The LR will then give notice to the existing registered proprietor who has 65 business days in which to respond. If the LR does not receive a reply in that time then the squatter will be registered as proprietor (free of any charges), but in practice it will nearly always be the case that the registered proprietor responds in time and then successfully sees off the squatter’s application.

That much is straightforward. However, these new rules do introduce a level of complication and difficulty into what otherwise might be minor conveyancing problems. For instance, consider the buyer who has spotted that there is a legal issue about part of the property that is not dealt with by the existing paper title. The seller is occupying that part of the land in good faith but does not have paper title to sell. The buyer now has a dilemma: to be sure of obtaining paper title the buyer may want the seller to assert his legal rights under the laws of adverse possession, but in so doing the seller will be alerting the legal owner (by means of the LR’s notice). The paper title holder will then have 65 business days to respond and will, presumably – assuming he is properly advised – take steps to recover possession. In other words, the risk in attempting to obtain ownership by adverse possession in this situation means that the seller (or buyer) may lose use of that piece of land altogether. As an alternative, the buyer might be persuaded to seek title indemnity insurance. However, should he get that insurance there will almost certainly be a requirement that he does not then seek to get paper title – even if he can prove occupation of that part of the land for the requisite time period. This is because the insurer, having issued cover, wants to let sleeping dogs lie and avoid notices being served by the LR. Thus, the end result is that the buyer is caught in a difficult situation; what he wants is paper title, but the very act of trying to obtain it may result in the loss of even the existing occupational rights.

There is one glimmer of hope. The transitional rules should be checked, because if the occupier has already accrued 12 years of possession before 13 October 2003, then he can use the old rules to gain title provided the application is made before 13 October 2006. Thus, if a client does not have paper title to all of the land he is occupying then it may be prudent to apply under the old rules before 2006. Otherwise, difficulties may well arise in the future.

One final point to make about the new adverse possession rules is that everything depends upon the registered proprietor being able to respond to the LR notice within 65 business days. As a result, it is now far more important than it used to be to make sure that addresses on the register are kept accurate and up-to-date. Failure to do this (or to advise clients of the need to do it) could have disastrous consequences. See article in [2004] 141 Property Law Journal 22. © Practical Lawyer