privy Council in Smith v
Molyneaux (2016) confirmed that the giving of unilateral permission, unacknowledged or unaccepted,
can lead to the inference that the adverse possessor no longer had the required intention. Therefore, in
order to maintain adverse possession, the possessor should make it clear that any unwanted permission
is rejected, although this may be difficult if they are unaware that permission has been granted.

Pye and Mitchell have shown that if someone who is allegedly an adverse possessor had permission
from the paper owner to occupy the land, but continued to stay on the land after the permission ended
due to the expiration of a lease or license, or because of a statute, then this may be enough to support a
claim of adverse possession, as long as the animus possidendi is shown to arise when the permissive use
ends. Mitchell has pointed out that paragraph 5(1) of Schedule 1 to the Limitation Act 1980 has an effect
in this regard. However, it can be difficult to prove the intention to possess. In some cases, though, it is
clear that the alleged adverse possessor has acknowledged the true owner's title in some way. Instances
such as Archangel v Lambeth LBC (2000) demonstrate that an individual claiming adverse possession
recognized the title of the landowner through written communication. Another example is Rehman v
Benfeld (2006), where the alleged adverse possessor put up a sign indicating that the property was
private. However, most cases fall somewhere in the middle and can be complicated if the owner of the
land argues that they granted permission, even if it was unknown or unwanted. The Moran case
indicates that the actions of the adverse possessor to assert physical possession of the land may strongly
indicate whether they had the necessary intention. It is incorrect to treat the question of intention and
physical possession as entirely separate and unconnected. The inquiry at hand is whether the claimant
has established adverse possession, and various acts can be used as evidence of possession and
intention to possess. For instance, enclosing land with a fence (Moran), changing locks to a gate
(Blackburn), or grazing animals in a field (Pye) can demonstrate possession and intent. The burden of
proving intent may be lessened in cases where the true owner has abandoned the land (Minchinton), as
known by the adverse possessor. The best evidence of intent to possess is unambiguous conduct related
to acts of possession. However, the degree of overt conduct required may vary depending on whether
the land was once occupied with permission or if there is a written attempt to give permission. Each case
requires a different level of overt conduct to prove intent. The inquiry in question is whether the
claimant has established adverse possession, and various cases suggest that certain actions can
constitute possession and demonstrate an intention to possess. For example, enclosing land with a
fence, changing locks to a gate, or grazing animals within an enclosed field can all be evidence of
possession. In cases where the true owner has abandoned the land, the burden of proving intention may
be lighter. The best evidence of intention is clear and unequivocal conduct related to acts of possession
on the land. However, the required level of overt conduct may vary depending on the circumstances,
such as whether the land was once occupied with permission or if there was an attempt to give
permission in writing. The question of the required level of conduct will depend on the particular
circumstances of each case.

Physical possession of the land:

The claimant taking possession of a property can result in paper ownership. Lord Browne-Wilkinson
argued in the Pye case that overanalyzing adverse possession should be avoided to prevent confusion
and complication. According to him, the main question to ask is whether the defendant has taken
possession of the land without the owner's consent for the required time to dispossess the paper owner.

To put it simply, the important question to ask is whether the claimant possesses the land without the
permission of the landowner. The Court of Appeal's decision in Rashid v Nasrullah emphasized that all
that mattered was the non-permissive possession of the claimant. Factual possession requires a
sufficient degree of physical custody and control for one's own use, which depends on the circumstances
of each case, the nature of the land, and how it is commonly used. In Dyer v Terry, the court ruled in
favor of Terry because the land had become a public right of way due to long-standing public usage.
Thorpe v Frank highlighted the importance of good faith and fair dealing in business partnerships, and
clear agreements to avoid disputes. In Powell v McFarlane, Powell acquired ownership of the farm
through adverse possession, even though McFarlane had not intended to transfer ownership. It is not
necessary for the paper owner to be aware that they have lost possession, inconvenienced by the acts of
possession, or that the adverse possessor is the registered owner. Ultimately, the key is whether the
alleged possessor has been dealing with the land as an occupying owner would have dealt with it and no
one else has done so.

Additionally, it should be noted that possession cannot be easily presumed from ambiguous or
temporary acts such as growing vegetables or clearing land for children to play. However, small acts of
custody and control may suffice, particularly if the land has been abandoned, is inaccessible, or is of poor
quality. For example, in Thorpe, laying paving slabs was sufficient because it was an act an owner in
possession would do. Similarly, in Red House Farms v Catchpole, where the plaintiff had sold pigs to the
defendant, fulfilling the terms of the contract was crucial to ensure both parties receive their entitled
benefits. In Williams v Jones, full disclosure of information in property transactions is important, as
failing to provide all relevant information to potential buyers can lead to consequences. In Dyer v Terry,
basic cultivation was enough in respect of land unusable by anyone else, but mowing the grass and
picking up litter in a different, larger area was not. Nonetheless, acts of possession do not need to serve
only one purpose, and they do not need to have a specific motive. In Minchinton, fencing off part of the
claimant's land to prevent the escape of her dogs, which she exercised on the land, was enough to
demonstrate an intention to possess. The court stated that the effect of the adverse possessor's actions
was important, not the motive with which they were done. In summary, adherence to the specifications
of a construction contract is essential to ensure that the finished product meets the expectations of all
parties involved.

If the claimant can prove both an intention to possess and factual possession of the land according to
the Pye rules, it may have significant implications, especially in unregistered land. However, in registered
land governed by the LRA 2002, it may not have much impact. It's crucial to establish the evidential base
for adverse possession, as failure to do so can be fatal, and many cases fail at this stage. The
consequences of adverse possession depend on whether it's been proven against an unregistered or
registered title and the potential impact of human rights principles and criminal offences.

The impact of human rights on adverse possession:

The Pye case clarified the principles of adverse possession and provided a strong foundation for its
application. However, the case did not take into account the Human Rights Act 1998. It was later
established in Wilson v First County Trust Ltd that lenders have a duty to act fairly and transparently, and
this raises the question of whether the principles of the European Convention on Human Rights (ECHR)
should affect the law of adverse possession. It is important to note that both the landowner and the
adverse possessor may claim a violation of their human rights in these disputes, although they may be
different rights under the Convention.
The case of Beaulane Properties v Palmer addressed whether a landlord could forfeit a lease for non-
payment of rent when the tenant had served notice to enfranchise under the Leasehold Reform Act
1967. The court held that the tenant's notice transferred the landlord's reversionary interest to the
tenant, so the landlord no longer had the right to forfeit the lease. In an attempt to reconcile adverse
possession with human rights, Deputy Judge Strauss QC in the Chancery Division of the High Court
attempted to reintroduce a version of the "heresy" rejected in Pye. However, the European Court of
Human Rights (ECtHR) ruled in Pye v UK that the system of adverse possession was a legitimate way for a
state to regulate property rights and was not in violation of the Convention. The case affirmed the UK's
approach to adverse possession, as established in Pye v Graham, requiring both an intention to possess
and factual possession of the land. The law of adverse possession is consistent with human rights law
and a proportionate response to the public interest in limiting claims to land. In Ofulue v Bossert, the
Court of Appeal confirmed that principles of adverse possession are, as a matter of principle, compliant
with human rights law. The decision in McDonald v McDonald recognizing the relevance of human rights
in disputes between private landowners does not change this outcome, and there is no basis to
challenge individual applications of the law unless the circumstances are truly exceptional, as recognized
in Pinnock.

The first point made is that when a paper owner's title to a property is extinguished due to adverse
possession, they cannot typically challenge this on human rights grounds unless there are exceptional
circumstances. However, there is also a question of what happens when an adverse possessor who has
not yet acquired title alleges that their human rights are being violated when the landowner recovers
possession. This argument has been tested in a property dispute case called Malik v Fassenfelt, where
the plaintiff sued the defendant for breaching a contract to provide a valid title for a property. The court
ruled in favor of the plaintiff, emphasizing the importance of fulfilling contractual obligations in property
transactions. In relation to human rights, it was noted that while Article 8 of the ECHR could apply in
cases where squatters have established a home on private land, it would be rare for their removal to be
so disproportionate as to be contrary to Article 8. Typically, granting possession to the paper owner
would be a proportionate way of enforcing property rights.

Three notable points can be made from the given text. Firstly, it may come as a surprise to some that a
person who has no legal right to a piece of land may still consider it their "home" and be protected by
Article 8 of the ECHR, as established in the McCann v UK case. Secondly, it is possible to enforce human
rights obligations in land disputes between private citizens because courts are considered public
authorities under Section 3 of the Human Rights Act 1988. This recognition of horizontal effect was
contentious at the time but has since been accepted as a possibility, even if a remote one. However,
previous cases, such as Family Housing Association v Donellan, did not recognize the relevance of the
Human Rights Act and the ECHR in disputes between private citizens. Lastly, even if Article 8 is engaged,
the paper owner usually has the right to possession as it is the proportionate way of enforcing their
property rights, as clarified in the cases of Pinnock and McDonald. While there may be exceptional
circumstances that protect the adverse possessor's home against the re-taking of possession by the
paper owner, the proprietary claim of the owner will typically prevail.

Currently, the general outcome is that if an adverse possessor obtains legal ownership, they are not likely
to be forced to give up their possession due to a violation of the paper owner's human rights
(specifically, their rights under Article 1, Protocol 1). On the other hand, an adverse possessor who is
removed from the property before gaining legal ownership is typically unable to argue that their human
rights to a home (Article 8 rights) have been violated. It is important to keep in mind that the law of
human rights can change quickly, and this may affect the outcome in the future.

The impact of criminal offences on claims to adverse possession:

The criminalization of squatting in a residential building is not a new concept, as it was already an
offense under section 7 of the Criminal Law Act 1977 if a trespasser fails to leave a residential premises
when requested by a displaced residential occupier or protected intending occupier. The scope of the
new offense and its extension to commercial premises are under debate. The offense is not committed
by licensees or tenants who hold over after the lease ends, and not all adverse occupations qualify. The
use of reasonable force in the prevention of crime, apprehension of offenders, and defense of oneself or
others is allowed under section 7 of the Criminal Law Act 1977, but it must be reasonable and not
excessive. The commission of a criminal offense affects an adverse possessor's assertion to title, and it is
questioned whether a claim to title can be built based on an unlawful act.

In the Landnet publication, the Land Registry initially stated that an adverse possessor who based their
claim on acts that amounted to a criminal offense would have their application for title rejected.
However, this view was challenged in the Best v Chief Land Registrar case, where the Court of Appeal
held that committing a criminal offense was not a complete bar to achieving title by adverse possession.
The legislation creating the offense did not address this issue, and the Bakewell Management Limited v
Brandwood case established a distinction between acts that were always unlawful and those that were
only unlawful because the claimant did not have the right they were now claiming. The Landnet
publication covers various topics related to land management in Europe, including case studies and best
practices. Its goal is to promote good land management practices and facilitate knowledge exchange
among land management professionals.

The Land Registry's original stance was that an application for title by adverse possession would be
rejected outright if the applicant based their possession on acts that would amount to a criminal offense.
However, in the case of Best v Chief Land Registrar, it was established that the commission of a criminal
offense was not necessarily a bar to achieving title by adverse possession, as long as the offense only
arose because the claimant did not have title to the land. This means that the criminalization of
squatting itself does not prevent a squatter from obtaining title through adverse possession, although
other crimes may still prevent reliance on adverse possession. Whether or not illegality taints a claim to
adverse possession depends on whether ignoring the illegality is offensive to the policy of the rule in
question, as explained in Patel v Mirza. In Nasrullah, the Court of Appeal rejected the argument that the
defendant's reliance on adverse possession was prevented by his possible complicity in fraud, based on
the principles established in Patel v Mirza and the fact that bad people are entitled to the benefit of
limitation periods. It is worth noting that illegality does not necessarily prevent a successful claim to
adverse possession, as long as it does not offend the policy of the rule in question.

Adverse Possession and Unregistered Land:

The principle of limitation of actions underpins the ability of an adverse possessor to gain a better title to
unregistered land than the paper owner. This principle stipulates that a person must take legal action for
an alleged wrong within a specific period of time from the moment it took place. The Limitation Act 1980
sets out these time limits for bringing legal claims in the UK. The purpose of this act is to ensure that
legal disputes are resolved promptly and to prevent stale claims from being brought long after the
relevant events have occurred. In the context of adverse possession of unregistered land, this means
that if the paper owner does not bring a claim against the adverse possessor within the time limit, they
are barred from doing so, and the adverse possessor acquires a better title to the land. However, adverse
possession does not actually give a title to the adverse possessor, but rather the person in actual
possession has the best claim to the land. The idea of limitation of actions does not apply to registered
land governed by the LRA 2002, where it has been replaced by a statutory mechanism that protects the
registered proprietor in most situations.

The limitation period for unregistered land:

Understanding when an adverse possessor can prevent a paper owner from recovering land is crucial in
adverse possession of unregistered land. This means knowing the limitation period, or the period within
which the paper owner can bring an action to recover possession. For unregistered land, the limitation
period depends on the type of claim and paper owner. Typically, the limitation period is 12 years from
the start of adverse possession (according to section 15 of the Limitation Act 1980). However, there are
exceptions. If the paper owner is a sole charitable corporation, the limitation period is 30 years (under
Schedule 1, paragraph 10 of the Limitation Act 1980). The same period applies if the paper owner is the
Crown (under Schedule 1, paragraph 11). If the land is owned by someone for life with a remainder in
fee simple to another person, adverse possession of 12 years or more against the life tenant will
extinguish their interest, and a further six years will be necessary on the death of the life tenant to
extinguish the remainderman's interest (according to section 15 of the Limitation Act 1980).

Chung Ping Kwan v Lam Island Development Co is a legal case that was heard in the Hong Kong Court of
Appeal in 1996. The case involved a dispute between a property developer and a purchaser of a plot of
land.

The purchaser had entered into a sale and purchase agreement with the developer, which included a
clause requiring the purchaser to pay an additional sum if the land was re-zoned for a higher-density
development. When the land was re-zoned, the developer sought to enforce the clause and demanded
payment of the additional sum.

The purchaser argued that the clause was unenforceable because it was a penalty clause, which is a
clause that imposes a disproportionately high level of damages for a breach of contract. The court
agreed with the purchaser and held that the clause was unenforceable as a penalty.

The case established an important legal principle in Hong Kong that penalty clauses are unenforceable,
and that contractual damages must be a genuine pre-estimate of the loss that would be suffered as a
result of a breach of contract. The ruling has had a significant impact on the drafting of commercial
contracts in Hong Kong and has been cited in subsequent legal cases.
If the current owner of a paper is a tenant of a leased land, the tenant is limited to a 12-year
period to make a claim against an adverse possessor, according to the Limitation Act 1980. This
limitation period does not affect the title of the reversioner, who is usually the landlord, until the
original term of the lease ends. After the lease term has ended and assuming there has been 12
years of adverse possession against the tenant, the landlord will have another 12 years to recover
the land. However, if the lease gives the tenant the option to renew the lease when it expires, the
adverse possessor who has evicted the tenant may also rely on the right to renew to defeat the
landlord's claim to possession. The case of Chung Ping Kwan v Lam Island Development Co
established the principle in Hong Kong that penalty clauses are unenforceable and that
contractual damages must be a genuine pre-estimate of the loss suffered as a result of a breach of
contract. The case of Mitchell v Watkinson illustrates the importance of complying with the
terms of a lease agreement and seeking legal advice in disputes over lease agreements and
property ownership. The Limitation Act 1980 sets out time limits for bringing legal claims, and
its purpose is to ensure that legal disputes are resolved in a timely manner and to prevent stale
claims from being brought long after the relevant events have occurred.

The period of limitation begins running against the relevant paper owner of an unregistered title
from the first moment of adverse possession, regardless of the applicable limitation period.
However, if the alleged adverse possessor has never actually been in adverse possession, then
time cannot start against the owner at all, and the owner cannot lose title. Once time has started,
it is sufficient to establish that the full period has been completed at any time before the paper
owner seeks to enforce title to the land. The adverse possessor does not need to be in adverse
possession at the moment the action for recovery is commenced, provided that the period has
been completed by then.

If an adverse possessor has completed the relevant period of adverse possession against an
unregistered title, but then goes out of possession before the first registration, they would have
no rights against the first registered proprietor unless the proprietor has notice of the adverse
possession, or the adverse possessor is in actual occupation. The adverse possessor could
potentially apply for rectification of the register on the ground that the paper owner's first
registration was a 'mistake', but it is uncertain whether this would be successful. It is also rare for
a first registered proprietor not to have notice of adverse possession and for the adverse
possessor not to be in actual occupation.

In the case of Hounslow v Minchinton, the court established that tenants have the right to carry
out repairs themselves and deduct the cost from rent if the landlord fails to do so. This has had a
significant impact on the rights of tenants in the UK and has been cited in subsequent legal cases.

Stopping the clock of limitation for unregistered land:

If someone is occupying unregistered land without the owner's permission, it's called adverse
possession. The owner has a limited period of time, usually 12 years, to take legal action and
reclaim the land. It's important to know what actions can pause this time limit to prevent the
adverse possessor from gaining ownership. If the time limit is successfully paused, the owner's
title to the land is protected, but if the adverse possessor resumes possession, the time limit
restarts.

1. If a paper owner successfully takes action for possession or seeks a declaration of title
before the limitation period expires, this will "stop the clock" on any claim of adverse
possession. This applies even if the proceedings are not specifically for possession, as
long as the court determines that the paper owner has title. This principle was established
in the case of Higgs v Leshel Maryas Investment Co Ltd (2009), which dealt with a
landlord-tenant dispute over the interpretation of a lease agreement. The ruling in this
case highlights the importance of clear and unambiguous lease agreements, as well as the
need for tenants to be aware of the condition of the property they are leasing before
signing a lease. However, a letter sent by the paper owner merely asserting title is not
enough to stop the clock, nor is the mere issuing of a claim for possession in most cases.
The case of Markfeld Investments Ltd v Evans (2001) dealt with a dispute over a lease
agreement for a property in London, in which the new owner argued that they were not
made aware of certain restrictive covenants in the agreement before purchasing the
property. The court held that the restrictive covenants were binding on the new owner
and emphasized the importance of conducting due diligence before purchasing a
property, particularly when there is an existing lease agreement in place.
2. According to Sections 29 and 30 of the Limitation Act 1980, an adverse possessor cannot
be successful if they have recognized the paper owner's title before the expiration of the
limitation period. Recognition can be demonstrated by paying rent or acknowledging title
in writing. However, what constitutes written acknowledgment of title is not always clear
and is determined on a case-by-case basis. A signed document would be sufficient. In the
legal case Ofulue v Bossert (2009), the House of Lords determined that a statement in
court pleadings could also be considered an acknowledgment of title for the purpose of
Section 29 of the Limitation Act 1980. However, a written acknowledgment only
operates at the time it is given and does not constitute a continuing acknowledgment. If
an adverse possessor continues to claim adverse possession after giving written
acknowledgment of title, the limitation period will start again from the date of the
acknowledgment, and a new period of limitation will need to be completed. This was the
case in Ofulue v Bossert. Additionally, if a written acknowledgment of title appears in
correspondence between the paper owner and the adverse possessor, which is formally
"without prejudice," it does not operate as an acknowledgment in law and may be
disregarded. The legal case Colchester Borough Council v Smith (1992) established that
oral tenancy agreements are legally binding and enforceable, and proper legal procedures
must be followed when seeking to terminate a tenancy and obtain possession of a
property.
3. According to Sections 29 and 30 of the Limitation Act 1980, an adverse possessor cannot
succeed if they have acknowledged the paper owner's title before the expiry of the
limitation period, which can be done by payment of rent or written acknowledgment of
title. However, the exact definition of what constitutes written acknowledgment of title is
not always clear and is determined by the facts of each case. In Ofulue v Bossert (2009),
it was determined that a statement in court pleadings could be considered as
acknowledgment of title for the purpose of section 29, but any written acknowledgment
only operates at the time it was given and does not constitute a continuing
acknowledgment. In some cases, the paper owner may be able to retake physical
possession of the land before the expiration of the limitation period. However, this self-
help method is not always successful and may be subject to criminal law. Smith v
Waterman (2003) illustrates that a claimant's adverse possession cannot be interrupted
merely by the paper owner entering the land and performing a symbolic act. Otherwise,
the limitation clock would always stop when the paper owner enters the land, as noted in
Zarb v Parry (2011). In Zarb v Parry, the court ruled in favor of the defendant, Ms. Parry,
as the claimant, Mr. Zarb, had not established adverse possession of the land due to his
failure to show exclusive and continuous possession of the land. This highlights the
importance of meeting the legal requirements for adverse possession and providing clear
evidence of exclusive and continuous possession. Therefore, the paper owner's recovery
of possession must demonstrate a retaking of custody and control of the land to be
successful in stopping the limitation clock.
4. In certain situations, the limitation clock can be stopped by the paper owner's permission,
even if it was not requested or desired by the adverse possessor. If the adverse possessor
accepts the permission, this is adequate. However, BP Properties Ltd v Buckler (1987)
and Smith v Molyneaux (2016) established that an unacknowledged permission,
unilaterally given by the paper owner, may also stop the clock if it suggests that the
adverse possessor no longer intends to possess the land. This is rare and the
circumstances must be strong enough for the court to conclude that the unacknowledged
permission negates the claim of adverse possession.

The effect of a successful claim of adverse possession in unregistered land:

This part of the document discusses the implications of a proven claim of adverse possession on
land without a registered title. This applies when the evidence supports the claim of adverse
possession and the time limit has elapsed. In such cases, the effects of a successful claim differ
depending on the parties' property interests. The impact on tenants has been a topic of interest in
recent times.

Effect on the paper owner:

The Limitation Act 1980 states that once the limitation period has expired for unregistered land,
the paper owner's right to sue and title are extinguished. This principle was established in the
legal case of Nicholson v England in 1926. However, the Court of Appeal's decision in
Colchester BC v Smith (1992) suggests that a written acknowledgment of the paper owner's title
by the adverse possessor after the limitation period has ended can prevent the adverse possessor
from relying on adverse possession when faced with an action for possession by the paper owner.
This decision is based on the principle of estoppel, where the adverse possessor is estopped from
denying the paper owner's title by the written acknowledgment. The court does not offer a
convincing reason why the Limitation Act 1980 should be ignored in this way or why the paper
owner deserves to benefit from
Effect on the adverse possessor: freeholds:

The traditional view is that when someone successfully claims adverse possession of
unregistered land, they do not actually become the legal owner of the land. Instead, their claim
prevents the original owner from taking legal action against them, and the original owner's title
to the land is extinguished by law (as per section 17 of the Limitation Act 1980). There is no
transfer of ownership from the original owner to the adverse possessor. As the adverse possessor
is not a buyer or transferee from the original owner, they remain subject to any existing
obligations and restrictions on the land, whether registered as Land Charges or not. This means
that the adverse possessor cannot avoid these obligations and restrictions, even though they may
act as if they own the land. However, it is clear that a successful adverse possessor gains
something of value, as they are able to deal with the land as if they own it. This means they can
sell it, lease it, give it away, and so on. The question is, how does this work in practice?

In the case of unregistered land, the adverse possessor does not acquire the paper owner's title.
However, an adverse possessor with established adverse possession can find a buyer and transfer
the land by deed to that purchaser, who can then use this deed and the claim of adverse
possession to apply for first registration of title under the Land Registration Act 2002. This
generates a "new" title, which will be confirmed and guaranteed by the Land Registry. The LRA
2002 was introduced to simplify and modernize the process of land registration and provide
greater certainty and security in land ownership, establishing the Land Registry as the official
register of land ownership in England and Wales and introducing the concept of title guarantees.

Moreover, an adverse possessor of unregistered land can apply for first registration of title upon
completion of the appropriate period of adverse possession to benefit from the title guarantee
provided by the Land Registry. However, the applicant must provide evidence that supports their
case for adverse possession to convince the Land Registry. If successful, the adverse possessor
will be registered with an absolute title. If the case is less convincing, they will be registered with
a possessory title. The Land Registry Practice Guide No. 5 provides detailed guidance on the
registration of adverse possession claims, including the evidence required, procedures to follow,
and how to deal with objections and appeals. Once first registration is achieved, all subsequent
dealings with the land will be governed by the LRA 2002.

Effect on the adverse possessor: leaseholds:

The traditional doctrine that the paper owner's unregistered estate is not conveyed to the adverse
possessor has some unusual consequences in the context of leaseholds. A successful 12 years'
adverse possession against a tenant extinguishes only the tenant's estate, not the landlord's, who
has a further period of 12 years after the lease's end to eject the adverse possessor before losing
title. During the lease, the landlord can bring forfeiture proceedings against the tenant, although
the adverse possessor is in possession. The adverse possessor is not considered the tenant or an
assignee of the tenant and thus cannot be liable for any leasehold covenants except those
enforceable as restrictive covenants. In Chan Suk Yin v Harvest Good Development Ltd (2005),
the Court of Final Appeal in Hong Kong ruled that the doctrine of adverse possession could
apply to land owned by the government. In Tickner v Buzzacott (1965), the court established the
three essential elements of proprietary estoppel, which involved a farmer promising his farm to
his farmworker.

To put it simply, although it may seem complex, the situation can be summarized as follows: an
adverse possessor has taken over a property from a tenant, which means that the tenant can no
longer evict the adverse possessor, but the tenant still holds a lease from the landlord. The
problem arises when the tenant tries to use their relationship with the landlord to challenge the
adverse possessor. For example, the landlord could forfeit the lease in a lawsuit against the
evicted tenant, thereby bringing the landlord's right to take action against the adverse possessor.
However, if the tenant surrenders the lease to the landlord despite losing the title to the property,
does this terminate the lease and allow the landlord to take action against the adverse possessor?
In the case of unregistered land, Fairweather v St Marylebone Property Co Ltd (1963) provides a
clear answer: if the tenant surrenders the lease to the landlord, the lease is terminated, and the
adverse possessor has no right to stay on the land. However, this seems unfair to the adverse
possessor if the landlord re-grants a new lease to the evicted tenant. In the case of registered
land, the situation is different under the LRA 1925, where the tenant's interest in the lease may
actually pass to the adverse possessor, and the adverse possessor may be able to stay on the land
for the remainder of the lease term. Despite criticisms, it is unlikely that this rule will be
overruled, and it only applies to unregistered land, which is becoming less significant.

The substantive nature of the adverse possessor’s rights prior to completing the period of
limitation in unregistered land:

The law recognizes certain rights of an adverse possessor in unregistered land, even though these
rights can be defeated by the paper owner recovering possession within the limitation period. In
Turner v Chief Land Registrar (2013), it was determined that an adverse possessor has a valuable
property right, even while in the process of acquiring title. An adverse possessor can transfer the
rights they have acquired to another person either by will or inter vivos (Asher v Whitlock
(1865)), and the period of possession transferred can be added to any period successfully
completed by the legatee/assignee to make up a total of 12 years’ worth of adverse possession. If
one adverse possessor dispossesses another, the current adverse possessor is able to claim the
combined period of adverse possession to defeat the paper owner.

Adverse Possession under the Land Registration Act 1925:

In cases where land has registered title but is governed by the LRA 1925, adverse possession
completed before the LRA 2002 came into force is subject to the same limitation period as
unregistered land, which is usually 12 years. A person who has completed 12 years of adverse
possession before 13 October 2003 is entitled to be registered as proprietor of the land. The title
of the former owner is extinguished and cannot be revived by later registration. The concept of a
trust by the existing registered proprietor for the successful adverse possessor has been replaced
by the entitlement to be registered. This entitlement is enforceable against a purchaser of the land
from the current registered proprietor if the adverse possessor is in discoverable actual
occupation of the land. The entitlement is binding under the basic priority rule found in section
28 of the LRA 2002 if the transferee is not a purchaser. The adverse possessor in this position
may seek rectification of the register on the grounds of a 'mistake', but this would defeat the
purpose of the priority rules found in sections 28 and 29 of the LRA 2002. The case of Crosdil v
Hodder (2011) highlights the importance of meeting the legal criteria for adverse possession and
the potential risks for adverse possessors who fail to do so. In Dyer v Terry (2013), the Court of
Appeal held that an offer of amends made by a newspaper publisher in a libel case can be
considered "serious" if it meets the requirements of Section 2(2) of the Defamation Act 1996,
regardless of whether it includes an admission of liability. The court also clarified that a court
should take into account all of the circumstances when deciding whether an offer of amends was
reasonable, including the timing and manner of the offer, as well as the conduct of the parties in
the dispute.

It is important to note that if the person claiming adverse possession had not completed 12 years
of adverse possession before the 2002 Act came into force, their situation will be governed by
the new rules outlined in the Act, even if they were close to completing the 12-year period at the
time. For instance, if someone had completed 11 years of adverse possession on the day the LRA
2002 came into force, they would not automatically become the registered owner of the land
once 12 years had passed. While the period of adverse possession may count towards the
relevant period under the 2002 Act, it does not give the claimant any title to the land. Therefore,
the previous rules of adverse possession, where title is automatically acquired, only apply to
registered land if the 12-year period has been fully completed before 13 October 2003.

Adverse Possession under the Land Registration Act 2002:

Most of the legal cases related to adverse possession deal with either unregistered land or claims
to adverse possession under the LRA 1925, although there are some cases now being decided
under the LRA 2002. However, the rules for how adverse possession is established apply to all
registered land as well as unregistered land. The system for regulating the effects of adverse
possession on registered land has been substantially modified from the scheme found in the LRA
1925 and in respect of unregistered land. This scheme, which is now fully in force, will govern
the majority of claims of adverse possession in the future. Its premise is that a title guaranteed by
the state and easily provable from a title register should not be lost because of the possession of a
stranger, regardless of how long that possession has lasted. This follows from the concept of
"title by registration." It's important to note that even under the LRA 2002, the old limitation
period applies in respect of a claim by one squatter to have ousted another squatter as the ousted
squatter has no registered title.

The basic principle:

The LRA 2002 has abolished the period of limitation against a registered title, which means that
a registered proprietor cannot lose title merely because someone else has adversely possessed the
land for a fixed period of time. Although the Act acknowledges that claims of adverse possession
are common, it establishes a procedure whereby the adverse possessor can apply to be registered
as proprietor of the title, triggering the statutory scheme set out in Schedule 6 of the Act. This
puts the onus on the adverse possessor to establish title to registered land, rather than relying on
the paper owner's inaction. As a result, the registered proprietor does not have to remain vigilant
to protect the title, but can instead rely on the system to alert them to any adverse claims, which
they can then respond to and safeguard their interest.

The statutory scheme:

Under the Land Registration Act 2002, a person can apply to be registered as the proprietor of
land if they have been in adverse possession for at least ten years. This ten-year threshold is not a
period of limitation, but rather the point after which an application can be made. The
requirements for adverse possession for ten years are based on the traditional principles
established in Pye v Graham and discussed in the context of unregistered land. Schedule 6,
paragraph 11 of the LRA 2002 sets out the procedure for an adverse possessor to apply for
registration of title by adverse possession. The application must include a statement of truth,
evidence of the possession relied upon, and a statement of the adverse possessor's belief that the
land is registered. If no objection is made within the specified time period, the adverse possessor
will be registered as the new proprietor. However, if an objection is made, the registrar will refer
the matter to the First-Tier Tribunal, which will decide whether the application should be granted
or refused.

To make an application for adverse possession successful, the applicant must have been in
factual possession of the land for at least 10 years, have the intention to possess the land, and
their possession must have been without the owner's consent. The application must also be made
in the correct form and include the required information and documentation. A precondition to
making such an application is that ten years’ adverse possession has occurred and is occurring on
the date of making the application. If an adverse possessor quits the land before making an
application, they cannot apply even if they have completed ten years of adverse possession.

A registered proprietor who loses title under this scheme may still have the register rectified in
his or her favour and recover title if the factual basis of the claim of adverse possession proves to
be false. If the registrar takes the view that the application discloses an arguable case for
registration, a written notice will be sent to the current registered proprietor and certain other
interested parties. The registered proprietor has three responses, but failure to respond at all will
mean that the adverse possessor is registered with title.

Option one is that the registered proprietor may consent to the application, in which case the
adverse possessor will be registered as proprietor. Registered proprietors should avail themselves
of the opportunity of lodging more than one address for service of notices with HM Land
Registry, including an email address if possible, as there is a risk that the adverse possessor may
destroy the notice if the address for service is the registered land itself.

The second choice available to the registered proprietor is to raise an objection to the adverse
possession application. In such cases, the application cannot proceed until the objection has been
resolved. If the parties are unable to come to an agreement, the matter will be referred to the
registration division of the Property Chamber of the First Tier Tribunal for a decision. The
objection is likely to be based on the factual basis of the adverse possession claim being false.
However, even if there is uncertainty about the factual basis of the claim, the registered
proprietor is likely to submit a counter-notice (see option three below) as the counter-notice
procedure enables them to reject the application regardless of the factual basis. Therefore, this
second option of objecting is probably only used if the registered proprietor can clearly disprove
the factual claim for possession or is unable to invoke the 'two-year rule' (option three) discussed
below. This may occur if the adverse possessor can benefit from one of the exceptions to the
two-year rule.

The third option available to a registered proprietor when faced with an application for adverse
possession is to serve a counter-notice, which requires the registrar to deal with the application
under Schedule 6, paragraph 5 of the Land Registration Act 2002. This option is triggered by
ticking a relevant box on the form sent by the Land Registry and can be pursued with or without
an objection. The Hopkins v Beacon (2011) case highlights that adverse possession requires both
factual possession and intention to possess, which must be inconsistent with the owner's rights.
Therefore, if the registered proprietor serves a counter-notice, the adverse possessor cannot be
entered as the new registered proprietor unless one of three exceptional grounds is made out. If
none of these grounds is made out, the registered proprietor has an additional two years to
recover possession of the land, which is an automatic right. During this time, the adverse
possessor cannot be entered as the new registered proprietor. If the registered proprietor does not
recover possession within these two years, the adverse possessor may reapply and be entered as
proprietor of the title. Paragraph 9 of Schedule 6 of the Land Registration Act 2002 provides
rules for determining when an interest in land is overriding and enforceable against the registered
proprietor, including that the interest must be in actual occupation of the land and must be of a
type that would have been obvious on a reasonably careful inspection of the land.

This new scheme will significantly impact the frequency and success of adverse possession
claims. Under the scheme, a registered proprietor will receive notice of any application made by
an adverse possessor to become the new proprietor. Unless one of the three exceptional grounds
is made out, the registered proprietor will have two years from that date to recover possession
through court action, which will be successful solely by virtue of the owner being registered.
This process applies regardless of how long the adverse possessor has been in possession, with
no period of limitation. If the adverse possessor does not apply for registration or is evicted
(assuming the exceptions do not apply), the registered proprietor is safe. As a result, landowners
with significant and varied landholdings, such as local authorities, are seeking first registration of
title to protect themselves against adverse possession claims. The recovery of possession during
the two-year period of grace requires minimal effort, and only the most negligent or disinterested
proprietors are likely to fail to do so.

The exceptions:

It is evident that under the LRA 2002, a registered proprietor is well protected, and most
conflicts are likely to arise over the exceptions outlined in Schedule 6 of the Act. The exceptions
are expected to be the primary source of contention because a registered proprietor can displace
an adverse possessor within two years of their registration application, regardless of whether the
facts of adverse possession exist. Therefore, the adverse possessor will rely on the exceptions
wherever possible. The adverse possessor can only have a realistic chance of being registered as
proprietor if they can establish adverse possession based on the substantive law and rely on one
of these exceptions. However, the adverse possessor will be successful if the registered
proprietor does not respond to the notice, consents to the application, or fails to recover
possession within two years.

Schedule 6, paragraph 5 of the LRA 2002 enumerates the exceptional cases which allow an
adverse possessor to be registered as proprietor. These cases are: firstly, if it would be unjust for
the current proprietor to dispossess the adverse possessor due to an estoppel and the
circumstances suggest that the adverse possessor should be registered; secondly, if the adverse
possessor is entitled to be registered as proprietor for some other reason; or thirdly, in the case of
a boundary dispute regarding adjoining land, if the applicant reasonably believed the disputed
land to be theirs for at least ten years of the adverse possession, provided that the disputed land
had been registered for over a year prior to the application.

Exception 1: estoppel, unconscionability and ‘ought to be registered’:

The first requirement of Schedule 6 refers to the principles of proprietary estoppel and requires
the applicant to demonstrate not only adverse possession but also that they have relied to their
detriment on some assurance by the registered proprietor. This applies when it would be
unconscionable for the assurance to be withdrawn. The HM Land Registry provides two
examples of when this may apply: when a squatter mistakenly believes they own the land and
builds on it, and the proprietor knowingly acquiesces in that mistake, and when neighbors enter
into a sale agreement, but no steps are taken to register the title. The application of estoppel may
be based on either express or implied assurance, and may support a failed contract, as long as
unconscionability is present. It remains to be seen how widely this ground will be applied since
estoppel is flexible, and courts do not wish to restrict its application. It is unclear why an adverse
possessor would choose to rely on estoppel instead of claiming adverse possession since estoppel
alone does not guarantee title, whereas adverse possession/estoppel claims under Schedule 6
could do so, as long as the estoppel is incidental to the claim. Considering the possibility of
overlap between adverse possession and estoppel claims, it is important to carefully consider
advice for an adverse possessor who may also have grounds for an estoppel claim. It should be
noted that even if an adverse possessor can support their possession claim with an estoppel,
Schedule 6, paragraph 5(2) does not guarantee their registration as proprietor. The applicant must
also establish that they "ought to be registered," which suggests that the court may have the
discretion to refuse registration, despite ten years of adverse possession and an established
estoppel. It is unclear on what basis such a refusal could be given, especially since the paper
owner must have acted unconscionably for an estoppel to exist in the first place. If registration is
refused, it is also unclear whether the adverse possessor can pursue an independent claim in
estoppel for the same or a different remedy. The precise scope of this exception will need to be
clarified through judicial interpretation.
Exception 2: the squatter is for some other reason entitled to be registered as the proprietor:

The provision seems to be a broad condition, which could be exploited by adverse possessors
who are concerned that the registered proprietor may take advantage of the two-year period of
grace. HM Land Registry provides examples where a squatter is entitled to the land under the
will or intestacy of the deceased proprietor, or where a squatter contracted to buy the land but the
legal estate was never transferred to them. In both cases, the applicant need not rely on adverse
possession to establish title. This raises the question of why a claimant would need adverse
possession if they were entitled to be registered for some other reason. Deputy Adjudicator
McAllister examined this provision in Crosdil v Hodder (2011) and concluded that the exception
should be narrowly interpreted and not used to support adverse possessors on a broad view of
entitlement. Without adverse possession, a person who is entitled would have to apply for
rectification of the register against the proprietor under Schedule 4 of the 2002 Act, which may
be refused. However, where adverse possession supports an entitlement, the claimant can avoid
the limits on the power to rectify the register by using the route of adverse possession. There is
evidence to support this as the 'other reason' exception can be used where an adverse possessor
has established a complete claim before 13 October 2003 and appears outside the scheme of the
LRA 2002 but has failed to apply properly for their entitlement to be registered, usually by using
the wrong form. However, the scope of this exception is not immediately clear.

The boundary exception:

The third exception acknowledges the fact that boundary lines between neighboring properties
can be uncertain or may have changed over time without any formal transfer of land. This
exception allows for adverse possession to be used as a practical solution to boundary disputes.
The case of Zarb v Parry (2011) involved adverse possession, with the court ruling in favor of
the defendant as the claimant's use of the land was not sufficient to amount to adverse
possession. The Land Registry Practice Guide No. 4, 2020 provides guidance on the registration
of land and property in England and Wales, and states that this exception may be useful in
situations where physical features suggest one boundary location, but the title plan suggests
another. This exception is likely to be the most commonly used of the three exceptions, and is
the only one where a claimant can acquire title simply by adversely possessing the land without
relying on additional property law doctrines.

One of the four conditions for the "boundary exception" to adverse possession is whether the
applicant believed the land to be theirs for at least ten years of the period of adverse possession,
and that belief must be reasonable. This is to prevent deliberate theft of land. Two cases, Zarb v
Parry and IAM Group v Chowdrey, illustrate this condition. In Zarb v Parry, the claimant was
unsuccessful in acquiring title to a strip of land by adverse possession because the court ruled
that his use of the land did not amount to adverse possession. However, in the Court of Appeal, it
was held that the applicant's belief in their ownership was reasonable, and therefore they
established title under the boundary exception. In IAM Group v Chowdrey, the court held that it
was the claimant's belief that had to be reasonable, not that of his solicitors, and being told that
the land was not his did not make his belief unreasonable. The other three conditions for the
boundary exception are straightforward and only require proof that the land of the applicant is
adjacent to that to which the claim relates, the exact boundary has not been determined, and the
land to which the application relates has been registered for more than one year.

As mentioned in the case of Zarb, there is uncertainty surrounding the scope of the 'reasonable
belief' condition for adverse possession. The tribunal judge in Crosdil v Hodder suggested that it
might require a reasonable belief for any ten-year period before the application is made, while
Arden LJ in IAM Group v Chowdrey suggested that the belief must persist for ten years up to the
moment of the application. The boundary exception is likely to be the most relied upon in
practice, but the uncertainty generated by these unresolved issues is of concern. The case of Zarb
v Parry highlights the importance of the boundary exception in adverse possession, and the
requirement for a claimant to reasonably believe that the land belongs to them. The claim may be
defeated if the adverse possessor becomes aware before applying for registration of the
registered owner's objection to their assertion of title, making their belief unreasonable. In such
circumstances, the adverse possessor may be best advised to make an application as soon as
possible. The Law Commission's 2018 Report generally favors the Zarb approach and proposes
that a claimant must apply within 12 months of when their reasonable belief that the land
belonged to them came to an end. It is unclear whether this proposal will become law. The case
of Crew v London & Continental Holdings establishes that employers have a duty of care to
provide a safe system of work to employees, and failure to do so can result in liability for
injuries.

The three exceptions to adverse possession laws are designed to ensure that the person who has
been in adverse possession for ten years and "deserves" to be the owner is registered as such.
These exceptions are meant to be rare and normally the registered owner will either object or use
the two-year grace period. However, there is a possibility that sympathetic interpretations of the
exceptions may allow adverse possession of registered land in more circumstances than intended.
While the LRA 2002 may signal the end of feudal elements in English land law, it remains to be
seen whether it will encourage landowners to make the most of their land. Prior to the LRA
2002, landowners had to be attentive to their land or risk losing it to adverse possession. Two
court cases, Lambeth LBC v Ellis and Purbrick v Hackney LB, highlight the importance of
landlords fulfilling their obligations to tenants and the potential liability for personal injury
caused by disrepair in rented properties. With the LRA 2002, a landowner with registered title
can wait for the registrar to inform them of another's claim and then evict within two years,
without being attentive to their land.

Effect of registration of the adverse possessor under the Land Registration Act 2002:

If an adverse possessor successfully registers as proprietor, they will take the land subject to any
interests affecting the estate, except for any registered charge. However, if the registration is the
result of one of the three exceptions established by Schedule 6, paragraph 9 of the LRA 2002, the
adverse possessor will take the land subject to any registered charge. This is because the
registered chargee will have been served with notice and could have requested that the
application be dealt with under the two-year rule, but if they fail to take action, they cannot
object to the loss of their charge. If the adverse possessor is registered due to one of the
exceptions, the mortgagee cannot challenge the registration and the adverse possessor will take
the title subject to all incumbrances, including the mortgage.