The New Law

<body topmargin=0 leftmargin=0 marginheight=0 marginwidth=0> <table cellpadding=0 cellspacing=0 border=0><tr> <td valign="top" colspan=2 height=90 BGCOLOR="#006699" TEXT="#080000" background="044085a3.jpg"> <div> <FONT SIZE="5" COLOR="#FFFFFF" FACE="Arial" ><B>thebubblingpot</B></FONT><B>    </B><B> |     </B><A HREF="index.htm" TARGET="_top" TITLE="thebubblingpot"><U><B>home</B></U></A></div> <div> <A HREF="id40.htm" TARGET="_top" TITLE="legal dragons"><U>legal dragons</U></A>   |   <A HREF="id39.htm" TARGET="_top" TITLE="legalise on claiming land"><U>legalise on claiming land</U></A>   |   <B>The New Law</B>   |   <A HREF="id35.htm" TARGET="_top" TITLE="Finding Plots "><U>Finding Plots </U></A>   |   <A HREF="id36.htm" TARGET="_top" TITLE=" How To Stake Your Claim"><U> How To Stake Your Claim</U></A>   |   <A HREF="id37.htm" TARGET="_top" TITLE="Successful Claims In The Press"><U>Successful Claims In The Press</U></A>   |   <A HREF="id38.htm" TARGET="_top" TITLE="FLOW CHART"><U>FLOW CHART</U></A>   |   <A HREF="id60.htm" TARGET="_top" TITLE="Title 60"><U>Title 60</U></A></div> <div> </div> </td> </tr><tr> <td valign="top" width=210 BGCOLOR="#FFFFFF" TEXT="#080000" background="045d2e83.jpg"> <bR> </td> <td valign="top" height=390 BGCOLOR="#FFFFFF" TEXT="#080000"> <div> <I>The New Law</I></div> <DIV ALIGN="LEFT"></DIV> <div> Chapter 1 - The New Law</div> <div> Unregistered Land:</div> <div> The Law Commission in a report in 1998 recommended that the law relating to adverse possession be simplified so as to protect landowners with a registered title against loss of their property. This has now become the Land Registration Act 2003. The Act has profound implications for adverse possession, changing much of the present legal structure, making it more difficult to obtain adverse possession, but also ensuring greater rights once the limitation period of two years after final registration has passed.</div> <div> When land registration was first contemplated, there was an understandable wish on the part of those establishing this new principle of title that the fact of registration should eclipse title by adverse possession; the two were not considered to be compatible bedfellows. However, the principle (of title of history and, instead, the concept of a trust was implied by Section 75(1) of the Land Registration Act 1925), the registered title owner being deemed to hold on trust for the person "Who by virtue of the Limitation Acts has acquired title against the (registered) proprietor".</div> <div> In its Report entitled "Land Registration for the Twenty-First Century", the Law Commission, amongst its various acknowledgements, comments that there remains little compelling argument to retain the deemed trust, and that it should go. There is a further case put forward that there is no real need to attempt to reconcile the irreconcilable - a set of rules founded on a possession-based system (unregistered titles) and a further distinct set of rules basing title upon the fact of registration (registered title). The Law Commission stopped short of suggesting abolishing title by adverse possession altogether, on the basis that there are some cases where it remains justified, it cites just four examples:</div> <div> a. Where the paper owner is untraceable.</div> <div> b. Where there have been dealings "off the register"</div> <div> c. Where there is inconclusive evidence on the register (usually boundary disputes); and</div> <div> d. Where entry into possession occurred on a reasonable mistake as to entitlement and where rectification would cause greater hardship.</div> <div> The argument is that, without some acknowledgement of the "possessor's rights", the subject land would effectively become incapable of dealing. It would be untouchable</div> <div> i. a system of now computer-based land registration, incorporating a guarantee backed by Government and</div> <div> ii. title acquired by adverse possession, is too fundamental to be capable of resolution and that finally this fact must be faced.</div> <div> Although the time limit within which the possessor may claim to be registered is to be reduced to 10 years (from 12 years), the Land Registry, having ensured that the applicant has established this time-based condition, will then notify the registered proprietor of the subject property of the fact of the possessor's application. The registered proprietor will have two years within which to object to the application.</div> <div> The steps and processes to be taken into account are set out in sections 96 to 98 and schedule 6 of the Land Registration Act 2002, and paragraphs 187 through to 194 of the Land Registration Rules 2003 (S.I. No 1417) as well as schedule 8 to the rules. The Land Registry also produces briefings and information sheets. The new Act makes a distinction between registered land and unregistered land, with two separate procedures. The provisions relating to registered land do not come into force until the 13th October 2004, whilst those for unregistered land like the main body of the Act come into force on the 13th October 2003.</div> <div> The Act relating to unregistered land remains roughly the same as it was under the previous regime. The processes are set out in the Land Registry Practice Guide 5. Before the Land Registry will even process an application for unregistered land the possessor will need to demonstrate to them the following 4 factual tests:</div> <div> - the possessor has factual possession of the land;</div> <div> - the possessor has the necessary intention to possess the land;</div> <div> - the possessors possession is without the owner's consent; and</div> <div> - all of the above have been true of the possessor and any predecessors through whom the possessor claims for at least 12 years prior to the date of the application.</div> <div> There are two limitation periods; the standard 12 year period which still applies, and includes most land, the exceptions being crown land, and those by spiritual corporations such as vicars and bishops, when the period is 30 years. Adverse possession cannot be registered until after those periods have expired. As always a possessor can pass on, or even sell his right, and the successive periods of adverse possession will count towards the relevant period, thus a father who dies and leaves the squatted land to his child will not have the rights so far accrued taken away. The interesting thing is this though - that someone possesses the land, but in his absence another acquires that land and the second possessor can claim both periods towards the relevant period. Although the first possessor could bring possession proceedings against the second possessor up to 2006.</div> <div> The application is made on form FR1. You must make sure you complete the form in plain English, complete all sections, attach any evidence to support the points that must be proven, and particularly make sure that the declaration is signed. Evidence should also have a declaration attached which usually means that you go to your local solicitor (no appointment is usually necessary and most charge between £5 to £10) and this should not really be the solicitor that is either acting for you, or is likely to act for you on the registration.</div> <div> Look to include statements from others who can support your clam, especially if those persons could be said to be independent, for example if you were possessing a house the postman or milkman might be able to say how long they have known you to have been in occupation. Also you might have evidence of paying rates, electricity or other utility bills for the property. Be as wide-ranging as possible.</div> <div> A first caution can only be registered for the first two years after a 12 year period, in which case it would seem to be much more logical to get on with making the first registration application, in this way the issue is resolved that much sooner.</div> <div> The Land Registry will inform any known owners of the land, and if anyone objects and the issue cannot be settled amicably by the parties, then it will in the first instance be addressed to an Adjudicator who will either hold an inquiry into the case, or will refer it to the courts for determination. If the possessor loses this can be expensive as the costs of the owner will have to be paid, so it is vitally important that you get your case straight before you seek registration, after all you have had up to 12 years to do that.</div> <div> There are some transitional issues between the old system and the new system but by and large they simply mean that an existing right is protected as under the old law, the date between the two systems being the 13th October 2003.</div> <div> Registered Land:</div> <div> Adverse possession on registered land has undergone a fundamental change under the new lay. The first change is that the time period has changed from 12 to 10 years, with a 2 year period for challenges to be made before the possessor gains full rights to the land. It also means that any registered owner will be formally notified of the application and stringent controls exist to uphold the true owners rights.</div> <div> The reality is that it is likely that only where an application is not contested will the land be registered to the possessor. The only exceptions to that are where:</div> <div> - it would be unconscionable because of an equity by estoppels for the registered proprietor to seek to depose the possessor and the possessor ought in the circumstances to be registered as proprietor; or</div> <div> - the possessor is for some reason entitled to be registered as proprietor; or</div> <div> the possessor has been in adverse possession of land adjacent to his own under the mistaken but reasonable belief that he is the owner of it, the exact line of the boundary with this adjacent land has not been determined and the estate to which the application relates was registered more than a year prior to the date of the application.</div> <div> *ESTOPPELS - (estoppels) A bar which precludes someone from denying the truth of a fact which has been determined in an official proceeding or by an authoritative body. An estoppels arises when someone has done some act which the policy of the law will not permit to deny.</div> <div> In certain situations, the law refuses to allow a person to deny facts when another person has relied on and acted in accordance with the facts on the basis of the first person's behavior.</div> <div> There are 2 kinds of estoppels.</div> <div> Collateral estoppels prevent a party to a lawsuit from raising a fact or issue which was already decided against him in another lawsuit. For example, if Donna obtained a paternity judgment against Leroy and then sued him for child support, Leroy would be collaterally estopped from claiming he isn't the father.</div> <div> Equitable estoppels prevents one party from taking a different position at trial than she did at an earlier time if the other party would be harmed by the change. For example, if after obtaining the paternity judgment, Leroy sues Donna for custody, Donna is now equitably estopped from claiming in the custody suit that Leroy is not the father.</div> <div> An example of the slowly disappearing tendency of the legal profession to speak in secret code. All it means is 'Stopped,' 'Blocked' or 'Not Allowed.' Not only is it bizarre but the term does not appear to originate in any known language. Research indicates it started either as a legal fraternity's drunken prank or was the result of an unknown Judge's severe speech impediment.</div> <div> The other way that land could be registered is if after the first rejection of an application to register the land the possessor remains in possession for a further two years, he will be able to re-apply, and with only a few exceptions will be registered even if anyone opposes the application or not.</div> <div> The grounds to be proven are the same as those for unregistered land, as already set out above. An application must be made on form ADV1. Much of the process for unregistered land equally applies to registered land. Where the<FONT SIZE="3" COLOR="#FFFFFF" FACE="Arial" > land registry accepts the application as valid they will then inform the registered owner and other relevant people, who will then have 65 working days to respond. If no rejection is received, or no counter notice is served, then the possessor will be registered at the end of the 2 year period.</FONT></div> <div> The same process takes place where an objection is lodged to that of unregistered land. Where a counter notice is served then if the possessor has in his application relied upon any of the 3 points set out above, and the Registrar considers that he has an arguable case then the matter will be referred for adjudication. Before setting out to register land you should look carefully at section 8 of Practice Guide 4 which deals with the process in detail. If a counter notice is served, and the possessor has not relied upon one of the 3 points then the application will be rejected. Where the possessor's application is rejected and he is still in possession proceedings, or judgment has been given against him for possession in the previous 2 years, or has actually been rejected because of a judgment for possession, then he must be registered.</div> <bR> </td> </tr></table></body>