Before the raft of property legislation brought into force in 1926 all land was unregistered and title to the land had to be deduced from the deeds and documents and from inspection of the land.  The Land Registration Act 1925 was introduced in order to simplify conveyancing and show a mirror of the title to a purchaser in one single document called a Title Information Document.

Before this registration was voluntary but, with the introduction of the Land Registration Act 1925, registration became compulsory from area to area via a gradual process until 1990 when the whole country was compulsory upon a disposition of , or a dealing with, the land that would act as a trigger.  The Land Registration Act 1925 was replaced by the Land Registration Act 2002 which dramatically increased triggers for first registration in order to speed up the process of ultimate land registration across the country, resulting in most transactions in unregistered land now triggering compulsory first registration and, as a result, today it’s estimated that between 80-85% of land is now registered.  But what are the very real implications for the owners of the 15-20% of land still unregistered?

You may ask yourself “why should I voluntarily register my land and not just wait until registration is automatically triggered by some dealing with my estate?”  An important consideration is a term some of you may have heard of: adverse possession.

Adverse possession is the means by which a, commonly termed, squatter can acquire a legal estate in land and, in this regard, the old saying ‘possession is nine tenths of the law’ rings particularly true.  The rationale behind adverse possession is that a person who makes use of land over a long period of time is the better owner than the one who neglects it and supports the notion of relativity of title in that title to land is never absolute as it is only good until defeated by someone with a better title to it.

There are a number of common law rules that an adverse possessor must successfully establish stemming from the Latin term ‘nec clam, nec vi, nec precario’ – without secrecy, without force, without permission, and there is a whole raft of case law in this area that a good property lawyer will draw on in establishing a claim but, ultimately, if a squatter has been in exclusive possession of the land for a period of 12 years the squatter may acquire possessory title of the land and defeat the paper owner by virtue of s15 of the Limitation Act 1980.

It’s surprising our legal system allows one person to take land belonging to another you may say and this argument was litigated in the case of JA Pye Ltd v Graham 2003 where the state came under fire from the European Convention of Human Rights under the First Protocol which provides protection for the ‘right to peaceful enjoyment of possessions and the right not to be deprived of them without compensation’.  The action was a challenge to the legality of s15 of the Limitation Act 1980 and s75 of the Land Registration Act 1925 and, as a result, a new system was developed under the Land Registration Act 2002 whereby the limitation period which could categorically defeat a paper owner was abolished in regards registered land, but worryingly the old system still remains the same today for unregistered land.

The new scheme for registered land is contained in ss96-98 and Schedule 6 of the Land Registration Act 2002 and dictates that an adverse possessor can make an application for a possessory title after 10 years of adverse possession whereafter the registered proprietor will be notified of the application.  If the registered proprietor serves a counter notice refusing the claim and takes action to remove the squatter within 2 years then the squatter’s registration will fail (apart from under a few exceptions).  This also highlights the immense importance of keeping your address for service up-to-date with the Land Registry – the Land Registry cannot notify you in order for you to facilitate a counter claim if they do not hold your current address!

Admittedly, the law of adverse possession may be of more real relevance to large land or property owners of unregistered land who may not regularly inspect the same but consideration should be given to circumstances such as boundaries between neighbouring properties where it is often unclear who owns what and one owner may occupy a small strip of land in the genuine belief that it belongs to him, or in the instance when you may have given someone permission to occupy a portion of your land and the requisite period of possession has elapsed without any interference.

Invitingly, the Land Registry offer a reduced fee for voluntary first registration and if you would like the peace of mind of knowing that your property is protected please feel free to speak to a member of our experienced team about registration.

By Carmen King

Paralegal at Latimer Lee LLP