Leagal research - Term Paper Example

The Land registration Act of 2002. The Land registration Act of 2002 came into effect as of October 13, 2003. The major purpose behind introducing changes and reforms under its provisions was geared towards simplifying the land conveyancing process. However, there are several other significant developments that arise under the New Act, notably the facility of e-conveyancing, the legalizing of adverse possession, incorporating boundary principles into statutes and introducing compulsory registration of all land. This is likely to bring about some far reaching changes into the manner in which land is conveyed and the adjudication of disputes arising out of land. Not only is it likely to simplify the process of conveyancing, but is also likely to introduce more fairness in the assignment of rights over land, while the process of compulsory registration of land is likely to simplify the process of assigning and disposition of legal title and beneficial interests on the property. Adverse possession: This is one of the most important aspects of the New Act. Prior to the Land registration Act of 20021, the matter of rights in adverse possession of land were not as clearly defined. The Limitation Act of 19802 specified a limitation period of twelve years, and it was only after the passage of this definite period of time that those in adverse possession could apply for the title to the land to be transferred in their favor3. The process of adverse possession attributed greater rights to the person in possession of the land. The limitation therefore subordinated the rights of the paper owner who was the actual title holder in terms of the deed of possession, to recover the land and to make use of it according to his wishes - although on paper it belonged to him, so that the squatter’s possession becomes impregnable, “giving him a title superior to all others”.4 The law of adverse possession therefore functions by subordinating the rights of the paper owner to the rights of the owner in possession, however the long period of time was deemed to be necessary in order to establish the intentions of the squatter to retain his hold on the property. There are certain conditions that must be fulfilled by a person who seeks to claim adverse possession of the land and these conditions are also applicable within the framework of the New Act, although the limitation period has been reduced and a squatter may legally apply for the title to the land. Pre conditions to invoke such impregnable possession and inalienable rights through adverse possession included actual physical occupation of the property as spelt out in the case of Powell v MacFarlane:5 “Factual possession signifies an appropriate degree of physical control…….. ……broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land as an occupying owner might have been expected to deal with it and that no-one else has done so.”6 Another condition that may invoke such possession right includes an intention to possess the land7 without the consent of the actual owner8. One of the salient points noted by Browne Wilkinson in the case of Pye v Graham, allowing the judgment for the defendant was the issue of whether the defendant squatter had “dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.”9 According to the conditions that existed before the Land registration Act of 2002, adverse possession was not valid if the illegal occupant gave written notice of the true owners10 or if the actual owners physically occupied the land. After twelve years of occupation, the squatter on a land could apply for registration of title as proprietor of a new or registered estate11. Therefore, by way of these limitations, the granting of title to the squatter was provisional and the required time period had to elapse before a squatter could legally claim the title to the land. However, the important factor that existed was that the issue of ownership did not rise in this case of adverse possession before the Land registration Act, what the squatter gained was merely the right to continue to possess the land and enjoy complete rights to it as if he actually held the title of the property. But according to the provisions of the new Land registration Act12, which came into force on 13 Oct 2003, squatters may directly put in an application for ownership. The law relating to adverse possession has undergone several changes, whereby the issue at stake is not title to the land, so much as direct ownership of the land, either by the squatter or the paper owner. In a recent case, the Court suspended the possession order against a widowed mother who had enjoyed possession of land for thirteen years13. However the Land registration Act of 200214 clarifies that no matter how long the possession of the land, it will not bar the paper owner’s title to the registered land. Adverse possession in itself will not give the squatter the right to register the land. A squatter will be entitled to apply for registration of the land14 and for a transfer of formal title into his name, however there is a definite procedure that has been set out for this purpose and the rules to be followed have been clearly set out. 15 The application must be made on an ADVI form and be accompanied by a statutory declaration. The owners must be notified and will have the right to oppose the squatter’s claim for ownership and title to the property, there is no guarantee of success if the land is registered, even if fences have been erected by the squatter.16 If there is opposition by the owners of the paper title, the squatter’s application will be rejected unless he can prove the following17 (a) he is entitled to be registered as proprietor through some compelling reason (b) the equity of estoppel would render it unconscionable to the proprietor to displace the applicant (c) in certain cases when the squatter’s property adjoins the land in question.18 Those who have acquired title by adverse possession before the Land registration Act of 2002 will retain their titles and not lose it. In some cases, the old rules regarding adverse possession may still apply. For example in the case of Topplan estates Limited v Townley19, the Court held in favor of the defendant and stated that the law of adverse possession was justified when the paper owner made no effort to oversee the property; “A period of 12 years is a long period during which to neglect a property completely.”20 However, by allowing the squatter the right to apply for ownership to the land, the Land registration Act has shifted the issue of possession of land from that of purely physical possession to the necessity to demonstrate actual ownership of title. After three years, squatters will have the option to apply for ownership only if they continue to remain in physical possession of the land for at least two more years over and above the ten year period specified in the Act. Through the provisions of the Act, the focus and thrust of land law has shifted from provisional title to actual ownership, through the provision of registration for ownership. Therefore, in the light of the foregoing, it may be considered – what impact is the Land registration Act going to have on English land law in the matter of adverse possession? Firstly, the common law provisions that determine what kind of exclusive occupation will amount to “adverse possession” remains unchanged.21 Moreover, it may be noted that the period of limitation after which a squatter may apply for the title and undisputed rights to the land has been reduced to 10 years from the 12 years that it was previously. However does this mean that the rights of the owners have been compromised? On the contrary, it is likely to strengthen the position of land owners against squatters.22 All land that has been effectively registered by the actual owners will have a strong hold on the property which they can use to their benefit. The Land registration Act of 2002 requires mandatory registration of all titles to land, therefore squatters are obliged to come forward to place an application for registration of the property in their names. At the time that they do so, the real owner/s of the property will have the right to oppose such an application and to reassert their title over the land. The Land Registration Act of 2002 does not allow a squatter to register the land title in his name if there is opposition from the genuine owners of the property, it is only in the absence of such opposition that the land will be turned over into his name. Thus, the actual land owners will have be in a strong position to oppose the transfer of the title of the land. Moreover, a squatter cannot apply for the title to the land if his possession of it has not been continuous for a period of at least ten years, if his occupation has been interrupted anytime midway, then he will not be in a position to put in a valid claim for ownership of the land in question. It is only under certain conditions that the title to the property will be transferred to the squatter anyway. These are as follows: (a) The squatter is entitled to be registered as owner for some compelling reason, such as being the beneficiary owner or having paid for the land and not yet received title; (b) The squatter has lived on neighboring land and made use of the disputed land in the genuine belief it belonged to him (c) There is some kind of boundary dispute that exists in respect of the property as a result of which application for title should be entertained (d) It would be unconscionable for the owner to try and dispossess the squatter due to an equity of estoppel.23 Therefore, it may be clearly sent hat the ultimate rights to the property will rest with the rightful owner of the land who has been duly registered as the paper title holder. A very important section of the Land Registration Act of 2002 is Section 77, according to which those who apply to register notices or restrictions as far as title is concerned, will also be liable for any losses that are caused to the registered proprietor of land, as a result of such a dispute. This was so in the recent case of Albany Construction Co v Cunningham24 where there was a dispute about the boundary wall between two properties and the Court held that a notice should not have been registered due to a lack of proprietary interest in the land.25 The doubts that have been raised about the New Act legalizing the position of illegal occupants of land has also been dispelled through another recent Court decision, which serves to highlight the fact that the Land registration Act of 202 is likely to strengthen the position of land owners rather than undermining it. In the case of Beaulane Properties Ltd v Palmer26 that was contested in the High Court, the dispute concerned Mr. Palmer’s use of Beaulane’s adjoining land to graze his cattle continuously for a period of 12 years. While this possession was permitted by the real owners Beaulane, however when Palmer proceeded to go ahead and try and register his title for ownership of the land, the real owners took umbrage and the Court upheld their position inspite of the fact that Palmer had a right to apply for ownership. The reasons for the Court’s decision lay in the fact that allowing title of the property to Palmer would be a violation of Article 1 of the Human Rights Convention which states that no one is to be deprived of their possession, except if it was in the public interest.27 Section 3 of the Human Rights Act of 1988 has also mandated that UK law must be read and given effect to in a manner that will be compatible with the goals enshrined in the European Convention of Human rights28. Therefore, in this case, there was a comprehensive review of the law of adverse possession, which had inadvertently deprived many legitimate land owners of their rights over their own properties through no fault of their own. The Court held that the adverse possession had to be proved and one of the conditions was that it had to be shown that the occupation was “inconsistent with the use or intended use by the landowner.”29 Since Beaulane had not planned nay alternative use for the land but had been content to allow Palmer to use it, therefore Palmer was unable to show that his use of the land was inconsistent with the use intended by the landowner as a result of which his claim failed and the rights of the natural land owner were upheld. Thus is may be noted from the above that the compulsory registration of land that has been made a part of the land Registration Act of 2002 is likely to bring about significant developments that will be in favor of legitimate land owners. However, in the instances where there is a genuine issue of unconscionability at stake, it is likely that the New Act will allow the old provisions under English law to continue and allow adverse possession. Thus, the Land registration Act of 2002 addresses the interests of various parties. The Land Registration Act seeks to endow rights to ownership to parties who have retained possession of land for a long time without the express consent of the owner and with the intention to possess the land. Those squatters who have become title owners through adverse possession will not be deprived of their property rights under the Act. The Act also addresses the rights of those who have registered their property before the implementation of the Act – they will not be affected in their ownership of the land. Especially if the land has been held in trust through the Land Registration Act30 , that person will be entitled to apply to be registered as the owner of the land. For the next three year period, the rights of the squatters will be binding on purchasers when tenants have been in actual possession31 But When a person is in possession of a property with the knowledge and consent of the owner, then he will not be eligible for adverse possession32. When a person takes adverse possession but then enters into a consent agreement with the owner, he will not be eligible to apply for registration in his name.33 Moreover, when license to use a land has been obtained from the owner and the licensee continues to remain in possession of the land, he will not be able to apply for adverse possession as established in the case of Trustees of Grantham Christian Fellowship v The Scouts Association Trust Corporation.34 where Blackburn J held in favor of the Church, stating that: “The fact therefore that very many years passed without there being any contact between the Church and the Scout Group over the latters use of the disputed land, much less any acknowledgement of the continuing existence of the license, did not mean that somehow the license ceased to be operative.” 35. In the case of a tenant who acquires the title to a third party’s land by adverse possession, the ownership of the land will be deemed to belong to the landlord.36 When the squatter erects a fence, it may not necessarily be a ground for adverse possession under the Land Registration Act45 and it could also function as grounds against granting adverse possession if it serves to exclude the squatter from the land he is trying to claim.37 Thus, the Land Registration Act has been structured in such a manner that it may also be seen to be an excellent tool for the resolution of many of the intractable disputes that have been the result of the previous land laws that were in existence under the provisions of the land and property Act of 1925. Thus, it may be seen that overall, the Land registration Act has tried to address the differing needs of different parties to ensure some degree of fair dealing in property law. This bucks the trend set by cases such as Pye38 where there has been an element of injustice to the owners since the Grahams remained in possession of the property without rent and without compensation, yet were allowed to attain title to the land in question. Registration and public access to titles: This raises another important effect which is likely to accrue from the compulsory registration of titles which is one of the requirements of the Land Registration Act of 2002. As of October 13, 2003 when the Act has come into force, the Freedom of Information Act of 2000 has decreed that all documents in the Land Registry be thrown open to public inspection. While it has been the case since 1990 that documents that are field with the land registry are available to the public, nevertheless there have been some leases and documents that have been deemed to be sensitive in nature and therefore have been difficult for members of the public to gain free access to39. However, all leases and titles to all kinds of land and property that is registered with the land registry will now become available to the public and may be freely accessed. This could create problems in the instances where there is an element of confidentiality involve din lease or property titles, however the Act has also provided for this instance by allowing certain leases and property documents to be classified as sensitive documents entitled to enhanced protection and restricted access. All leases over seven years must be registered and provision has also been made for voluntary registration of franchises and profits. These are valuable rights and will become more easily marketable once they have their own titles which will become possible under the new Act.40 Boundaries: As a result of the new rules under the Land registration Act, owners of properties can now apply for the exact boundaries to their properties to be determined and will help to determine exactly where the intermediate boundary between two properties lies. This may therefore be seen to be extremely valuable in the course of settling disputes over land, especially those where there is an encroachment on a genuine owner’s land through the erection of a fence and it has become difficult to determine the exact owners of the land. Therefore, existing common law rules on adverse possession may be retained under the new law, however the facility to determine and set out boundaries in the title is likely to provide great aid in settling all manner of disputes arising out of contested boundary lines which has been a thorny problem in English land law for a long time. E-conveyancing: One of the notable areas where the Land Registration act may be seen to make a significant difference is in the area of conveyancing of property. The formality requirements under the LPA of 1925 were onerous and cumbersome and the source of several problems in determination of parties to whom the property was to be conveyed. The requirements on formality have arisen out of the Statute of Frauds of 1677, of which some provisions, notably Section 9, were incorporated into Section 53 (1)(c)of the Land Property Act of 192541. Some of the formality requirements include the intentions of the testator being required to be spelt out in writing with beneficiaries clearly named and the transfer associated with the payment of necessary duties. Section 53 (1) (a) deals with a subsisting trust, 53 (1)(b) deals with oral declarations of trust in land while Section 53 (1) (c) deals with oral dispositions of equitable interests in property. Section 53 (1)(c)states as follows: "A disposition of an equitable interest or trust subsisting at the time of disposition, must be in writing, signed by the person disposing of the same, or by his agent thereunto lawfully authorized in writing or by will.” The purpose behind setting out this clause was to prevent fraud in hidden transfers of equitable interests and in order that trustees who hold the legal interests are able to identify those equitable interests. There is a conflict that arises in terms of the disposition of the legal owner of the trust as set out in the written instruments vis a vis the equitable owner/s or beneficiaries of the trust, since equity starts out in the form of a measure of “confidence reposed in some other” which imposes “a duty or aggregate accumulation of obligations” that connotes some beneficial interest42. Where the disposition of a trust has been set out in writing or by deed, the Courts must give effect to it. In fact, the law of formalities has created inflexibility in some cases and there have been instances where the interests of beneficiaries have been compromised. For example, in the case of Re Diplock43 that concerned the disposition of a trust, the general principle that was laid down was clarified by Pettitt, who states that whenever there is an initial fiduciary relationship, the beneficial owner of an equitable proprietary interest in property can trace it into the hands of anyone holding the property except a bona-fide purchaser for value without notice44. Property held in trust for a beneficiary is generally meant to be assigned on the basis of equity and though the process of tracing is helpful to locate beneficial interests in a trust, Petitt clarifies that this is only possible to the extent that the fund can be followed and identified; if on the facts of any individual case, such continued existence is not established, equity is helpless.”45 However, the provisions of the New Land registration Act of 2002 may be helpful in dispositions of property, especially in cases where the title is the issue at stake, because the formality requirements of the existing law have been coordinated into the new Act, but the facility of conveyancing has been considerably simplified through compulsory registrations of title that have been mandates, which will make it easier to trace the right people to whom property must travel down. In fact, the facility of e-conveyancing is also planned to be allowed, since this will enable all investigations on disputed titles to a property to be carried out from online keyboards, as a result of which professionals can view a title, arrange a transfer and also change the ownership on the title register very easily.46 In the case of uncertain dispositions of property therefore, the New Act may be seen to facilitate correct transfers, by providing extensive information on exact title and ownership records for a property at any given point of time, so that uncertainties are mitigated, especially in instances where a sale or transfer of property needs to be arranged. The conversion to an e-medium is also likely to reduce the bulk of paper work. Digital deeds are proposed to be used and certain standard property transactions would be automated.47 The matter of disposition of property also offers considerable facilities in the transfer of title and disposition of the property. However, this is opposed to the current formality requirements that require a written transfer in the form of a written and signed deed, which has raised several problems about the logistics of such transfers and the veracity and security of such transactions is still being questioned by many48. The possibilities of fraud and digital deception have been some of the issues that have been raised in this connection. Digital conveyancing raises both advantage sand disadvantages, however it is likely that this area will see further legislation being introduced in future, as a result of the initiatives that have been taken under the Land Registration Act of 2002. But in any instance, it is undoubted that the facility of registration of titles and compulsory registration and public access to titles is likely to simplify the process of settling disputes in reference to the title on a particular property. Some of the most intractable disputes in the field of land law have arisen as a result of disputed ownership and through the facility of proper registration of title under the New Act, there is hope offered for the easier settlement of disputes arising out of ownership to property. Easements: Lastly, it must also be mentioned that the Land registration Act of 2002 is also of significance in the area of easements. An easement is a right of way designated for a specific purpose and it does not interfere in any way with the servient property owner’s rights over his land, it is merely a permanent and/or proprietary interest held by someone else over that easement and is an appurtenant, incidental to the land in question. An easement is therefore an interest in the land which will continue even if ownership of the land changes.49 According to the Land Registration Act of 2002; “No easement expressly granted out of registered land from 13 October 2003 can ever override.”50 However, the restriction on the overriding interest only pertains to that granted out of registered land as of 13th October 2003 and does not apply to easements that have existed before that. Before the Land Registration Act of 2002, equitable easements were deemed to automatically enjoy a binding status as overriding interests.51 This has also been upheld by the Courts in several cases, such as for example that of Celsteel v Alton House Holdings52 This overriding interest has been overruled by the Land Registration Act of 2002. Although an easement may be extinguished only “by statute, by express release and by implied release”53 nevertheless, under the provisions of the new Act, when an easement exists, there is a distinct proprietary interest which also exists on the easement and it may need to be protected through a notice on the register of title, before it can be enforceable against a purchaser of the reversion.54 Conclusion: On the basis of the above, it may be noted that the land Registration Act of 2002 is likely to have far reaching effects in terms of establishing rights to ownership over property. It seeks to enforce a fair and equitable distribution in the rights of all parties, including rightful owners, adverse possessors, neighbors who have a dispute over boundary lines and the rights to use easements. Through the requirements of compulsory registration and the right to public access on information contained within the land Registry, the new Act is likely to alleviate many of the sticky, intractable areas of English land law, such as the law of adverse possession which was inadvertently compromising the rights of the rightful property owners. While it does not introduces changes that are so radical that they affect the foundation of common law upon which the English legal system is based, nevertheless they are likely to simplify and facilitate the resolution of disputes over all kinds of property and ensure that fairness and equity is retained in the allocation of interests and rights on land. Bibliography * “Adverse Possession: Land Registry Act of 2002.” [Online] Available at: http://www.landregistry.gov.uk/assets/library/documents/fact_sheet002.pdf; accessed 12/4/2005. * Land Registration Act of 1925, Ch 21. [Online] Available at: http://www.swarb.co.uk/acts/1925LandRegistrationAct.shtml; accessed 12/3/2005 * “Land Registration Rules of 2003” [Online] Available at: http://www.opsi.gov.uk/si/si2003/20031417.htm; accessed 12/4/2005 * “Limitation Act of 1980” [Online] Available at: http://www.swarb.co.uk/acts/1980LimitationAct.shtml; accessed 12/3/2005 End Notes: 1. Section 15(1) of the Limitation Act of 1980 states: No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. 2. Section 29 of the Limitation Act of 1980 states: If the person in possession of the land....in question acknowledges the title of the person to whom the right of action has accrued- (a) the right shall be treated as having accrued on and not before the date of the acknowledgement;...... . Section 30 states that the acknowledgement of true ownership must be in writing and must be signed by the person making it Read More