The Law of Trusts and Equitable Obligations - Essay Example

The law relating to adverse possession has been fundamentally changed by the Land Registration Act 2002’. Critically evaluate this ment with reference to the justifications for changes to this area of the law. Prior to the introduction of the Land Registration Act 2002 landowners could find themselves dispossessed of their land if someone could prove that they had been in possession of the land for a period in excess of 12 years. Persons claiming adverse possession had to show that they had had factual possession of the land for the full duration of 12 years, without interruption by the landowner. Possession of the land must have been peaceable and open, and the land must have been exclusively used by the person claiming possession of the land. Cockburn LJ in Bryant v Foot (1867) Cockburn CJ came to the conclusion that adverse possession could be proven ‘not on the ground that possession over a given period gave an indefeasible right, but on the assumption, where possession or enjoyment had been carried back as far as living memory would go, that a grant had once existed which had since been lost. 1’ For a claim for adverse possession to succeed the claimant needs to prove that the land has been maintained or used solely by them in the relevant period. There is no requirement for the applicant to be in physical occupation of the land, and cases have been allowed were the land has been used for the grazing of animals belonging to the claimant.2 The erection of a fence or wall around the land could be used to prove that the land has been used exclusively by the claimant however there is no requirement for the land to be enclosed in order for a claim to succeed. Where the claimant has been given permission by the landowner to use the land, a claim for adverse possession would be likely to fail. Use of the land without the consent of the landowner can lead to such a claim, unless the landowner knew that the claimant was using the land in this way, and failed to take any steps to stop him form doing so. With a claim for adverse possession, the applicant has to prove that it was their intention to possess the land.3 A claim for adverse possession was rejected in Leigh v Jack (1879).4 In this case, the court found that it was obvious from the actions of the real owner that they had never, at any point in time, discontinued possession of the land and that the actions of the claimant were insufficient to prove that the real owner had been dispossessed. From this case the ‘implied licence’ theory was developed. Such a ‘licence’ only gave the squatter ‘mere’ possession of the land and none of the rights of the true owner would be interfered with. Before the LRA 2002 the adverse possessor would be regarded as the beneficial owner of the land, and the court would take the view that the true owner was holding the land on trust for the adverse possessor. Once the adverse possessor has been recognised as the beneficial owner of the land they would be entitled to register themselves as the legal owner of the land. This would then extinguish all the rights of the true owner.5 Claims against the adverse possession were governed by the Limitation Act 1980 s15(1), under which the true owner of the land would be unable to recover the land if the person making the claim had been in possession for 12 years.6 Claims for adverse possession could be defeated if the occupier acknowledged in writing the true owners entitlement to the land.7 Similarly, a claim would be dismissed if the occupier had been granted a tenancy or licence to use the land. Claims were also disallowed in situations were the true owner had physically re-entered onto the land within the 12 year period. Prior to the LRA 2002, very little was done to trace the true owner of the land, and there was no requirement for the true owner to be notified of the intention of the claimant to claim adverse possession. Since the Act was launched, anyone claiming adverse possession that had not had possession for 12 years by October 13 2003 would be bound by the regulations laid down by the Act.8 Under the LRA 2002 an application has to be made to the Land Registry after the claimant has been in occupation for 10 years.9 The Land Registry then has a duty to notify the real owner that a claim for adverse possession has been lodged. The real owner must respond within 65 working days of the notification, otherwise the title will automatically be transferred to the applicant. If the true owner objects to the application, then it is usual for the application to be rejected unless one of the exceptions listed under the Act apply. 10 Applications have been allowed to continue despite the objections of the true owner, if the claimant can prove that it would be unconscionable to dispossess the claimant in reliance on the equity of estoppel. The courts would also overrule objections if the applicant could show that they ought to be entitled to be registered as the owner or if the land is adjacent to their own. The authority for the court to make such an order is governed by Schedule 6 paragraph 5 of the LRA 2002. Claims brought by the applicant where the land claimed is adjacent to his own can only be allowed if the applicant can prove that he had reason to believe that the land belonged to him.11 If the court allows the objection made by the true owner, then proceedings must be commenced within 2 years to have the adverse possessor removed from the land. Failure to commence such proceedings within 2 years will allow the adverse possessor to make a further claim for adverse possession.12 As the true owner has been previously notified about the application for adverse possession, there is no requirement in law for the Land Registry to notify them of the subsequent claim, if the true owner has failed to take the necessary action to dispossess the claimant. Regardless of the right of the owner to take action to evict the adverse possessor, that person might be able to remain in occupation of the land if they can show that they have an interest in the property. Such an interest would be regarded as an overriding interest, and will remain in force so long as the claimant remains in physical occupation of the land.13 Although the LRA 2002 has not totally abolished the right of an individual to claim adverse possession, the changes that have been implemented have made it more difficult for such claims to succeed. In the past, decisions on claims for adverse possession were often made in the absence of the true owner, as there was no legal requirement for the true owner to be made aware of the application for adverse possession. Now that the Land Registry have been tasked with notifying the real owner, of the intention of the claimant to claim adverse possession, the only hindrance to the true owner being made aware of the application would occur if the true owner had failed to notify the Land Registry of their new address, if they no longer live at the address recorded at the Land Registry. The courts have placed a duty on the real owner to notify such changes. When the Land Registry attempts to contact the real owner, communications will only be sent to the last known address of the owner, and there is no requirement for the Land Registry to take any further steps to trace the owner. Once a letter has been sent by the Land Registry to the last known address, the courts will make a presumption that the true owner has been duly notified, and the 65 day time limit in which objections can be made, will commence. The court will not allow the true owner to recover the land if it is subsequently awarded to the adverse possessor, even if the true owner can prove that they never received the letter telling them about the application. Although the LRA 2002 has protected the rights of the landowner from being dispossessed, person in occupation of the land might still be entitled to remain there under the doctrine of proprietary estoppel. Such claims might arise if there has been a representation made by one of the parties and there is an expectation that the other party will rely on this representation. The person relying on the representation has a duty to prove that in reliance on this representation they have acted in their detriment. This occurred in Ramsden v Dyson in which Lord Kingdown stated that proprietary estoppel should apply If a man, under a verbal agreement with a landlord for a certain interest in land, or under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and, upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation. 14 Conversely, in Thorner v Curtis [2007] the court held that the claim for proprietary estoppel should be disallowed since Curtis was unable to prove that he had acted to his own detriment.15 Curtis tried to aver that he had been led to believe by the plaintiff that he would inherit the farm in the future. The court stated that without the requisite proof of this claim, there was no reason why the land should not be given back to the plaintiff. 16 From the above, it can be concluded that it was necessary for the law in relation to adverse possession to be amended in order to prevent ‘true’ owners of the land from being dispossessed of their land. The principle of proprietary estoppel provides a limited safeguard for those who might have a bona fide interest in the property, but no legal interest in it. Similarly, the protection offered by Sch 6 para 5 of the LRA 2002 will also assist those who have been using the land of another, in the mistaken belief that the land actually belonged to them. It is obvious, from the above, that the previous system whereby there was no requirement to notify the true owner that an application for adverse possession had been made was clearly unfair for the true owner. The lack of requirement frequently led to someone losing what was rightly theirs, simply by not being made aware of the intention of the claimant to claim the land. The new requirements under the Act have removed some of the unfairness, although failure by the true owner to notify the Land Registry of new contact details, might still lead to the true owner not being notified of the application, and subsequently becoming dispossessed of their land. Bibliography W. Ashburner, Principles of Equity, 2nd Ed, (London: Butterworths, 1933). P. Birks, An introduction to the Law of Restitution, (Oxford: Oxford University Press, 1985). M. Bridge, Personal Property law, (Oxford: Clarendon Press, 2002). P. Bryn, Understanding Land Law, 3rd Ed, (London: Cavendish Publishing Ltd, 2000). Civil Procedure, The White Book, Volumes 1 & 2, (London: Sweet & Maxwell, 2002). T. Cockburn, & M. Shirley, Equity in a Nutshell, (Sydney: Lawbook Co, 2005). T. Cockburn, W. Harris, & M. Shirley, Equity & Trusts, (London: Butterworths, 2005). E J.Cooke, ‘Adverse possession, electronic conveyancing, and registration, overriding interests: Title to lan’, Conv 11 , (2002). M. Dixon, Modern Land Law, 5th Ed, (London: Cavendish Publishing Ltd, 2005). M. Dixon, M, ‘The reform of property law and the Land Registration Act 2002: a risk assessment’. Conv 136, (2003). M. Dixon, Modern Land Law. (6th ed.). (Abingdon: Routledge-Cavendish, 2009). M. Dockray, ‘Why do we need adverse possession’ Conv 272, (1985). N. Glover, & P. Todd, P, ‘Inferring share of interest in home: Midland Bank v Cooke’, 4 Web JCLI 28 September 1995. N P. Gravells, Land Law Text and Materials, 2nd Ed, (London: Sweet and Maxwell, 1999). K. Gray, & S. Gray, Elements of Land Law, 4th Ed, (Oxford: Oxford University Press, 2005). K. Gray, & S F. Gray, Land Law, (4th Ed), (Oxford: Oxford University Press, 2006). D J. Hayton, The Law of Trusts and Equitable Remedies, 11th Ed, (London: Sweet & Maxwell, 2001). J A. 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