The Land Registration Act 2002 introduced a new regime that makes it more difficult for squatters to use adverse possession to attack titles to registered land.
On receiving the squatter’s application, the Land Registry will send the registered proprietor a notice, accompanied by explanatory notes and a form of counternotice. Recipients should complete and return the form within 65 business days, objecting to the application and requiring the squatter to prove that it is entitled to be registered as the owner: (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 past 10 years at least reasonably believed that they owned the land.
In many cases, none of these conditions will apply, which means that the title should be unassailable. However, if a registered proprietor fails to oppose an application within the 65-day period, the squatter will be registered as the owner of the land.
The issue at stake in Baxter v Mannion [2011] EWCA Civ 120; [2011] PLSCS 57 was whether the consequences of failing to oppose an application can be reversed if the previous owner can show that the squatter was not in adverse possession of the land for the requisite period or at all. To put it another way, does the Act enable a land-grabber to steal land using bureaucratic machinery that trumps reality?
The Court of Appeal rejected the squatter’s arguments that the registration was irreversible. It agreed that to hold otherwise would contradict the policy that underpins the legislative provisions, which were enacted to make it more difficult to lose registered land to squatters.
Parliament could not have intended to allow a party that has not been in adverse possession for the requisite period to obtain a registered title, because this would invite fraud. A dishonest applicant could falsely claim that it had been in adverse possession for 10 years, knowing that the registered owner would be away or would be unlikely to send the registry a counternotice in time or at all. The application would succeed if it appeared to be in order and, if land could be lost in this way, the owner would lose it without being compensated for its loss, which would contravene Article 1 of the First Protocol of the European Convention on Human Rights.
Jacob LJ’s thoughts about what constitutes a mistake for the purposes of the Act will interest practitioners. He did not think that the phrase “correction of a mistake” has a special, limited meaning. He accepted that the registration of the squatter had been a mistake and ruled that it would be unjust to refuse to correct the error. Consequently, the registry was ordered to restore the title to the previous owner.
Practitioners will welcome the decision. None the less, owners of registered land should safeguard their position by notifying the registry of any change of address and by responding promptly to its notices.
Allyson Colby is a property law consultant
