Land Registration Bill [HL]

Part of the debate – in the House of Lords at 5:00 pm on 30 October 2001.

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Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 5:00, 30 October 2001

My Lords, in moving Amendment No. 20 I should like to speak also to Amendments Nos. 46 and 119 which are consequential. The Bill as it stands will in some circumstances divest the title of those who have already acquired an indefeasible title by adverse possession. We believe that that is wrong. My noble friend Lord Goodhart raised this issue in Committee on 17th July (at cols. 1398 to 1399 of Hansard). Having heard the response of the noble Baroness, my noble friend indicated that he might wish to return to the subject at Report stage.

My noble friend raised two issues on that occasion: first, the effect of the Bill's provisions on those who have already acquired title to land through adverse possession; and, secondly, whether the Bill is compatible with the right to peaceful enjoyment of property which is protected by Article 1 of the first protocol to the European Convention on Human Rights and, in British law, by the Human Rights Act 1998. That intervention was particularly important because on the face of the Bill the noble and learned Lord the Lord Chancellor had, as the noble and learned Lord was obliged to, signed a compatibility statement under Section 19 of the Human Rights Act. We very much hope that the Minister will clarify those two issues in her reply.

As explained by my noble friend Lord Goodhart, under present law, adverse possession extinguishes the title of a previous owner after 12 years; that is, it extinguishes the title and the original owner no longer has any title to the land.

My noble friend also explained that we do not object to the new procedure in Part 9 and Schedule 6 for acquiring title by adverse possession when adverse possession has lasted for fewer than 12 years after the date at which the Bill comes into force. As my noble friend said, that is in line with the well-established principle that limitation periods can be changed without being treated as retrospective alteration of existing rights.

But what of the situation where the existing 12-year period for acquiring title by adverse possession has already been completed when the Bill comes into force? The adverse possessor will have acquired an indefeasible title; that is, a right to the enjoyment of the property.

Under Clause 11(4)(c), adverse possession binds the estate on first registration only if the freehold proprietor--the person with the paper title or the person acquiring the title--has notice. That requirement for notice is new. In the absence of notice, the indefeasible property right of an adverse possessor will be overridden by operation of the Bill. Perhaps the Minister can confirm that that is the position.

Paragraph 7 of Schedule 12 to the Bill, read with Clause 131(2), deals with this issue. It gives three years' grace for someone who claims to have acquired a title which extinguishes that of the first registered proprietor to protect his rights by registration.

Under existing law, Section 15 of the Limitation Act contains a 12-year limitation period for actions to recover land, including rights acquired by adverse possession. Therefore, under present law someone who believes that he or she has acquired title by 12 years of adverse possession is given 12 years to vindicate that property right.

In response to the noble Baroness, Lady Buscombe, the Minister explained that:

"Under the Bill a squatter's rights will override first registration only if the squatter is in actual occupation. Squatters who are no longer in actual occupation will therefore no longer fall within the protected category when the new law comes into force. That could involve some unfairness. Paragraph 7 therefore provides for the existing regime to continue for three years. That will allow sufficient time for squatters who have extinguished the title of the paper owner but who are no longer in actual occupation to make application for registration of title".--[Official Report, 17/07/01; col. 1400.]

In answer to my noble friend Lord Goodhart, the Minister explained that a three-year grace period for someone who claims to have acquired a title by adverse possession is,

"not a particularly onerous price to pay".--[Official Report, 17/07/01; col. 1401.]

The problem is that the three-year grace period is rigid and inflexible. It cannot be extended to allow for special cases of hardship, such as mistake or disability. Perhaps the Minister can confirm that there is no flexibility.

The heading before paragraph 7 of Schedule 12 refers to what are described as "Former overriding interests". The Bill seeks to convert existing indefeasible property rights into precarious rights. The rights are dependent on an uncertain application to the registrar within a fixed time limit of only three years. Perhaps the Minister can also confirm that that is correct.

There may well be cases of individual hardship where because of the complexity of the law of adverse possession and the lack of sufficient publicity about the effect of the Bill in this area, or for any other reasons, individual property rights will be taken away unfairly. The Government plainly cannot devote the kind of resources needed to warn squatters who acquire indefeasible title by adverse possession and are therefore no longer squatters but true owners. Unless the Bill is modified, either in the way proposed by the amendment, or, if that is too radical, in some other way designed to deal with the problem, to allow some exceptional discretion for hardship cases, it will become the courts' duty under the Human Rights Act to read safeguards into the Bill after costly and protracted litigation. Surely it would be preferable for Parliament to include sufficient safeguards against the unfair taking of property which could, and I think will, arise in some exceptional cases.

Therefore, we ask the Minister to deal with these points, which were raised both under the convention and generally in Committee, either in her reply today, or, if that is not feasible, in writing in sufficient time for us to consider the matter at Third Reading. I beg to move.