Expert Insight: Know the Rules!

Earlier this month we looked at the case of Watt v Dignan where the possibility of property owners losing their right to use an easement was considered. But this got me thinking of a much greater loss that a property owner can suffer – the loss of ownership of the land itself through adverse possession.

Adverse possession was once described to me as being ‘legalised theft’. It is based on the rule that if you grab someone’s land and hang onto it for long enough it will become yours. Indeed, a few years ago there were fears that the rules as to adverse possession might be in breach of the Human Rights Act 1988. The relevant provision is Article 1 of the First Protocol: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. It was largely because of this that the rules for obtaining adverse possession of registered land were changed by the Land Registration Act 2002 so that it is now very difficult indeed to obtain title to registered land – provided that the existing registered proprietor objects, that is. However, claims to adverse possession do keep coming before the courts and a couple of recent ones are worthy of comment.

Firstly, we have McClelland v Elvin [2017] EWHC 2795 (QB) which is noteworthy partly at least for Turner J’s impressive introduction to his judgement:

  1. In 60 or 61 AD, Boudicca, Queen of the Iceni, reached modern day Chelmsford through which she led her formidable army of warriors along what is now Moulsham Street as they made their destructive way from Colchester to London in their savage but ultimately doomed resistance to the might of the Roman Empire.
  1. Nearly two thousand years later, doubtless inspired by this distant association with the town’s Celtic past, the developers of properties located in a courtyard to the rear of 154 Moulsham Street, re-named them Boudicca Mews. It was thus that they unwittingly set the scene for the further, but distinctly more mundane, territorial conflict which forms the subject matter of this appeal.

THE BACKGROUND

  1. The catalyst of this latter day clash was the arrival of police officers in possession of a warrant to search number 9 Boudicca Mews …. As they had expected, they found that the premises were being used for the large scale production of cannabis plants. The horticulturalists were promptly removed… The police handed over the keys to the first defendant who had presented himself to them as the owner. The claimant, however, disputed the defendant’s title thereby giving rise to the question which lies at the heart of this appeal: “Who actually owns 9 Boudicca Mews?”

Strangely, both Defendant and Claimant claimed to be the rightful owners, the deeds having gone missing. The Claimant said that in any event he had ownership by virtue of adverse possession.  The claims were complex and contradictory. Turner J. commented: ‘These respective accounts are so fundamentally irreconcilable that it must follow that one or both of them were committing barefaced perjury at the hearing’.

But the point here, as the judge emphasised, is that it is not necessary for the current occupier to prove that he or she is the rightful owner when resisting a claim to adverse possession. ‘This is because they were indisputably in actual possession … and this gave rise to a right which was, in itself, sufficient to afford good title against any and all third parties lacking a better one.’ This is not always appreciated. Remember the old saying ‘Possession is nine points of the law’. There is indeed some truth in it!

On the facts, the Defendant’s evidence had been accepted by the trial judge and Turner J. dismissed the Claimant’s appeal.

Then we have Perinpanathan v The Official Receiver (as Trustee in Bankruptcy of Peter Popat) [2017] UKFTT 712 (PC).

The disputed property was part of the garden of a house in Wembley, known as 14 The Paddocks. In 1989 the then owner of Number 14 had sold the part in question to Mr Popat. However, he never took possession of the land and it remained part of the garden of No.14. The seller remained in possession and after 12 years was thus entitled to claim adverse possession of the land. The Claimant subsequently bought No. 14 and thought the land was part of the garden. It was only in 2015 that Mr Popat took possession and erected a fence, which the Claimant promptly removed. Mr Popat erected another fence and then proceedings were commenced resulting in an application to Land Registry by the Claimant to be registered as proprietor based on Adverse Possession.

The case emphasises the need to know and understand the law in this area. As stated above, the law changed under the 2002 Act. The Claimant was claiming 12 years adverse possession which had ended prior to the 2002 Act coming into force. The 2002 Act, however, contained transitional provisions which protected those squatters who had accrued rights under the old rules. The Judge, Elizabeth Cooke, emphasised that the claim should, therefore, have been brought under the old rules. But it had been brought under the new rules and had to be judged on that basis. Under the new rules, the claim to adverse possession will fail if there is an objection by the registered proprietor UNLESS one of three conditions is satisfied.

Fortunately, on the facts, there had not been a valid objection. Under the Rules, the objection had to be received by Land Registry by 12 noon on the 65th business day after service. It was actually received at 12.01 on that day! In any event, the Judge went on to consider the situation had there been a valid objection. One of the three conditions is that ‘The Applicant is for some other reason entitled to be registered’. The Judge held that the fact that the Applicant could prove an entitlement to the land under the old rules was ‘some other reason’ within this provision.

The law on adverse possession is complex; do ensure you understand the law before making applications to court or Land Registry. Others might not be so lucky as the Claimant in this case.

 

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