Navigating the Judicial Route in Adverse Possession: A Comprehensive Guide

Subscriber-only episode

We continue our exploration of land law adverse possession, focusing on the judicial route in registered land cases and the critical two-year window proprietors have to enforce judgments before losing their rights.

• Proprietors can bring matters to head by evicting claimants or beginning judicial proceedings
• After 10 years of adverse possession, proprietors effectively get two years to recover possession
• Time limits for mortgagees to enforce security remain governed by the 1980 Limitation Act
• Applications for registration cannot be made if the proprietor has mental disability or physical impairment preventing communication
• Land held in trust is not considered in adverse possession unless all beneficiaries have interest in possession
• When a claimant is registered, they take over the registered estate while their common law title is extinguished
• New proprietors generally acquire the estate free of registered charges unless specific conditions apply

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

Chapters

• 0:00 Introduction to Registered Land
• 0:57 The Judicial Route Explained
• 2:48 10-Year Adverse Possession Overview
• 3:23 Special Considerations and Limitations
• 6:06 Effects of Registration on Claimants

Transcript

Speaker 1: 0:10

Welcome back to this final segment of Land Law Adverse Possession. In the last segment we concluded at a point where we were considering a registered land. Well, in this segment we will carry on and see what the rules are and of course, we will finish on registered land, not U-N but O-N on registered land. So if we continue, we left off by saying that we had two routes by which we could consider this either the application route or the judicial route. Now we did consider the application route earlier. Let's look at the judicial route Now. The proprietor can himself bring matters to a head at any time, either by evicting the claimant without a court order, in which case the claimant will have six months in which to make a first application, or alternatively, he can bring judicial proceedings to recover possessions. Now, if proceedings are brought before the 10-year period has expired, the proprietor will be entitled to an order for possession in the normal way. If proceedings are brought after the end of the 10-year period and before a first application has been made, the proprietor will be entitled to an order for possession unless the claimant can satisfy the third condition mentioned earlier, that is, as to a boundary dispute. But under section 98, subsection 2, the proprietor has only two years in which to enforce the judgment. After that, the judgment becomes unenforceable and the claimant will be entitled in due course to be registered as proprietor. Now, if proceedings for possession are brought by the proprietor within two years after the rejection of a first application, he will be entitled to an order for possession. However, again, the judgment will cease to be enforceable after two years and the claimant entitled to registration under paragraph 6. Now, if proceedings are brought more than two years after the rejection of a first application, the claimant will have a defense under Section 98, Subsection 3, and will be entitled to registration. What, in broad terms, it means, or what it amounts to, is that a claimant to a registered title by adverse possession will have, in any case, to show 10 years adverse possession. If, at any time after that, either the claimant applies to be registered or the proprietor sues for possession, the proprietor is, in effect, given two years in which to recover possession and preserve his title.

Speaker 1: 3:23

Now there are some other points that I think are relevant that you should have an idea of in relation to adverse possession. One, of course, is that time limits on the right of a mortgagee to enforce his security will continue to be governed by the 1980 Limitation Act. The right of a mortgageor to redeem against a mortgagee in possession will be governed by the new rules and so, by paragraph 8 of Schedule 6, an application first or second for registration cannot be made while the proprietor is unable to make relevant decisions because of mental disability or is unable to communicate such decisions because of a mental disability or physical impairment. Now, this is a new approach, as I said, as opposed to unregistered land, because physical impairment is one of the things that will be considered when you look at making an application. Now, by paragraph 12, where the proprietor holds the land on trust, it will be deemed not to be in adverse possession unless all the beneficiaries have interest in possession. So, for example, if Black Acre is held in trust for A for life remainder to be, the 10-year period cannot start running until the death of A full stop. Remember, in unregistered land it can run against A, but the point was that the adverse possessor would possess against A until the remainder man came on board. But under the registered land rules, unfortunately, nothing starts until the remainder man is in place.

Speaker 1: 5:12

Now, on a claim to registration by adverse possession of, let's say, a land belonging to the Crown. Well, under the new Act, adverse possession is not as such an override in interest under any schedule, whether Schedule 1 or 3,. If title has been actually acquired before an application for first registration, the first proprietor will be subject to that adverse title if he has notice of it, even if, for some reason, the adverse possessor has, after acquiring the title, title gone out of actual possession. Otherwise, the title of the adverse possessor will depend for protection on actual occupation and if it has not matured then it will be subject to the new rules. Now, the effect of registration of the claimant.

Speaker 1: 6:06

We would look to paragraph 9 of Schedule 6, which makes it clear that on registration the claimant takes over the registered estate of the dispossessed proprietor. His common law title stemming from the adverse possession itself is extinguished. Possession itself is extinguished. It follows and is spelled out in paragraph 9, subsection 2 of schedule 6, that the new proprietor is subject to the same encumbrances with the same propriety as the dispossessed proprietor. However, by paragraph 9, 3 and 4, the claimant will in general acquire the registered estate free of any registered charge which bound the dispossessed proprietor, unless the registration is in reliance on any of the three conditions in paragraph 5. It is for this reason that notice of a first application and a chance to object has to be given to any registered charge, as well as the proprietor. Now we have already discussed what occurs in the context of disability and successive and reversionary interests, and that therefore concludes what you are required, in a nutshell, to glean from the law as it relates to adverse possession.