This blog post has been contributed by Rod Edmunds, Module Convenor for Property law.
Dowse v City of Bradford Metropolitan District Council [2020] UKUT 202 (LC) is an interesting addition to the case law on the operation of the current legislative procedures that apply to adverse possession claims to registered land. The Upper Tribunal opts for a narrow interpretation of the ‘boundary exception’ in Schedule 6, para 5(4) of the Land Registration Act 2002 (LRA 2002), restricting its availability in cases where there is uncertainty about the position of the general boundary between two pieces of land. More broadly the decision neatly illustrates how the LRA 2002 is designed to curtail the prospect that adverse possessors (squatters) will be able to gain the formal recognition that registration as owner bestows.
Setting the legal context – the shifting impact of adverse possession
Before turning to Dowse let’s start with a quick refresher on the fundamental changes to the English law on adverse possession that have occurred over the last 18 or so years. Proving adverse possession for any period of time is never going to be enough to get title to registered land under LRA 2002 Act (s 96). (Claims based on 12 years of adverse possession of unregistered are, of course, unaffected.) Indeed, a squatter who establishes at least ten years of adverse possession of registered land will at best become eligible to apply to HM Land Registry to become the registered owner of the land in place of the person whose name currently appears on the register of title. This is not merely a procedural change. It marks an end to automatic extinction of the registered owner’s title through adverse possession achievable under LRA 1925, drastically shifting the balance away from squatters in favour of registered owners. This fundamental change is further echoed in the detailed procedures introduced by Schedule 6 of the 2002 Act. These require the Land Registry to alert registered proprietors of any applications that claim title to their land. That step will often be enough to defeat a squatter’s application. Essentially, once notified by the Land Registry, all a registered owner has to do is to respond (either by objecting to the application or serving a counter-notice) and then follow through by evicting the squatter within two years. They will – provided they receive the Land Registry’s notification – have a warning that allows them to protect their status as registered proprietor. This outcome is, of course, in keeping with the 2002 Act’s general policy of bolstering the security and reliability of the register (as a mirror). But it’s not all about protecting the registered owner. The channeling procedures introduced by the LRA 2002 give adverse possessors their only opportunity for gaining formal recognition by becoming registered owners. Yet the LRA 2002 confines the chances of this happening to circumstances where, either the registered owner consents to the application, does not contest it (including by failing to do so within the statutory time limits, Baxter v Mannion [2011] EWCA Civ 120) or, finally, to instances where the dispute falls into one of the three exceptional categories in para 5 of Schedule 6. Where any of these narrow exceptions apply the registered owner’s objection is overridden and their title extinguished.
Gaining registered title through adverse possession – the para 5 exceptions
The boundary exception is the most important of the three exceptions in para 5. The other two – (i) where it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant; and (ii) where the applicant is for some other reason entitled to be registered as the proprietor- were not relevant in Dowse. Interestingly, in its most recent review of the LRA 2002, the Law Commission favoured their retention, but described them as ‘practically useful’ yet ‘conceptually unsatisfactory’ (see ‘Updating the Land Registration Act 2002’ (Law Com 308 2018), [17.33] – [17.44])). Certainly, the claims in exceptions (i) and (ii) have a legal basis that is totally distinct and independent from the fact of the applicant’s adverse possession. Schedule 6 serves as a convenient and simple legal mechanism for the resolution (by the First-tier Tribunal). By contrast, the third exception in para 5(4), the boundary exception, covers applications that relate to land at the boundary of the land that applicant has possessed for at least 10 years but which is included as part of the neighboring registered owners’ title. It therefore embodies conventional ideas of adverse possession and represents a genuine exception to the new regime in the LRA 2002. Dowse tested its ambit and availability.
The details of the case and its implications will be explored in Part 2 of this blog available soon.