Adverse possession – legal theft

The recent decision to award property title to a squatter has highlightedthe urgency of

the Law Commission’s proposed land registration reforms,writes David Taylor. David

Taylor is head of property at Berwin Leighton.Media attention has focused this week on

the doctrine of adversepossession with cries of incredulity from the tabloids that the

law isprepared to legitimise what Lord Justice Nourse has previously described

as”possession as of wrong”.The publicity relates to the decision in Ellis v Lambeth

London BoroughCouncil on 9 July 1999 when the appellate court dismissed Lambeth’s

appealagainst a court declaration that adverse possession had been established.Timothy

Ellis moved into the property at 52 Strathleven Road London SW2,which was owned by

Lambeth, together with other squatters in 1983. In 1993,the council sought to sell the

property and Mr Ellis, having been servedwith a revocation notice to vacate, applied to

be re-housed.However, the sale did not take place and Lambeth failed to

instituteproceedings to recover possession. In September 1997, Mr Ellis, with thebenefit

of legal aid, issued proceedings seeking a declaration that he hadbecome the owner of

the property by reason of his adverse possession since1983.Lambeth contended that Mr

Ellis was stopped from proving 12 years ofcontinuous occupation prior to September 1997

by reason of his failure toreturn two community charge registration forms sent to the

property in1989, which amounted to a representation by silence that the property

wasunoccupied.The judge at first instance concluded that the representation was

ofinsufficient weight to undermine the evidence of adverse possession between1983 and

1997 and this was upheld by the Court of Appeal.Adverse possession stems from the

evolution of the land law system inEngland and Wales, which is grounded in the

relativity of title anddependant ultimately on possession. Mr Ellis was able to satisfy

the tworequisite elements: factual possession and the intention to possess andonce this

condition had continued for a period of 12 years, section 15 ofthe Limitation Act 1980

barred Lambeth from asserting its prior title. Theeffect of the act was not to transfer

this title, but merely to extinguishit.However, the indirect effect was to leave Mr

Ellis free from any claimsunder it and with a new and independent title based on his own

possession.(The marketability of his title in view of the reluctance of banks

andbuilding societies to lend against mere possessory title remains to beseen.)The legal

mechanism can be justified as preventing land sterilisation insome circumstances, such

as where a true owner has disappeared or wherethere is a mistaken belief as to

ownership. However, in scenarios such asthis one its effect is remarkable in

legitimising land theft.The understandable moral derision with which the decision has

been greetedshould give encouragement to the Law Commission, which undertook a

fullreview of the current law in its consultation paper, Land Registration forthe 21st

Century. In relation to the registered land system, where theexisting law creates the

greatest anomaly, it proposes to restrict theapplication of adverse possession to the

narrow class of cases where it isessential to ensure marketability of land or to prevent

unfairness.Their proposals in the context of this latest case are to be welcomed andwe

must hope that the Government moves swiftly to enact the necessarylegislation.