Land – First registration – Section 15 of the Land Registration Act 2002 – Claimant gypsy occupying land as squatter in adverse possession – Claimant obtaining planning permission for use of land as private gypsy and traveller site – Claimant applying for declaration of entitlement to lodge caution against first registration of land – Whether claimant entitled to declaration sought – Application dismissed
The claimant was a gypsy within section 24(8) of the Caravan Sites and Control of Development Act 1960. Since October 2007, he had resided in his caravan as a squatter in adverse possession of unregistered land adjacent to a road in a residential area in Leatherhead, Surrey. On 3 October 2012, he was granted, by his successful appeal against the decision of the planning authority, planning permission permitting the use of the land as a private gypsy and traveller site. The land was in a residential area and his planning application was supported by local residents.
Prior to his successful planning appeal, the claimant had applied unsuccessfully to the defendant registrar to register a caution against first registration in respect of the land under section 15 of the Land Registration Act 2002. Following his successful appeal, the claimant applied to the court for a declaration that he was entitled under the 2002 Act, to lodge a caution against first registration by virtue of his interest in the land.
It was common ground that the claimant was only entitled to register a caution if he came within one of the two categories in section 15(1). It was his primary case that he came within section 15(1)(a) as the owner of a qualifying estate. It was clear from section 15(2)(b) that the only qualifying estate that he could claim to own was a legal estate in land. The defendant accepted that the claimant had an estate in land but contended that it was a freehold estate so that registration of a caution was precluded by section 15(3)(a)(i). The claimant also argued that to deny his right to lodge a caution would infringe his rights to respect for private and family life under article 8 of the European Convention on Human Rights.
Held: The application was dismissed.
The issue was conclusively determined by section 1(1) of the Law of Property Act 1925 under which only two kinds of estate in land were capable of subsisting at law. The claimant clearly did not have a term of years; nor was it suggested that he had only an equitable interest, which in any event would not qualify under section 15 of the 2002 Act. Accordingly, if he had an estate in the land at all, it could only be an “estate in fee simple absolute in possession”, i.e. a freehold. His lodging of a caution was therefore precluded by section 15(3)(a).
It was fundamental to English land law that title, at least to unregistered land, was not absolute but relative. If a squatter remained in adverse possession for 12 years, he acquired a title good against the paper owner. However, in the intervening period, before the expiration of the statutory 12 years, the squatter, although he might be ejected by the owner of the paper title, was himself protected by his act of possession. He could sue strangers for trespass or nuisance and could convey the land. If he died, the land would pass under his will or intestacy. If the distinction between estate and title was borne in mind, the discussion of the nature of a squatter’s right to the land as discussed in the authorities was readily understood: Perry v Clissold [1907] AC 73, Taylor v Twinberrow [1930] 2 KB 16, Fairweather v St Marylebone Property Co Ltd [1963] AC 510 and Buckinghamshire County Council v Moran [1990] Ch 623 considered.
The rationale of the statutory exclusion of a freehold owner from lodging a caution was that a caution against first registration was not intended to provide a substitute for first registration pursuant to section 3(2) of the 2002 Act. However, the claimant could not be registered until 12 years had elapsed from his going into possession and he had acquired a good title against the paper owner under the Limitation Act 1980. Thus the rationale for the exclusion was not applicable in his case. Although the 2002 Act could have allowed a person in his position to apply to lodge a caution, it had not done so.
In order to qualify under section 15(1)(b) of the 2002 Act, the interest had to affect a qualifying estate but the only qualifying estate apart from the claimant’s own freehold was that of the paper owner. Since the claimant’s overriding interest did not affect the paper owner he did not satisfy section 15(1)(b).
As regards the claimant’s human rights, the concern expressed was that without the ability to lodge a caution someone with a defective or fraudulent claim might persuade the defendant to register him as the freehold owner, whereas notification to the claimant in advance which a caution would secure would enable him to object to such an application at the time. However, if registration was improperly granted, the claimant could apply to have the register altered. It was fundamental that a caution gave no interest in land but only a procedural safeguard. Bearing in mind the relatively remote risk about which the claimant was concerned and the remedy of rectification, denial of the claimant’s right to lodge a caution did not come within the kind of substantial interference that was necessary to engage his article 8 rights: Harrow London Borough Council v Qazi [2003] 3 EGLR 109 considered.
Marc Willers (instructed by The Community Law Partnership) appeared for the claimant; Tim Buley (instructed by the Treasury Solicitor) appeared for the defendant.
Eileen O’Grady, barrister