Manchester Conveyancing Solicitors | Ford Banks Irwin Solicitors - The Property Lawyers in Manchester for Transfer / Lease of Business Premises
Please note: Not to be used or relied upon without legal advice. These notes are for illustration purposes ONLY
continued from page 18 . . .
Land Registry response and registration
Class of title
Generally, where the application is in respect of unregistered Property, Land Registry will only register the squatter with an absolute title if they are satisfied that their adverse possession has barred the owner's title. Usually this will only be so where:
- Land Registry know what that title is, and
- Land Registry are satisfied that the owner has consented to, or could have no valid grounds for objecting to, the squatter being registered as proprietor of the Property
In any other case Land Registry will only register with a possessory title. And they will not register even with this title in cases of real doubt. In part this is because where the squatter remains in possession for 12 years, Land Registry may convert a possessory title to absolute title. it is also because Land Registry need to bear in mind the owner's rights. It would be wrong to put the owner to the inconvenience of making an application for alteration if the evidence was such to leave real doubts as to whether the squatter had satisfied the requirements set out in section: Adverse Possession - the essentials.
Where Land Registry complete an application under paragraph 18 of schedule 12 Land Registration Act 2002, they will register the squatter with the same class of title as the registered proprietor.
Protective and other entries
A squatter, not being a purchaser for value, is bound by all subsisting legal and equitable rights.
Where the owner's title has not been deduced, Land Registry will usually make a protective entry in respect of restrictive covenants and, in areas where they are common, rentcharges. The entry will be along the following lines:
"The Property is subject to such [restrictive covenants] and [rentcharge] as may have been imposed thereon or existed before [the date of first registration] and are still subsisting and capable of being enforced".
Land Registry will not, however, make a protective entry if they are satisfied, on the evidence available, that there is only a minimal risk that undisclosed restrictive covenants or rentcharges affect the Property.
Where registers of adjoining titles have the benefit of appurtenant easements over the Property being registered, Land Registry will enter notice of those easements in the register of the squatter's new title.
When Land Registry complete an application submitted by Conveyancing Solicitors and Property Lawyers under paragraph 18 of schedule 12 Land Registration Act 2003, they will either register the squatter as proprietor of the existing title if the application relates to the whole of the registered title, or, if it relates to part of an existing title, they will remove the Property from that title and register the squatter as proprietor under a new title number. In the latter case, Land Registry will bring forward the subjective entries onto the new title.
Charges / Mortgages
The squatter's title will not as a rule be subject to a Mortgage / Charge by the owner created after the start of the adverse possession. Where the adverse possession is of unregistered Property, the estate now being registered is the one that arose at the start of that adverse possession; at that point there was no charge so it cannot affect the squatter's Property and they are entitled to be registered free from it. Where the adverse possession was of registered Property, the right to be registered acquired or being acquired by the squatter is automatically an overriding interest and since 13 October 2003 the right to be registered has operated as an overriding interest where the squatter is in actual occupation.
If the owner's Charge / Mortgage precedes the adverse possession, time may start to run against the Mortgagee / Chargee at the same time as it starts to run against the owner of the Property, but only if the mortgage repayments cease with the adverse possession. Time will not start to run where there is a later mortgage repayment by the owner or squatter during the adverse possession. Of course, where the adverse possession is of only part of the Property mortgaged - perhaps of a piece of the garden to a house - it is likely that the owner will have continued to make the repayments. The squatter's title will then be subject to the mortgage.
. . . continued on page 20 (Manchester Conveyancing Solicitors Property Lawyers for Transfer or Lease of Business Premises 20)
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