Registered land owner benefits from statutory protection

In England and Wales, land may be acquired by adverse possession, displacing the person who is the legal owner.

27 April 2010

In England and Wales, land may be acquired by adverse possession, displacing the person who is the legal owner. Possession was enough for unregistered and registered land alike until the Land Registration Act 2002, which sets out the new procedure for registered land:  application for registration by the adverse possessor is required, in addition to the title being established by possession.  The recent case of Baxter v Mannion [2010] EWHG 573(Ch) confirms that the registration procedure under the 2002 Act is not conclusive in itself where the required criteria for establishing possession have not also been met. 

The legal background

The adverse possessor must have been in adverse possession of the land in question for the requisite period. Prior to the 2002 Act, this period was 12 years for all land.  The period continues to be 12 years in respect of unregistered land, and registered land where the period of possession relied upon ends before 13 October 2003.  Under the 2002 Act, which applies only to registered land, the period of adverse possession is 10 years.

Adverse possession is assessed by reference to two main criteria:  factual possession and an intention to possess without the consent of the owner. 

Factual possession

The meaning of factual possession was set out in the case of Powell v McFarlane [1979] (38) P&CR452.  In that case, Slade J said: "Factual possession signifies an appropriate degree of physical control.  I think what must be shown in constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so."

The case also discussed whether or not it would be necessary for the adverse possession to be apparent to anyone inspecting the land, and the decision was that such a test is not necessary.  There are a number of measures, for example, fencing off the land, which might be indicative of factual possession, but that is neither essential nor conclusive.   

Intention to possess without the owner's consent

The second part of the test requires "the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as reasonably practicable and so far as the process of the law will allow"  (Powell v McFarlane).  The test has been used and commended in subsequent cases including in the House of Lords where it was confirmed the adverse possessors had the intention to exercise their custody and control of property on their own behalf and for their own benefit. The intention to possess will frequently, but not always, be deduced from the acts making up factual possession, as the adverse possessor has to produce evidence of intention to claim the land and dispossess the owner.  The possession, in all cases, must not be by virtue of a licence from or with the permission of the owner.

The procedure for registration under the 2002 Act

The adverse possessor must make an application for adverse possession to the Land Registry.  The Land Registry may inspect the land in question.  Thereafter it will give notice to any person whom it believes may have an interest in the land, having checked that the land is not an adopted highway.  The surface of such highways always vests in the highway authority as affirmed in the recent case of R (on the application of Smith) v Land Registry (Peterborough Office) & Another [2010] EWCA Civ 200, and any application following adverse possession will be rejected. 

The person given the notice may consent, object or give a counter-notice.  The application cannot be determined until the objection is disposed of.  Both parties are given an opportunity to negotiate and if they do not, the matter will be referred to an adjudicator who will either set a date for hearing and determination of the matter, or will direct one of the parties to start proceedings in court.  If the existing registered owner objects, the application will, in the majority of cases, be rejected.  However, where no objection is made in the statutory period, the application for registration will be completed automatically. 

Failure to meet the statutory criteria

In the case of Baxter v Mannion, the registered owner, Mr Mannion, failed to object in time to an application for adverse possession of a field, and the adverse possessor, Mr Baxter was registered as owner in his place.  After the date of expiry for any objection or counternotice, Mr Mannion objected claiming that Mr Baxter had not in fact been in adverse possession of the land for the requisite ten-year period and Mr Mannion applied to the Land Registry to restore himself as owner.

The adjudicator determined that as a matter of fact Mr Baxter had not been in adverse possession for ten years and ruled that a mistake had occurred to the register.  Using power under the 2002 Act to rectify the register, the adjudicator restored Mr Mannion as the registered proprietor.

Mr Baxter appealed, mainly basing his argument on the adjudicator's jurisdiction to alter the register as there had been no error or mistake in the registration procedure.  Mr Baxter's contention was that Mr Mannion had simply failed to serve a counter-notice timeously and his failure to do so resulted in the register being amended to register Mr Baxter in accordance with the provisions of the 2002 Act.

The Appeal Court held that the registration was mistaken, and the registrar did have power to correct mistakes in addition to those of a procedural nature. The Court held that if any statutory condition which was a precondition for registration could be shown not to have been satisfied, following the procedural steps set out in the 2002 Act alone was not sufficient to establish title to the land.  It was noted that as Mr Mannion was applying for rectification then the burden lay on him to prove Mr Baxter had not been in adverse possession for the requisite period.  Mr Mannion was able to produce such evidence.  The Court held that the registration itself was a mistake as it was shown that Mr Baxter had not been in adverse possession of the field for ten years.

Better protection for owners

The 2002 Act introduced a statutory procedure of notification of the registered owners, to reduce the possibilities of adverse possessors acquiring title to registered land.  The decision in Baxter v Mannion supports the parliamentary intention to give registered owners of land more security of title.  Whilst an applicant following the adverse possession procedure under the 2002 Act will be automatically registered as owner if no counter-notice is served, it will still be open to the former owner to argue the registration was a mistake if on the facts the applicant did not satisfy the statutory conditions for proving adverse possession of the land.  The case is a welcome clarification of the law on such matters.

The full decision in the case of Baxter v Mannion is on the BAILII website.

Adverse possession in Scotland

Scots property law has a similar principle, known as positive prescription, by which a person who possesses land for a sufficiently long period of time can acquire ownership of that land.  There has always been a requirement to register a disposition, and then acquire good title by unchallenged possession for ten years.  However, the Scottish system is not without its flaws, and this and many other aspects of the system of land registration in Scotland are addressed in a recently published Report by the Scottish Law Commission, which is to be the subject of future articles in this e-bulletin.