Law Sessions With Jennifer Housen’s Podcast

Adverse Possession: Navigating Unregistered vs Registered Land

Subscriber Episode • • Jennifer Housen • Season 10 • Episode 3

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Adverse possession operates differently in unregistered versus registered land, with specific conditions creating complexities around disability, successive interests, and limitation periods. This episode explores the legal frameworks governing how adverse possessors can acquire title under both systems, examining the significant changes introduced by the Land Registration Act 2002.

• Special time extensions apply when paper owners are under disability (defined as infancy or unsound mind) at the commencement of adverse possession
• For unregistered land, disabled owners have 12 years from adverse possession start or 6 years from disability end, whichever is longer, with a 30-year maximum
• Land held on trust has specific rules where trustees' legal estate isn't barred until all beneficial interests are barred
• Registered land requires at least 10 years of adverse possession and meeting specific conditions including occupancy requirements
• The Land Registration Act 2002 fundamentally changed the system—adverse possession no longer automatically affects the proprietor's title
• Adverse possessors must apply to the Land Registry with proprietors given opportunity to object
• If rejected initially, adverse possessors remaining for a further two years gain absolute right to register on second application


💡⚖️ Let’s learn the law together—one session at a time!

Speaker 1:

Welcome back to this segment of Land Law Adverse Possession as we continue with the limitations in relation to unregistered land and the adverse possessor being able to acquire title. Now, in the last segment, we were considering the situations where, when you look at an adverse possessor, what are the situations which will, of course, restrict either the adverse possessor getting title or delaying it as such? And the last one I mentioned, of course, was that, as against the leaseholder, he will only get to the extent of the right the leaseholder has. Now there will be no adverse possession where there is a disability or a successive interest. Now let's deal with disability first. Now a person is under disability under the 1980 Act if he's an infant or if he's of unsound mind. Now, under section 28 of the 1980 Act, additional periods are allowed in the case of a disability and they only apply where the paper owner is under a disability when the adverse possession commences. The disabled person has 12 years from the beginning of the adverse possession or 6 years from the ending of the disability, whichever is longer, with a maximum period of 30 years. Now, if the disabled person dies while still under the disability, his estate has 12 years from the onset of the adverse possession or six years from the death, whichever is, the longer Again it is, with an overall maximum of 30 years from the adverse possession.

Speaker 1:

Now let me try and help you understand what this means. Let's assume and the examiner loves to play on this one in an adverse possession question in unregistered land. Let's assume that A is under a disability. Now, unlike registered land, as we've seen in registered, which we will see rather in registered land, disability includes. In registered land, disability includes physical disability. It is not the same in unregistered land which we are looking at at present. In unregistered land, disability is if you're an infant or if you are of unsound mind at the time of the adverse possession. So examiners love to give you a question that says A is the paper owner, b goes into possession two weeks later A became of unsound mind. Well, how do you deal with that? As I say, it will be 12 years from the adverse possession plus an additional six until the end of the disability, with an outside maximum of 30 years. It works like this.

Speaker 1:

Let's use 1990 for our purposes as a starting point. If the adverse possessor goes into possession and the landlord is under a disability is under a disability, then it is 12 years from the start of the adverse possession. Okay, so let's say the adverse possessor sorry, the paper owner gets better by 1992? Well, it is 12 years or six years after the end of the disability, whichever is longer. So if it is that in 1992, the paper owner gets better, it remains 12 years, because there would be 10 years remaining, which is longer than six years after the end of the disability. Now the point is then, in respect of the 30-year extension, is that let's assume that the person, the paper owner, is under a disability at the time when the adverse possessor goes into possession. Well, effectively you have. Well, the adverse possessor has 30 years maximum. So let's say that the paper owner never comes out of the disability. The maximum is 30 years. Let's say the paper owner comes out, then gets better he's not of unsound mind 20 years after the possession starts. Well, it will be six years after that. Let's say he gets out of the disability 28 years after it started. Well, he will only have two years to deal with it because the maximum is 30. That is how you deal with that.

Speaker 1:

Now, what about land held on trust? So we're looking at a successive interest. Well, special rules apply where the land is held on trust. So suppose that X and Y hold the legal freehold on trust for A for life, with the remainder to be in fee. Simple A stranger takes adverse possession against a. A's equitable interest being in position, possession is barred after 12 years. But b his interest is in remainder or reversion. He's the remainder man. He has either 12 years from the start of the adverse possession or six years from when his interest falls into possession. So, for example, on the death of A, whichever gives him a longer period of time. Again, the calculation is similar as I've just explained before. Now the legal estate of the trustees will not be barred until the last equitable beneficial interest has been barred. Now, by Section 21, subsection 3 of the 1980 Act, a claim by a beneficiary against the trustees for breach of trust or to recover trust property is barred six years after the beneficiary's interest falls into possession. However, by Section 21, subsection 1, there is no time limit where the claim by the beneficiary is in respect of fraud, either by the trustee or to which the trustee was a party, or to recover trust property still in the possession of the trustee or converted by the trustee to his own use.

Speaker 1:

Now those are the rules relating to acquiring an adverse possessor's title in unregistered land. What I want us now to of course consider is the position in registered land. Again, I'll give you the nutshell overview In a nutshell. In registered land, the requirements are that first, there is at least 10 years required under the LRA 2002. The occupancy conditions must also be met there is no disability of the registered proprietor and there are no future interests in succession or reversion.

Speaker 1:

I actually want to make a point on that last one, before I go on, is that when you look at the future interests in succession or reversion or when you look at the disability, I just want to recap and say that under unregistered land, the point at which you consider these matters is the start of the adverse possession. When you look at registered land, these points are important at the time when the adverse possessor seeks to get his adverse possessor's title. So, for example, as an example, as I say, I'm looking at this to draw the parallel is that in adverse possession, for example in registered land, under the new rules, under the 2002 Act, you will see that if there is example, a lessee, in place, you can never apply for an adverse possessor's title. Now, in unregistered land, it doesn't matter there was that there was a lessee, you would just adversely possess against him under the registration land rules, under the 2002 Act. Of course that does not apply Now. To continue, then, after you meet these conditions of course those four there are further conditions to be met. They say in addition to that meeting the occupancy conditions, etc. No successive or reversionary interest. You must still show that there is an equity bias topple having arisen in your favor, or the applicant is entitled to be registered as proprietor for some other reason, or the application is to do with a boundary dispute, or the squatters application was rejected but he has remained in possession for a further two years.

Speaker 1:

Now these further conditions are to make it more difficult to acquire registered land by adverse possession, precisely the sort of thing which was argued in Pi, because the main basis of Pi was that this was registered land and you could see the argument really, which was listen, the law is allowing me to lose my land in a situation where, if they went to the register, they could see that I'm the owner, why is it that somebody should adversely, or be able to adversely possess against me? Well, the Land Registration Act 2002 makes significant changes and it introduces an entirely new scheme. Now I will continue, as I say, to call the adverse possessor the claimant. What we see here is the Act does not change the meaning of adverse possession. So everything I said in the first segment is very relevant as it relates to registered land. You still need the discontinuance of possession, you still need to show factual possession, you still need to show an intention to possess, you still must not have acknowledged the paper owner's title in writing. So you still need those because that is the essence of what makes it adverse possession. So generally, adverse possession has the same meaning as under the limitation at 1980, the claimant can add any periods of adverse possession by his predecessor in title to make up the periods of the 10-year or, as on the unregistered land, the 12 years to change the rules under which adverse possession can be used as a basis of acquiring title to registered land in place of the existing proprietor. Now a point to make here is that under unregistered land you can use successive periods by an adverse possessor, so adverse possessor one and adverse possessor two or a successor in title. So I'm saying that if adverse possessor two had adversely possessed against adverse possessor one on the unregistered land, that would be fine. However, when you look at registered land, that is not the same, because you cannot use the period where one adverse possessor adversely possessed against another adverse possessor, only the period where you're looking at a successor entitled situation.

Speaker 1:

Now, adverse possession is dealt with in Part 9, sections 96 to 98 and Schedule 6 of the Act, and the basic principle under the Act is this Adverse possession, however long it continues, will not in itself affect the title of the proprietor. Now you see the difference here from unregistered land. So the existing rule in section 75 of the LRA 1925 no longer applies. The proprietor does not automatically become trustee for the claimant after any period of adverse possession, as was the case prior to the current LRA 2002 coming into being. The running of the time does not in itself bar the right of the proprietor to the land.

Speaker 1:

Now either the register of freehold or a register of leasehold can be acquired under the Act. Also, under the Act, there are two interlocking routes by which title to the estate can be resolved. Now I will call them the application route and the judicial route and deal with each in turn. Now, if we start off with the application route, this is an application to the registrar by the claimant under Schedule 6. Now the claimant can apply to be registered as proprietor once he has been in adverse possession for at least 10 years. I will call this the first application. If, after 10 years adverse possession, he is evicted by the proprietor without a court order, he has six months from the eviction to make an application.

Speaker 1:

The registrar must give notice of the application to the proprietor of the estate and any superior estate. If a leasehold estate is being claimed, the proprietor of any charge and anyone else provided for in the rules of the Act will also, of course, get notice. One of two things then can happen. First, if no person given notice objects, the claimant is entitled to be registered as proprietor. Secondly, if any person notified objects, the claimant is only entitled to be registered as the new proprietor At that stage.

Speaker 1:

If any one of three conditions are then satisfied, and these are, of course, an equitable estoppel as arisen in favor of the claimant, binding the conscience of the proprietor and the claimant ought, in the circumstances, be registered, that's on the paragraph 5, sub 2,.

Speaker 1:

Or the claimant has an independent right to ownership, for example if he's entitled to the land under the will or under interstice in relation to the proprietor.

Speaker 1:

And, of course, the point about classes the above classes, then one and two, as we'll call them is that the claimant would be able to establish his title in the ordinary courts, relying on estoppel or the independent title, but it is envisaged that the Schedule 6 procedure will offer a simpler and cheaper alternative.

Speaker 1:

Now, where the disputed land is on the boundary between the land of the proprietor and the claimant's own land, and the claimant has reasonably believed for the last 10 years, prior to the application, that the land belonged to him, then that will, of course, allow him to get the adverse possessor's title.

Speaker 1:

Now if, following these rules, the claim is rejected on the first application, the claimant can make a further application let's call that the second application if he remains in adverse possession for a further period from the first application to its rejection, and he does that for a further two years. Now on the second application, the claimant has an absolute right to be registered as proprietor. What the above means is that the proprietor will not lose his title no matter how long the adverse possession continues until a first application is made, and unless one of the three conditions mentioned above applies, he has two years from a first application in which to assert its title and recover its property. Now, that is the situation in respect of registered land. We will now take a short break and when I return, we will conclude with the second route to resolving the estate in registered land.