The Land Registration Act 2002 introduced a new regime, which applies where squatters want to be registered with title to registered land. The new regime makes it more difficult for adverse possession claims to succeed if they are opposed.
On receiving the squatter’s application, the Land Registry will send the proprietor a notice, accompanied by explanatory notes, and a form of counternotice. Recipients should complete the form and return it to the Land Registry within 65 business days, objecting to the application and requiring the squatter to prove that it is entitled to be registered as the proprietor: (i) on the ground of an estoppel; (ii) for some other reason; or (iii) because there is a boundary dispute and the squatter and its predecessors have, for the last 10 years at least, reasonably believed that the land belonged to them.
In the majority of cases, none of these conditions will apply. This means that title to registered land is usually unassailable. However, if a registered proprietor fails to oppose an application within the 65-day period, the squatter will be registered as the proprietor of the land.
Importantly, Baxter v Mannion [2010] EWHC 573 (Ch); [2010] PLSCS 86 establishes that failure to oppose a squatter’s application is not irreversible. The decision confirms that if a squatter is registered with title to land under the new regime, but it then transpires that it was not in adverse possession for the requisite period, the registration will constitute a mistake that can be corrected by an application for rectification of the register.
The court rejected the squatter’s arguments that: (i) registration under the new regime is not a foregone conclusion, even where an application is unopposed, because the Land Registry will still need to be satisfied by evidence that supports the squatter’s claim; (ii) therefore, his registration was not a mistake; (iii) he had been registered as a result of the previous proprietor’s failure to serve a counter notice in good time.
The judge ruled that the new regime had been enacted to offer greater security to registered proprietors and it would be strange if the legislation placed registered proprietors at risk of losing their land to a party that had never been in adverse possession of it. In addition, if this were the position, it might invite fraud. It would also be wholly disproportionate to deprive a proprietor of land merely because it had failed to serve a counternotice (especially if, as in Baxter, there were extenuating circumstances).
None the less, former proprietors will still be at a disadvantage in such instances, because the Land Registry must obtain the new proprietor’s consent before altering the register, unless it caused or substantially contributed to the mistake by negligence or fraud, or it would be unjust not to make the alteration. Consequently, a former proprietor cannot be assured that its title will be restored.
The decision highlights the importance of notifying the Land Registry of any changes in a proprietor’s address for service and of responding timeously to any notices received.
Allyson Colby is a property law consultant
