I beg to move amendment No. 72, in page 58, line 14, after ''5'', insert ''(2) and (3)''.
The amendment seeks to limit the applicable conditions to exclude the conditions set out in paragraph 5(4). I do not know whether all hon. Members have looked at the amendment, but it arises under the general heading of the effects of registration.
Paragraph 9(3) states that where a squatter—for a moment I thought that I might get a glimmer of interest from the other side of the Committee—is registered as proprietor, he takes the property free from any mortgage that is registered against it. Paragraph 9(4) goes on to specify certain exceptions; in other words, cases where the squatter will take the property subject to any existing mortgage. Such situations could crop up quite easily; a lot of squatting goes on in relation to land, so I hope that we will get a coherent response, of the sort to which we are used, from the Minister. The question is whether a squatter should take subject to a mortgage when paragraph 5(4) applies.
One of the requirements is that the squatter reasonably believes that the land is already his. With the greatest respect to squatters, I have to say that they often believe that the land is already theirs, for reasons that, I suspect, have much to do with the arguments that we heard during debates on new clauses 2 and 3. Irrespective of whether or not land is actually owned by someone, a belief is prevalent in certain parts of the world that it should belong to everyone. Squatters fall into that category. They are sometimes driven to illegal occupation of land in circumstances in which many people are sympathetic to their plight. However, I suggest that, in most cases, they have a reckless disregard for the land that they are invading.
In this case, a requirement is that the squatter reasonably believes that the land is already his. That requirement exists to cope with genuine boundary confusions. I shall give an illustration of what is likely to happen. It sounds a little like the questions put to me in my Law Society final examinations, so the Committee must forgive me if I read it with some nostalgia. A takes out a mortgage on his house and large garden. Unknown to him, the deeds include, and therefore the mortgage covers, a strip of land at the edge of the garden actually occupied by his neighbour, B. B thinks that that land is his. When he discovers that it is not, he successfully applies the registration of his title acquired by adverse possession. That only confirms the position that has existed for at least 10 years.
In such circumstances, why, asks the examiner—and the official Opposition—should B be saddled with a slice of A's mortgage? I see that the student Minister is passing a note to his tutor to ensure that we get the right answer. I do not say that with any disrespect, because I am sure that we need, and will get, the right answer. The amendment would exempt B. Will the Minister please comment?
The amendment is interesting and relates to situations that could arise frequently. Undoubtedly there will be applications where a squatter has gained title to a large proportion of the estate. Sometimes, the sums of money involved will be large, whether the proportion of the estate is small or large. In such circumstances, were the amendment adopted, former registered owners could find not only that they had lost a proportion—perhaps a valuable one—of their land,
but that they still remained subject to any charge on the land that had been lost. Additionally, a lender could lose a significant part of its security. It seems to me that that would be an injustice for both the former owner and the lender.
We face a choice. The Bill as it stands imposes the inconvenience of an additional stage in working out what should happen when a squatter is successful. That often involves comparatively small sums of money, but undoubtedly fairly apportions the remaining financial liabilities and any charge on the land. The amendment would remove that stage for many, but would be unfair for the few cases in which there was a large charge. The existence of the apportionment rule could discourage some from making unmeritorious applications. There is a possible argument—it may not carry much weight with the hon. Member for Stone—that, were the amendment made, it would place the Bill at the risk of being challenged under the Human Rights Act 1998. The general arguments are in favour of the Bill as it stands.
It is, and, if the amendment were made, the Bill might fall foul of article 1 of the European convention on human rights as it relates to the Human Rights Act.
At the dying stages of the Committee, I do not want to enter into an arid discussion. However, with whom do the legal rights lie? If the rights lay, by adverse possession, with the ownership of the squatter, he would be able to sustain human rights vis-a-vis the owner of the land. That would be a perfect example of the nonsense that is thrown up by some parts of the Bill.
Quite simply, the human rights would be those of the chargee. The amendment throws up certain problems in that respect. After taking in the other arguments for a balance of fairness, I hope that the hon. Gentleman will withdraw the amendment. I recognise his point, but a balance of fairness must be struck and we think that the Bill strikes it.
I am always happy to consider anything that the hon. Gentleman says, but can give no guarantee as to the outcome of that consideration. I hope the fact that I will give consideration will enable him to withdraw the amendment.