The following explains the consequences when a trespasser is allowed to occupy a property without disturbance for a prolonged period. We also discuss the rights acquired by such a trespasser and the procedure involved in the registration of that interest. Here again, the process of registering the property would vary, depending on whether the land is registered or unregistered.
Almost all civil actions are subject to the law of limitations, wherein a claim of right if any should be made before the period set for that purpose or the right to litigate stands forfeited. This is of course subject to the fact that there do not arise situations that are beyond the control of the litigant.
Such a law of limitation also applies to the case of adverse possession. Thus, if a landowner finds that his property is being trespassed upon, he should sue within the limited time period. If he fails to do so, he loses his rights over the land, and the title may be acquired by adverse possession.
Conventionally such a provision was applicable to all lands, irrespective of the fact that they were registered or unregistered. But after 2002, major changes in the LRA have ensured that the laws are different for unregistered and registered land. In both cases, the onus of proving that the land is theirs lies on the trespasser, who would need to show details proving the length and nature of his possession.
Adverse Possession of an Unregistered Land
In the case of adverse possession of an unregistered land, the law of limitation is set at 12 years and the trespasser will have to prove that he has been in possession of the land. The occupier would have and should have demonstrated some intention that the land in question was occupied with an intention to exclude the world including the owner with the title. Such an act should be in accordance with practices considered reasonable and lawful. This is in fact, the gist of a judgment passed in the Powell vs McFarlane [(1970) 38 P&CR 452] case.
Thus, the trespasser is given 12 years to defeat the title of the true owner, but such a period can be extended for a further period, if the true owner was under a disability. At the end of the 12 year period, the title automatically switches over to the trespasser who now becomes the new owner and shall be subject to existing third party rights (for example, easements). However, if at any time during the 12 years, the true owner has initiated proceedings against the person claiming adverse possession, or if the trespasser had acknowledged the title of the true owner, the time is said to stop at that moment.
Adverse Possession of a Registered Land
The concept of adverse possession seems to be in contradiction to the fact that a land should be registered with complete details of ownership. The amendment to LRA in 2002, introduced major changes in the process of recognising adverse possession of registered land. Under these amendments, a trespasser who has occupied the land for 10 years (instead of 12 years as in the case of unregistered land), can claim ownership of trespassed property and make an application to register himself as the proprietor of the property.
On receipt of the conveyancing solicitors’ application, the registered proprietor and other involved parties (for instance, the proprietor of a registered charge) would be informed. The true owner or any such person in receipt of this notice can claim an objection before the Registrar within a stipulated time. The trespasser shall not be given possession on such notice, unless one of the following conditions is met:
- It would be unreasonable not to do so, because there is such a situation that the registered proprietor cannot deny the claim of the trespasser and he ought to be registered.
- There exists some other reason where the applicant should be registered as a proprietor.
- The property is question is adjacent to the applicant’s property and the exact boundaries of both lands have not been determined under the Land Registry rules. For the past 10 years of adverse possession, the applicant or any other predecessor in title believes that the land belongs to him and the estate in the land was registered more than 12 months before the date of application.
When the trespasser’s application for registration is denied, the registered owner has two years to claim possession of property. If he does not do so, the trespasser can reapply for registration, wherein his proprietary right to the property shall be registered.
A trespasser who has been in adverse possession for the required period as on October 13th 2003 will be allowed to apply under the old rules.
sizePhoto courtesy: asianjournalusa
