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dougal
Joined: 15 Jan 2005
Posts: 7184
Location: South Kent
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 Posted: Fri Jan 20, 06 9:38 pm Post subject: |
 
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| Cardinal Fang wrote: |
| Whilst Pye does relate to registered land, and LRA 2002, I would imagine... |
Hold on!
Pye relates to the treatment of registered land *before* the LRA 2002 took effect. The law on AP for registered land is different now. Its pretty unlikely that ownership of registered land would now change hands by simple AP unless the registered owner is unreachable via the address on the register.
And that should satisfy the ECHR's concern as to procedural unfairness.
| Cardinal Fang wrote: |
I would imagine that there is bound to be a challenge to the unregistered land position, just as soon as there is a valuable enough piece of land which has been registered as the result of unregistered adverse possession, to make it worthwhile for someone taking it through the courts.
I also suspect that the Land Registry are going to be very twitchy indeed until the recent developments bed in, and will be looking for almost any excuse (lack of exclusivity etc) to reject first registrations based upon adverse possession. |
Hmmm.
Its a reasonable supposition that someone might indeed *challenge* the unregistered land position.
However, I would not be nearly as confident that such a challenge would be successful.
And I think it it would not be correct to suggest that the Registry are currently particularly 'helpful' towards first registrations by AP claimants. They simply 'go by the book'. There's little discretion involved, as I understand the procedure.
As can be seen from reading the ECHR judgement (linked above), there was acceptance of the principle of a limitation period (para 63), (12 years being accepted as "relatively long" in Para 69), and acceptance of the "undoubted relevance and importance" to the public interests in the case of UNregistered land that "the reality of unopposed occupation of land and its legal ownership coincide" as well as the avoidance of 'stale claims' - which the Court held to be much less important to Pye's registered land (Para 65).
Given that it was only a 4/3 majority, and much was made of the procedural unfairness of the registered owner not being notified by the Land Registry in time to defend his title... I simply don't see any evidence that there is about to be a radical change in the law relating to AP and *un*registered land.
Indeed, I'd welcome being directed to any part of the relevant judgements that are construed as disapproving of AP in relation to *un*registered property.
If it is there, I haven't spotted it...
As the law stands *today*, AP against abandoned *un*registered land is perfectly viable.
My suggestion remains that "taking possession", in the least damaging way possible, is an excellent means of 'flushing out' an owner of *un*registered property who is otherwise untraceable. And should the paper owner not notice that you have taken possession for twelve years, then you should have a claim for ownership. That claim cannot succeed unless you have met the legal requirements for Adverse Possession - hence the need to ensure that if you do it, you are "doing it properly". |
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