The English Law on Adverse Possession: A Tale of Two Systems.

This paper discusses the divergence in the operation of the doctrine of adverse possession which the Land Registration Act 2002 brings about, resulting in a separate approach to registered and unregistered land. The Law Commission justified the new dichotomy by explaining that while adverse possession runs counter to the fundamental concept of indefeasibility which is a feature of registered title, its role in encouraging the owner of land to guard possession is fully compatible with the unregistered title system which is based on possession. It also noted that the doctrine plays a vital role in the investigation of title to unregistered land and concluded that making the requirements for adverse possession of unregistered land too demanding could weaken the security of title to that land. Section II of this paper investigates claims that the doctrine of adverse possession is at odds with principles of title registration. Section III examines the role played by possession and adverse possession in the unregistered conveyancing system. It is submitted that the reasons adduced by the Law Commission for restricting the reforms of the doctrine to registered land do not hold up under scrutiny. Once this is acknowledged, it becomes necessary to consider whether the reforms could be extended to unregistered land in a manner which would not raise concerns about the functionality of the unregistered conveyancing system or the reliability of the Land Register once first registration has occurred. The marketable title legislation which operates in the US illustrates how title defects that may not be revealed by a standard investigation of title may be eliminated without reliance on the doctrine of adverse possession. If England were to borrow the basic premise behind the US approach, requiring the registration of certain older interests in order to preserve their validity, an extension of the veto system to unregistered owners could be contemplated. The paper concludes by discussing the advantages of introducing such reform and suggesting solutions for certain practical difficulties which it would raise. [ABSTRACT FROM AUTHOR]