Curing title defects in unregistered land – adverse possession and other remedies

The doctrine of adverse possession has generated a lot of controversy over the last 10 years or so. My paper today focuses on only one small aspect of the important questions that have been raised about the doctrine and its role in modern day land law. Some of you might view it as a very technical point but at a more general level it does suggest that certain basic assumptions that have always been made to justify the doctrine should be examined. I have to begin by briefly outlining the reforms were introduced to the English law on adverse possession by the Land Registration Act 2002. These may be very familiar to some of you but not others. The 2002 Act reformed the doctrine as it applies to registered land. It dramatically improves the position of the registered owner. It allows the owner to veto an adverse possession application unless the applicant falls within one of three exceptional situations. These exceptions or qualifications to the veto were designed by the Law Commission to cater for situations where it felt the balance of fairness lay with the adverse possessor; these were ‘deserving’ squatters. Basically, the owner is now warned of the adverse possession application before his title is extinguished. He can object to the application unless the applicant is also entitled to be registered because of the doctrine of proprietary estoppel or because they possess an entitlement on the basis of an informal transaction or transmission. The third exception operates if the applicant owns adjacent land and can prove that throughout the limitation period he believed he owned the boundary plot. The Law Commission felt that the reforms would ensure that the doctrine continues to restore the marketability of abandoned land. Provided the registered owner keeps his contact details up to date on the register, it can probably be assumed that if he fails to object to the application, he has abandoned the land. In all other circumstances, the Law Commission felt that this new qualified veto system of adverse possession would operate in a manner that is fairer to the owner and prevent the immoral appropriation of land.