Existing registered owners cannot also acquire title to land through adverse possession

Posted on
This case concerned a small piece of land which is part of Smith's Charity Kensington Estate. The land measures two metres across at its widest point and four metres long and is not large enough to park a car on, unless used in conjunction with adjoining land.

The appellant's property is at 29 Milner Street (No. 29) and title to it was first registered on 6 April 1904. The registered title plan included a triangle of paved land at the front of the building, which is the land in dispute.

The respondent's property is at 31 Milner Street (No. 31) and title to it was first registered in 1980. On registration, the Land Registry mistakenly included the disputed land in the title of No. 31, despite it already being included in the registered title of No. 29.

Shortly after, the respondent began to use the land and some of their adjoining land to park a car and erected a chain link fence around this area.

In October 2000, the Land Registry made a further mistake in that they excluded the disputed land from No. 29 when computerising the title. The appellant made an application on 8 August 2008 to rectify the register by excluding the disputed land from the title plan to No. 31.

This application was resisted on limitation grounds.

The respondent argued that due to having more than 12 years adverse possession of the disputed land by her predecessors, the appellant's right of action was statute barred. She further argued that she had acquired a possessory title to the disputed land and that rectification of the register by cancelling the mistaken inclusion of the disputed land in the title of No. 31 was not available to the appellant.

In April 2011, the Deputy Adjudicator to the Land Registry made an order refusing rectification, finding that the respondent had acquired possessory title to the disputed land, or, in the alternative, had an easement of parking on the land. An appeal to the High Court was made by the appellant, which was dismissed. The High Court agreed that the respondent had, via her predecessors in title, acquired possessory title to the disputed land.

The appellant appealed this decision to the Court of Appeal.

The appeal was allowed.

It was held that the appellant did not have a right of action against the respondent for the recovery of possession of the disputed land for putting up a chain link fence round the disputed land in July 1988 or for parking on it. It was further held that no right of action arose then or subsequently because there was no unlawful act of taking possession by the respondent because they were entitled in law, even as against other persons with a registered title to the disputed land, to go onto it and remain in possession of it.

Time did not begin to run against the appellant, nor did it begin to run in favour of the respondent, as their possession of the disputed land was referable to their registered title and was not unlawful or adverse within the meaning of the Limitation Act 1980. It was noted that the fact that the appellant had a right to apply for rectification of the register was irrelevant to the Limitation Act 1980. It was held that this Act does not apply to the statutory right to apply to rectify the land register.

The right to apply for rectification did not of itself give the appellant a right of action to recover possession of the disputed land from others who had a concurrent registered title to it.

This case has confirmed that an existing registered owner cannot acquire title to the same piece of land through adverse possession because the occupation of the land would not be lawful.

Therefore, rectification and indemnification are the only remedies available for mistakes arising from concurrent registration of land in two different titles. In these circumstances, time would not begin to run for the purpose of adverse possession until rectification had taken place.

The case finally notes that the Limitation Act 1980 does not apply to the right of rectification.