CLAJ Adverse Possession Report

PP 2021/0106

CONSTITUTIONAL AND LEGAL AFFAIRS AND JUSTICE COMMITTEE

SECOND REPORT FOR THE SESSION 2020-21

Adverse Possession

CONSTITUTIONAL AND LEGAL AFFAIRS AND JUSTICE COMMITTEE SECOND REPORT FOR THE SESSION 2020-21 ADVERSE POSSESSION

There shall be a Committee on Justice, Constitutional and Legal Affairs which shall be a Standing Committees of the Court. It shall be entitled to take evidence from witnesses and to report on matters as they affect the Island relating to the administration of justice, legal services, the work of the Attorney General and constitutional issues. It may also hold joint sittings with other Committees for deliberative purposes or to take evidence.

The Committee shall have: a) a Chairman elected by Tynwald, b) two other Members.

Members of Tynwald shall not be eligible for membership of the Committee, if, for the time being, they hold any of the following offices: President of Tynwald, member of the Council of Ministers, Attorney General, member of the Treasury Department referred to in section 1(2)(b) of the Government Departments Act 1987. The Committee shall be authorised to require the attendance of Ministers for the purpose of assisting the Committee.

The powers, privileges and immunities relating to the work of a committee of Tynwald include those conferred by the Tynwald Proceedings Act 1876, the Privileges of Tynwald (Publications) Act 1973, the Tynwald Proceedings Act 1984, and by the Standing Orders of Tynwald Court.

Committee Membership Mrs J P Poole-Wilson MLC (Chairman) Mr L L Hooper MHK (Ramsey) Mr C R Robertshaw MHK (Douglas East)

Copies of this Report may be obtained from the Tynwald Library, Legislative Buildings, Finch Road, Douglas, IM1 3PW (Tel: 01624 685520) or may be consulted at www.tynwald.org.im

All correspondence with regard to this Report should be addressed to the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW.

IN TYNWALD

5th July 2019

To the Honourable Members of the Tynwald Court

The humble petition of Mark Jason Cleator Lyonville Stuggadhoo Marown Isle of Man IM4 2AJ

Sheweth that Whereas the Manx Government, in failing to adopt The Land Registration Act 2002 as enacted by the UK Government has enabled vexatious and regular application of the law known as Adverse Possession (the occupation of land to which another person has title with the intention of possessing it as one's own), resulting in the legalised theft of land. As demonstrated below, in 1984 the Isle of Man Attorney General concluded that the limitation period for land applies equally to land which is the subject of a trust. The Manx Government, by accepting this opinion without performing further checks as to wider implications (through considering the position of the adjacent Isle or any of the other common law jurisdictions) did fail to ensure the fairness of the relevant Acts of Tynwald. An Act of Tynwald, which enables a person to claim Adverse Possession of land held under a trust, against a life tenant who is not factually in possession of the land, is simply wrong. Similarly, an Act of Tynwald which enables the confiscation of land held in trust on behalf of children or others using Adverse Possession, by implying that the limitation period has run even before the children or others had actually taken possession of their property is also clearly injudicious and in want of reform. The Isle of Man Limitation Act 1984 has allowed just such situations to arise, and this has enabled the theft of property from rightful owners or their heirs and assigns. It is not possible to protect the assets and interests of said persons and consequentially their rightful property is stolen with the Isle of Man Government's agreement and consent. The failure of the Isle of Man Government to ensure the protection of the Manx people has and will continue to lead to property of rightful owners being acquired by others through the use of such Acts of Tynwald and the Manx Courts. It is also the case that as the UK law, which prevents the adverse possession of land which is held in trust does not apply on the Isle of Man, such omission is causing clear and continuous hardship. In addition, Article 1, Protocol 1 of the European Court of Human Rights states that "every person has the right to the peaceful enjoyment of their property". The omissions of the Isle of Man Limitation Act 1984 allows property to be taken away from rightful owners, thereby preventing any aforementioned peaceful enjoyment. 2

The Differences Between English and Manx Property Law in Relation to Adverse Possession The Land Registration Act 2002 (UK) paragraph 12a reads as follows: "A person is not to be regarded as being in adverse possession of an estate for the purposes of this Schedule at any time when the estate is subject to a trust..." In the UK no adverse possession can be claimed whilst a life tenant was in occupation and the ultimate beneficial owner had not yet come into possession. This position is covered by section 18 of the Limitation Act 1980 (of Parliament) which makes this position clear and intentional. The above rules were not introduced in the Isle of Man to the Manx Limitation Act of 1984. On the contrary, section 18 of that Act states: "The right of action to recover land shall be treated as accruing to a person entitled to an equitable interest in the same manner, and from the same date, as it would accrue if they held a legal interest." Therefore, the position in England and Wales is significantly different from that here, Adverse Possession may run from any time, even if there is a trustee or life tenant in control of the said land that only comes into possession as its beneficial owner at a later date. It is clear that this is the intended interpretation of section 18 (of the Manx Act) when looking at the Hansard of the Legislative Council on 10 April 1984 during the clauses stage. The then Attorney General, discussing adverse possession generally, stated: `It should be noted that in Manx law future estates, that is, the right which a person might have to inherit property following a life interest, are barred after 21 year's possession, except as against the Crown. This clause makes no special provision for future interests in land. In other words, translating that into very simple terms, f a person had been in occupation ofland for 21 years without permission of the owner of the land, then their title becomes absolute and any one who had any claims to any interest in that land loses them. ' The Attorney General went on to state that `Clause 18 provides that the limitation periodfor land applies equally to interest in land which is the subject to trusts'. In saying this, the Attorney General advised the Council that it was acceptable for Manx Law to run differently to the safe and carefully considered position adopted under English law. The principle of Adverse Possession allows land to be claimed by a squatter, under certain strict circumstances. The UK rule, discussed in detail at the Lords Hansard text of 19th July 2001, is designed to ensure that those who have no control over land that they will ultimately own cannot lose entitlement whilst it is held in trust for them. The Isle of Man offers no such protection, and therefore the Adverse Possession rule is wide open to abuse generally on the Island, and indeed is being used by wealthy individuals in a way that was presumably never intended. Adverse possession regulations should at the very least match those in the UK and, where any ambiguity is identified, title should always remain with the paper owner. and Whereas also Legal expenses - in particular once a case is heard before a court - are extremely high. It has become common practice for the art of filibustering and the overwhelming of the courts and others to be exercised by a wealthy party, thus effectively exponentially increasing costs. This practice ultimately leads to considerable hardship on the side of the less wealthy party, to a point where it is not possible to protect himself against further litigation if money runs out, [Signed by Mark Jason Cleator]

Table of Contents

I. THE COMMITTEE AND THE INQUIRY ...... 1

THE INQUIRY 1

SUMMARY OF GRIEVANCE 2

II. THE LAW OF ADVERSE POSSESSION ...... 3

OVERVIEW OF THE CURRENT LAW 3

The Isle of Man and Unregistered Land in England and Wales...... 3

Registered Land in England and Wales...... 5

Proposed Changes for the Isle of Man ...... 8

Trust Land ...... 10

III. REGISTRATION OF LAND...... 14

INCREASING REGISTRATION 17

IV. JUSTIFICATION AND HUMAN RIGHTS COMPLIANCE ...... 20

V. ISSUES OF COST...... 22

COST OF LAND TRANSACTIONS 22

COST OF PROCEEDINGS 24

VI. QUALITY OF LEGAL SERVICES ...... 27

REGULATION AND COMPLAINTS 27

EDUCATION AND TRAINING 28

VII. CONSOLIDATED LIST OF CONCLUSIONS AND RECOMMENDATIONS...... 29

ANNEX: EXTRACTS OF MANX LEGISLATION...... 33

1: LAND REGISTRATION ACT 1982 35

2: LIMITATION ACT 1984 36

3: THE LAND REGISTRY RULES 2000 37

4: THEFT ACT 1981 40

5: HUMAN RIGHTS ACT 2001 42

6: HIGH COURT ACT 1991 43

7: ADVOCATES DISCIPLINARY RULES 2017 45 ORAL EVIDENCE ...... 47

20TH JANUARY 2020: EVIDENCE OF MR MARK CLEATOR, PETITIONER 49

24TH JULY 2020: EVIDENCE OF MR NICK ARCULUS, LAND REGISTRAR 71

WRITTEN EVIDENCE ...... 99

APPENDIX 1: 20TH JANUARY 2020 STATEMENT BY MR MARK CLEATOR, PETITIONER 101

APPENDIX 2: 20TH MARCH 2020 WRITTEN SUBMISSION OF MR NICK ARCULUS, LAND REGISTRAR 113

APPENDIX 3: 15TH FEBRUARY 2021 FURTHER WRITTEN SUBMISSION OF MR NICK ARCULUS, LAND REGISTRAR 139

APPENDIX 4: HM LAND REGISTRY NOTICE TO THE REGISTRAR IN RESPECT OF ADVERSE POSSESSION APPLICATION (NAP FORM) 145 To: The Hon Stephen C Rodan OBE MLC, President of Tynwald,

and the Hon Council and Keys in Tynwald assembled

CONSTITUTIONAL AND LEGAL AFFAIRS AND JUSTICE COMMITTEE SECOND REPORT FOR THE SESSION 2020-21 ADVERSE POSSESSION

I. THE COMMITTEE AND THE INQUIRY

The Inquiry

1. This inquiry was initiated by the referral of a Petition for Redress of Grievance by Mr Mark Jason Cleator, as resolved by Tynwald Court at its sitting on 19th November 2019:

That the Petition for Redress of Mark Jason Cleator presented at St John’s on 5th July 2019 in relation to the law of adverse possession stand referred to the Constitutional, Legal Affairs and Justice Committee.

2. We subsequently considered the issues raised in Mr Cleator’s petition, as well as other matters in relation to adverse possession more generally, at a number of our regularly scheduled meetings. We heard evidence in public on two occasions: once from Mr Cleator and once from Land Registrar Mr Nick Arculus. Transcripts from both of these hearings are reproduced at the end of this report.

3. In addition to the oral evidence hearings, we are grateful to have received written submissions and supporting documents from both Mr Cleator and Mr Arculus. Those documents which are pertinent to the overall policy and legal structure of

1 the matter in question have been published in the appendices of this report. Those documents which relate solely to individual cases have been excluded from publication in order to protect any sensitive and personal information and so as not to prejudice any potential future legal proceedings. These documents will be made available upon request for inspection in the Tynwald Library.

4. Given the complex nature of this specialist area of the law, we did not issue a general public call for evidence. However, we received a small number of written submissions from members of the public, to whom we are grateful for sharing their experiences in navigating claims of adverse possession. These submissions have not been published, as they relate to individual cases.

Summary of Grievance

5. In presenting his Petition for Redress of Grievance, Mr Cleator sought review and reform of the laws governing rights to title of land in instances of adverse possession, the monitoring of the questionable conduct of litigators, and the distribution of financial burden in legal proceedings.

6. In a written statement, building upon the prayer of his petition, Mr Cleator presented the core areas of his grievance. These include the relevance of adverse possession in modern times, the applicability of such claims in respect of land which is held on trust, the compliance of adverse possession with human rights, the cost of legal proceedings alongside the principle of equality of arms, and the conduct of legal professionals throughout proceedings.1

7. Whilst we bore Mr Cleator’s grievances in mind throughout the duration of this inquiry, it is important to note that any conclusions and recommendations are the result of careful consideration of the wider policy issues and legal structures in respect of the matters in question. It is not within the powers of this Committee to comment on, nor to seek influence over, the outcome of any individual case.

1 Appendix 1

2 II. THE LAW OF ADVERSE POSSESSION

Overview of the Current Law

The Isle of Man and Unregistered Land in England and Wales

8. Adverse possession, commonly referred to as “squatters’ rights”, is a long- standing feature of land law whereby a trespasser has the ability to become the title owner of land upon establishing the core elements of factual possession and intention to possess over the course of a specific timeframe and whereby the title of any former owner is extinguished.

9. In his written submission, Mr Arculus explained how this may successfully be achieved:

This may be achieved by, for example, taking possession of property without force, without secrecy, and without permission for a certain amount of time until such act of occupation is recognised at law as having created for the occupier a greater right to continue occupation and claim property in land against any other. A second stage is that the former proprietor’s rights are terminated against the possessor and the world. Thus the act of adverse possession eventually generates an unimpeachable lawful title that cannot be challenged by a former owner.2

10. Provisions in respect of the matter of adverse possession in the Isle of Man are predominantly contained within the Land Registration Act 1982 and the Limitation Act 1984. Extracts of the relevant sections of these Acts can be found in the annex to this report for ease of reference.3 Provisions in respect of adverse possession in England and Wales are largely held within the Land Registration Act 2002 and the Limitation Act 1980, direct links to which can be found in the footnotes where referenced.

11. Unlike in England and Wales, the principles behind claiming land by adverse possession are the same in the Isle of Man for unregistered land as they are for registered land. Mr Arculus explained in his written submission that:

2 Appendix 2, para. 1.1.2. 3 Annex: Land Registration Act 1982; Limitation Act 1984

3 The methodology of acquiring title by adverse possession is the same as regard[s] unregistered land in England as it is to registered and unregistered land in the Isle of Man.4

12. In both jurisdictions, the core elements of factual possession, intent to possess the land, and possession without the owner’s consent must all be established to have occurred throughout the duration of a specific time period, as provided for by these jurisdictions’ respective Limitation Period Acts, where applicable.

13. In the Isle of Man, section 48(1) of the Land Registration Act 1982 provides that “the Limitation Act 1984 shall apply to registered land as it applies to unregistered land”.5 It follows, therefore, that claims of adverse possession over both registered and unregistered land are subject to a 21-year limitation period:

16 Time limit for actions to recover land

(1) No action shall be brought by any person to recover any land after the expiration of 21 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.6

14. In England and Wales, the limitation period in respect of unregistered land is considerably shorter, requiring a minimum of only 12 years for a claim of adverse possession to be made:

15 Time limit for actions to recover land.

(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.7

15. Whilst explaining the differences between the limitation periods of these two jurisdictions, Mr Arculus argued that, as a result of the longer limitation period, it is both harder to lose and to acquire land by means of adverse possession in the Isle of Man than it is in England and Wales.8 We agree that, when comparing the

4 Appendix 2, para. 3.1. 5 Annex: Land Registration Act 1982, s.48(1) 6 Annex: Limitation Act 1984, s.16(1) 7 Limitation Act 1980, s.15(1) 8 Appendix 2, para. 3.1.

4 requirements for a claim of adverse possession of unregistered land in England and Wales with that of both registered and unregistered land in the Isle of Man, it is objectively more difficult to succeed with such a claim in the Island.

16. However, the requirements in respect of registered land in England and Wales are different and present a system that places significant barriers in front of those hoping to claim title to land by adverse possession.

Registered Land in England and Wales

17. The introduction of the Land Registration Act 2002 in England and Wales removed the applicability of the Limitation Act 1980 to claims of adverse possession over registered land. Instead, Schedule 6 of the Land Registration Act 2002 provides that:

1 (1) [Subject to paragraph 16,] a person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application.9

18. Upon receipt of such an application for transfer of ownership, the registrar must give notice in writing to the following interested parties:

(a) the proprietor of the estate to which the application relates,

(b) the proprietor of any registered charge on the estate,

(d) any person who is registered in accordance with rules as a person to be notified under this paragraph, and

(e) such other persons as rules may provide.10

19. Under the Land Registration Rules 2003 of England and Wales, any person to whom notice is given of such an application will be granted 65 business days in order to respond to the application for transfer of ownership:

9 Land Registration Act 2002, Schedule 6, para. 1(1) 10 Land Registration Act 2002, Schedule 6, para. 2(1)

5 189. The period for the purpose of paragraph 3(2) of Schedule 6 to the Act is the period ending at 12 noon on the sixty-fifth business day after the date of issue of the notice.11

20. A person to whom such notice has been given has four different options for how to respond. They may either consent to the application, object to the application, give counter notice to the application, or they may both object and give counter notice to the application.

21. In order to object to an application for transfer of ownership, a written submission must be delivered to the registrar detailing the grounds for the objection.12 A common ground for objection may be, for example, that the applicant has not in fact fulfilled the essential requirements for a claim of adverse possession over the land in question. In contrast to giving counter notice, anyone may object to an application, irrespective of whether they have received notice from the registrar.13 However, it is important to note that, in the case of a well-founded objection, the registrar is only able to invite the applicant and the objector to reach an agreement between themselves. If no agreement can be reached, the registrar must refer the matter to a tribunal.14

22. Conversely, in the case of a counter notice, the registrar is largely able to determine the application for transfer of ownership without referral. In order to give counter notice, the person to whom notice has been issued must complete the ‘NAP’ form, a copy of which is automatically provided alongside the initial notice. A copy of the NAP form has been appended to this report for reference.15 Upon receipt of such counter notice, the registrar will be required to handle the application in accordance with paragraph 5 of Schedule 6 to the Land Registration Act 2002.

23. This means that the application for transfer of ownership will only be considered if the applicant meets at least one of three specific and exceptional conditions. Such conditions include, for example, a scenario in which it would be deemed

11 The Land Registration Rules 2003, rule 189 12 The Land Registration Rules 2003, rule 19(1) 13 Land Registration Act 2002, s.73(1) 14 Land Registration Act 2002, ss.73(5)-(7) 15 Appendix 4

6 unconscionable to dispossess the applicant of the land and “circumstances are such that the applicant ought to be registered as the proprietor of the estate”.16 However, applicants must have indicated, with supporting documents, within their initial application that at least one of these conditions is met and that they wish to rely on that fact.17 If no such indication is made, the application will be rejected upon receipt of counter notice and the registered owner will retain the title to the land.

24. Where the applicant has indicated reliance on any such condition, the registrar will consider the supporting documents and facts in order to determine whether a good case for such reliance has been made. Should the applicant’s reliance be well- founded, the person who gave counter notice will be informed and will be able to object if they do not agree that the relevant conditions have indeed been met. At this stage, the registrar would be obliged to treat the matter in the same manner as an objection at first instance, as discussed above.

25. In the event that the application to transfer ownership is rejected, paragraph 6 of Schedule 6 enables the rejected applicant to reapply after a further period of two years if adverse possession of the land in question has been maintained:

6 (1) Where a person’s application under paragraph 1 is rejected, he may make a further application to be registered as the proprietor of the estate if he is in adverse possession of the estate from the date of the application until the last day of the period of two years beginning with the date of its rejection.18

26. Upon receipt of such further application to transfer ownership, the registrar has the discretion to again issue notice to relevant parties before processing the application.19 Should such notice be given, a default period of 15 business days will apply for the submission of an objection.20

27. In order to prevent such further application from succeeding, or from being submitted in the first place, the registered owner, or any person to whom notice

16 Land Registration Act 2002, Schedule 6, para. 5(2) 17 The Land Registration Rules 2003, rule 188(2)(g) 18 Land Registration Act 2002, Schedule 6, para. 6(1) 19 The Land Registration Rules 2003, rule 17 20 The Land Registration Rules 2003, rule 197(2)

7 of the initial application was given, must take steps to reclaim possession of the land in question within the two years following the rejection of the initial application.21 This can be done, for example, by seeking an eviction order, commencing legal proceedings to reclaim possession, or by legally defining the relationship with the party claiming adverse possession, such as one of landlord and tenant.

28. The combination of these provisions results, therefore, in a situation in which the registered owner would have to demonstrate a complete lack of concern about the prospect of losing the title to their land to the extent that they either do not object or give counter notice to the initial application after 10 years’ adverse possession, or they take no action over the course of the following two-year period to reclaim possession of the land.

29. This was confirmed in no uncertain terms by Mr Arculus during our oral evidence hearing:

You have to be asleep, or not to have kept your service address up to date, because you genuinely do not care about losing possession of the land – and there are people for whom that … It does occasionally occur, but I say ‘virtually impossible’ because if anybody who is in the slightest bit paying attention to their estate and has got the correct service address with the Land Registry – which is, again, the responsibility of the owner there – is going to be put on notice and has to really actively decide not to take action for that title then to be lost.22

30. It is undeniable after considering the procedures outlined above that registered land owners in England and Wales are afforded far greater protection over the title to their land than any land owners in the Isle of Man when faced with claims of adverse possession.

Proposed Changes for the Isle of Man

31. The Land Registry in the Isle of Man does currently operate with a system of notification when it receives applications for the registration of a title as a result of an adverse possession claim.23 The time limit for response following notification

21 Land Registration Act 2002, Schedule 6, para. 6(2) 22 Q46, lines 451-456 23 Appendix 2, para. 2.9.

8 currently stands at 21 days.24 However, the current system lacks the clear structure and statutory footing enjoyed by the system for registered land in England and Wales.

32. In order to offer greater protection to registered land owners in the Island and to add clarity to the application, notification and response procedures in respect of adverse possession claims, we propose that the Land Registration Act 1982 be amended to disapply the Limitation Act 1984 in respect of registered land subject to an adverse possession claim and to introduce provisions that replicate the procedures in operation in England and Wales.

33. Adopting such provisions brings with it the benefits of being able to more easily refer to and, where appropriate, apply English case law to this relatively infrequently occurring and specialised area of the law. Furthermore, introducing a system that offers such a considerable degree of protection should act as a significant incentive for voluntary registration of land. We appreciate that it will nonetheless remain problematic to identify and give notice to all relevant parties in respect of any unregistered land that becomes the subject of an adverse possession claim. As explained by Mr Arculus in our oral evidence hearing:

It is obviously difficult for us to identify that so we require newspaper adverts, notices to go up on the site and notices to be sent to neighbours. There is a whole range of different devices that we can do, but obviously that takes time.25

34. It would of course be preferable for land owners to register their land and ensure that their contact details are kept current with the Land Registry, ensuring that they will be directly notified in the event that any application in respect of their land is lodged. However, in recognition of the fact that significant masses of land remain unregistered, and in order to alleviate the burden that attempts at notification currently place on the Registry, we would welcome the introduction of a Government Gazette as a central public notification point, as described by Mr Arculus in his written submission.26

24 Q37, line 301 25 Q37, lines 298-301 26 Appendix 2, para. 12.2.

9 Conclusion

Directly sending written notification to relevant parties upon receipt of a claim of adverse possession is an effective mechanism of offering registered land owners a greater degree of security.

Recommendation 1

That the Land Registration Act 1982 be amended to introduce the same application, notification and response procedures as contained in the Land Registration Act 2002 of England and Wales in respect of adverse possession claims over registered land.

Trust Land

35. An issue raised by Mr Cleator which has caused him particular concern is the interaction of the law of adverse possession with land which is held on trust. Adverse possession operates differently in respect of land held on trust in the Isle of Man from in England and Wales; the most notable differences are in relation to which parties are able to sue for recovery of the land at various stages and which limitation period applies for claims of adverse possession in respect of the interests held by the beneficiaries.

36. In the Isle of Man, it is of no relevance to the limitation period for a claim of adverse possession if the land in question is subject to a trust with beneficiaries who have not yet obtained possessory interest, as provided for by section 18 of the Limitation Act 1984:

18 Land held on trust

(1) Subject to section 21(1) and (2), the provisions of this Act shall apply to equitable interests in land, including interests in the proceeds of the sale of land held upon trust for sale, as they apply to legal estates.

(2) Accordingly a right of action to recover the land shall, for the purposes of this Act but not otherwise, be treated as accruing to a person entitled to such an equitable interest in the like manner and circumstances, and on the same date, as it would accrue if his interest were a legal estate in the land (and any relevant provision of Part I of Schedule 1 shall apply in any such case accordingly).27

27 Annex: Limitation Act 1984, s.18

10 37. As explained by Mr Arculus in his written submission, it is therefore possible for a claim of adverse possession to bar successive interests in land, without regard to whether such a party has a legal interest:

The specific technical point is that in the Isle of Man the 21 year period of limitation runs against all people entitled to an interest in land (whether or not this is an interest in possession or otherwise)...28

38. This differs considerably from the system in England and Wales, where a claim of adverse possession is not possible unless all beneficiaries have an interest in possession over the land in question. This is explicitly provided for in Schedule 6 to the Land Registration Act 2002:

12. A person is not to be regarded as being in adverse possession of an estate for the purposes of this Schedule at any time when the estate is subject to a trust, unless the interest of each of the beneficiaries in the estate is an interest in possession.29

39. This is not to say, however, that adverse possession is incapable of accruing whilst the land is held on trust. It simply adds an additional step in the process of an adverse possession claim in order to prevent unjust interference with successive interests. Section 15 of the UK’s Limitation Act 1980 provides that:

(2) Subject to the following provisions of this section, where—

(a) the estate or interest claimed was an estate or interest in reversion or remainder or any other future estate or interest and the right of action to recover the land accrued on the date on which the estate or interest fell into possession by the determination of the preceding estate or interest; and

(b) the person entitled to the preceding estate or interest (not being a term of years absolute) was not in possession of the land on that date;

no action shall be brought by the person entitled to the succeeding estate or interest after the expiration of twelve years from the date on which the right of action accrued to the person entitled to the preceding estate or

28 Appendix 2, para. 4.3. and appendix to question 4 29 Land Registration Act 2002, Schedule 6, para. 12

11 interest or six years from the date on which the right of action accrued to the person entitled to the succeeding estate or interest, whichever period last expires.30

40. This additional step ensures that adverse possession can only take place once the relevant beneficiaries have obtained possessory interest in the land. Furthermore, it ensures that the relevant beneficiaries have a minimum of six years following inheritance of possessory interest in order to bring an action of recovery. Only once those six years have passed, or the ordinarily required 12 years have passed, whichever of the two be the latest, can a claim of adverse possession be made.

41. As explained by Mr Arculus in an illustrative example in his written submission, in England and Wales, only those with possessory interest are able to sue for recovery of the land in their own rights. In the Isle of Man, however, any successive interest holder is capable of bringing an action at any point. This allows, therefore, a period of 21 years during which any interest holder is capable of suing in order to protect the land in which they will eventually be entitled to possession.31

42. Mr Arculus elaborated on this point in his additional written submission:

In the Isle of Man a party with a successive interest (a beneficiary or remainderman) has a right of action in addition to the party with a right of immediate possession. If successful, this might lead a party being successful in obtaining a possessory title against the party notionally with an interest in possession but it would be a qualified title terminating when the successful successive interest holder’s right to possession crystalises e.g. Land is held on trust for A for life and thereupon for B absolutely. C could acquire possession against A but B, if he has successfully brought an action for the recovery of land within the 21 year limitation period, will be entitled to the property on A’s death even if A’s interest has been extinguished by C’s act of possession.32

43. In response to the question of whether he would recommend any reforms in respect of the Limitation Act 1984 to improve the protection for owners of unregistered land, Mr Arculus concluded by stating:

30 Limitation Act 1980, s.15(2) 31 Appendix 2, paras 4.4.-4.7. 32 Appendix 3, para. 2.1.

12 I would not recommend changes to the Limitation Act to create technical obstacles in the acquisition of possession adverse to interests held on trust because I believe these risks to be better and more efficiently protected in the Isle of Man than in comparator jurisdictions.33

44. Whilst we see clear benefits in aspects of the system that is currently in use in England and Wales, we agree that the combination of the lengthier limitation period of 21 years and the ability of all interest holders to bring action at any time within that period affords beneficiaries in the Isle of Man sufficient protection against the risk of loss of land to claims of adverse possession.

45. Nonetheless, it is important to note that even greater protection would be afforded to any beneficiaries of land if that land were to be registered. Registration would ensure that trustees, provided they do not neglect their duties, would have contact details on the register, ensuring that the Land Registry would be able to contact them directly in order to draw their attention to any claims of adverse possession.

46. Furthermore, registration would become an even greater safeguard if our proposed legislative changes in respect of claims over registered land were to be introduced. Similarly to how a registered land owner would have to demonstrate serious disregard for their land, a trustee would have to demonstrate severe neglect of their duties in order to allow a claim of adverse possession to succeed.

Conclusion

The current provisions of the Limitation Act 1984 in respect of claims against land held on trust offer sufficient protection to beneficiaries.

Conclusion

Registration of land is key to ensuring further protection to beneficiaries.

33 Appendix 2, para. 12.10.

13 III. REGISTRATION OF LAND

47. As stated above, the Isle of Man, like England and Wales, currently operates with a dual system of both registered and unregistered land. The system of land registration was introduced in both jurisdictions for largely the same purpose of offering clear evidence of title and facilitating land transactions, thereby also reducing the number of fraudulent transactions.

48. Mr Arculus explained why registered land was of such great benefit in comparison to unregistered land in his written submission:

The basic problem with unregistered title is that it is relative and it is of a quite simply different quality to registered land. It is customary freehold tenure as opposed to title absolute.

Deemster Cain in his judgement in re Kenyon summed up the relative difference between unregistered and registered land ownership in the following terms:

“The system of registration of title under the Land Registration Act [then in an advance state of preparation] will… provide for purchasers of land a guarantee that what they believe they have bought, they will in fact own. Unfortunately, the present system of conveyancing cannot provide that guarantee. This case illustrates the defects of the present [unregistered] system.”34

49. We agree that the old system of unregistered land is largely incapable of providing sound, indisputable assurances as to the ownership of land and that the system of registration should continue to be encouraged and presented as a highly beneficial project. We are aware that some consider the registration system to be burdensome and, at times, capable of inciting significant contention. However, as Mr Arculus explained:

The act of registration may draw out pre-existing challenges but it does not create the disputes. The process aims to resolve them in a cost efficient, timely and just manner.35

34 Appendix 2, paras 12.3.-12.5. 35 Appendix 2, para. 2.5.

14 50. When we asked why some land owners appeared hesitant to register their land, Mr Arculus advised that:

There is a perception that the act of requiring people to register land creates a greater burden on the advocate acting for them, which has a knock-on impact on charges. To my mind, for technical reasons, the burden to be satisfied in registration is actually lower than a prudent advocate acting for a purchaser should be trying to demonstrate.36

51. We recognise that, for advocates, undertaking the process of registering land is a complex one which requires thorough due diligence and attention to detail in order to ensure, for example, that boundaries are recorded accurately and that existing interests are taken into consideration. Equally, however, we note that similar efforts are required for any transaction concerning unregistered land.

52. The only significant difference is that registering land ultimately requires the submission of an application. We note that the Land Registry Rules 2000 list a number of formalities that must be complied with and a series of documents that must be submitted with the application.37 Some of these requirements may necessitate additional input by advocates, the extent of which will vary according to the features of the land in question.

53. In order to ensure that the registration process captures information as accurately as possible and that the process of applying is no more burdensome for an advocate than any transaction concerning unregistered land, we propose that the requirements of the application procedure be reviewed. Consideration should be given to any changes that could improve the process to enable greater consistency, accuracy and efficiency, thereby also making voluntary first registration a more enticing prospect.

54. Despite the additional effort, the key factor remains that this initial process of registering land must only be completed once, allowing future transactions to be less burdensome whilst being afforded greater security. Addressing the concern as to what this would mean for the legal profession in the land law sector, Mr Arculus reassured that:

36 Q39, lines 324-327 37 Annex: The Land Registry Rules 2000, rule 17

15 That is not to say that going forward there is no place for advocates in the conveyancing process, because what they are doing is a lot more than just looking at the title – they are also trying to find out all those interests that do not appear on the register of title itself. So, for example, the question of boundaries that we do not guarantee, it still remains incumbent on a prudent purchaser to satisfy themselves as to that point.38

55. Mr Arculus made clear his opinion that there is no greater protection for land and titles than that which is afforded an owner by registration:

The greatest protection that an individual can obtain to safeguard their rights and their title is to voluntarily adopt registration. There is no question about that in my mind.39

56. We agree that the registration of land offers a clear and substantial benefit to both present and future owners by granting the security of absolute title and by resolving disputes that occur as a result of potentially generations of erroneous title deeds.

57. Whilst we welcome the continued development and growth of the register, it is clear that there is yet greater potential to develop a wider system capable of capturing more useful information in respect of land. We asked Mr Arculus whether more could be added to the current system:

So more could be done, if I am following you correctly, to make it easier for the individual to discover everything the Government holds about land in one simple go. [...] But we are a very long way off from that at the moment.

The Land Registry has endeavoured to make certain steps towards that. So if you look at our Title Locator product we also have a few other layers that you can look at – the historic maps aerial imagery. It would be nice if a product – and whether it is Land Registry-led or whether it is GTS-led, or DOI-led – it is not really for me. It would be possible to produce the sort of land information system that members of the public or conveyancers could use to find out exactly, just to know more about the title they hold to land.40

38 Q40, lines 340-348 39 Q79, lines 1019-1021 40 Q41, lines 359-368

16 58. We acknowledge that the development of such a system will take time and considerable collaboration between the Registry and relevant Government bodies; however, this highly-valuable resource should be developed with such clear expansions and additions in mind, even if only very gradually, so as to ensure an ultimate outcome that is comprehensive and fit-for-purpose.

Conclusion

The process of registering land should be no more burdensome for an advocate than preparing documentation for any other land transaction.

Conclusion

An uptake in the registration of land will not remove the need for the professional services of an advocate in the conveyancing process.

Conclusion

Registration of land provides an effective solution to many difficulties and disputes arising from unclear title deeds and ownership status.

Recommendation 2

That the requirements of the application process for the registration of land be reviewed with a focus on improvements that could facilitate the consistency, accuracy, efficiency and appeal of first registration.

Recommendation 3

That a central and collaborative online platform be developed which is capable of capturing and granting public access to a wide range of information in relation to land, including about local planning applications or developments which might affect the land’s value or use.

Increasing Registration

59. It is evident that registration of land is highly favourable and that it can offer land owners greater security in their titles. However, there are currently too few triggers for compulsory registration of land in the Isle of Man, with the only real trigger being sale for value. In our oral evidence hearing, Mr Arculus stated that:

17 There are certain gaps to registration at the moment that mean, with the existing triggers in place, we are in all likelihood never going to complete registration [...] of the whole estate.41

60. When comparing the Island’s trigger points for compulsory registration with those of the other Land Registries of the British Isles, it is clear that the rate of land registration could be significantly increased with the introduction of further trigger points. In Mr Arculus’s follow-up written submission, a table of comparison demonstrates that, whilst the Island is largely on a par with Ireland and Northern Ireland, England and Wales and Scotland have significantly more compulsory triggers.

61. Mr Arculus identified the following potential trigger points as those which would be most likely to improve the rate of completion of the Island’s register:

 Conveyance not on sale (including appointment of new trustees)

 Gift on marriage

 Assent (probate)

 First charge

 Freehold on registration of a lease42

62. He also noted that lowering the minimum lease term for compulsory registration could be a further point for consideration, adding, however, that “this is understood to be unwelcome amongst the property profession”.43 At present it only becomes compulsory to register once the lease term surpasses 21 years. In Scotland, the minimum term currently stands at 20 years, while England and Wales present the shortest minimum lease term of 7 years, which was reduced from 21 years with the introduction of the Land Registration Act 2002.44

63. Mr Arculus advised that Government land and agricultural land currently form the largest classes of unregistered land in the Isle of Man. He suggests that the availability of Agricultural Payments could be made contingent on the registration

41 Q34, lines 248-250 42 Appendix 3, para. 1.2. 43 Appendix 3, para. 1.4. 44 Appendix 3, para. 1.2.; Land Registration Act 2002, s.4

18 of the land in question; a provision which, in Scotland, had “the effect of obtaining almost universal registration of agricultural land on a voluntary basis”.45

64. He continued to explain that:

Under section 24A of the Land Registration Act 1982, the Council of Ministers may already direct any department, statutory board, local authority, joint board and Manx Museum and National Trust to register all or a specific part of its property holding. The largest single decision that Government could take towards filling gaps in the title register would be to register its own landholding.46

65. Given the clear advantages of the registration of land, we agree that additional triggers for compulsory first registration should be introduced. Furthermore, we are of the opinion that the Government should lead by example in encouraging voluntary registration by registering all of its own landholdings.

Conclusion

The current triggers for compulsory first registration of land are not sufficient for progressing towards a complete register of all land in the Isle of Man.

Recommendation 4

That the sufficiency of the current triggers for compulsory land registration be reviewed and that consideration be given to introducing the following additional triggers:

 Conveyance not on sale (including appointment of new trustees)  Gift on marriage  Assent (probate)  First charge  Freehold on registration of a lease  Lower minimum lease term  Receipt of Agricultural Payments

45 Appendix 3, para. 1.6.1. 46 Appendix 3, para. 1.6.2.

19 Recommendation 5

That the Council of Ministers use its existing power under the Land Registration Act 1982 to direct the registration of all Government landholdings; and that it report back to Tynwald no later than February 2022 with details of how this will be executed.

IV. JUSTIFICATION AND HUMAN RIGHTS COMPLIANCE

66. Due to the negative operation of the law of adverse possession, it is often considered as an outdated and unjustified practice akin to a form of theft. However, as provided for by section 4 of the Theft Act 1981, land does not form part of the definition of ‘property’ which can be stolen by a person, except in limited circumstances.47 In his written submission, Mr Arculus reiterated this point, adding that considering the process of adverse possession as a form of theft:

...is simplistic and almost all systems of law have conceded that irrespective of the formal or documentary record of ownership, uncontested long possession of land must ultimately confer a good title upon the actual possessor.48

67. In justifying the continued presence of adverse possession in modern law, Mr Arculus presented three core reasons: psychological factors, quieting of possession, and stabilisation of land. In respect of the psychological aspect of adverse possession, Mr Arculus stated that:

The courts have historically been unwilling to remove land from a party who is in possession of land and has been for a long time because that person is likely to be more adversely affected by the removal of that land than will a party who has lost possession for a considerable period through neglect [...] In effect the law looks in the first instance not to the merit of the possessor but to the demerit of the one out of possession.49

68. The second and third theoretical justifications, the quieting of possession and stabilisation of land titles, are both intrinsically linked to the social and economic benefits of the doctrine of adverse possession. As explained by Mr Arculus, “land

47 Annex: Theft Act 1981, s.4 48 Appendix 2, para. 1.1.8. 49 Appendix 2, para. 1.1.9.

20 is of social utility and the ability of its owner to sell land or take security over it is a key component of our economy”.50

69. Limitation statutes that enable practices such as adverse possession are fundamentally intended to ensure that new owners may enjoy quiet possession of their land, property, or goods. They do so by preventing historical challenges against possession from being raised, which in turn reduces the social and legal costs of continuous litigation. Mr Arculus also pointed out that this functions not only in quieting the possession of land but also, for example, in quieting disputes about boundaries.51 He exemplified this point during our oral evidence hearing:

...where there is a sort of unspecified boundary but both parties claim it, because of double conveyancing, but one party can demonstrate the greater level of control and occupation, then title is assumed to exist. So it is also a way of resolving boundary disputes. Then it is also conceivable that somebody can demonstrate that they have been in occupation of land but they have no deeds for it and there are no deeds that exist.52

70. It follows, therefore, that adverse possession is a useful mechanism of enabling the acquisition of land in the absence of deeds. This prevents neglected or abandoned land from remaining stagnant or unusable and facilitates investment in, and sales of, land which contribute to the Island’s economy.

71. There have been suggestions that the practice of adverse possession may be contrary to Article 1 of the First Protocol of the European Convention of Human Rights and Fundamental Freedoms, as applied to the Isle of Man by the Human Rights Act 2001, which provides that:

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property

50 Appendix 2, para. 1.1.10. 51 Appendix 2, para. 1.1.10. 52 Q30, lines 165-169

21 in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.53

72. The question of whether adverse possession breaches this Right was ultimately answered by the Grand Chamber of the European Court of Human Rights in the case of J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom in 2007. By ten votes to seven, the Grand Chamber held that the fair balance required by Article 1 had not been upset by the loss of land by adverse possession.54 As summarised in Mr Arculus’s written submission:

The effect of this decision is to render unarguable any suggestion that the operation of adverse possession in relation to unregistered land (where the justification for adverse possession is stronger than for registered land) [i]s incompatible with Human Rights obligations.55

73. We agree that this decision, by the highest authority on matters of human rights, leaves no doubt as to the compliance of the doctrine of adverse possession with Article 1 of the First Protocol.

Conclusion

The law of adverse possession remains a valid and justified practice within the body of modern land law.

V. ISSUES OF COST

Cost of Land Transactions

74. As we have already established, it is overwhelmingly clear that an uptake in the registration of land will have significant benefits in drawing out and resolving land disputes, reducing the frequency of future land disputes, and offering valuable assurances to both current land owners and prospective buyers that the land they believe they own or are purchasing is indeed the same as the land contained within the title.

53 Annex: Human Rights Act 2001, Schedule 1, Part IA, Article 1 54 J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, ECHR 2007-III 55 Appendix 2, para. 1.2.9.

22 75. It follows, therefore, that as many reasonable provisions as possible should be implemented to incentivise first and subsequent registration of land, as well as the registration of any burdens applied to that land. In addition to the triggers mentioned above, this should include making voluntary registration more financially appealing.

76. In a written submission following up on the oral evidence hearing, Mr Arculus clarified that:

...there is a minimum fee of £75 for a voluntary registration where transactional fees have been paid into the Register of Deeds. This accounts for the majority of voluntary applications.56

77. Whilst £75 in of itself may not seem to be a significant fee for voluntary registration, it is important to remember that it will be added on to what is likely to already be a large bill with the advocates preparing all of the documentation and evidence required to enable registration. For many, the inherent cost of engaging in such a procedure is incentive enough not to seek voluntary registration. A £75 fee on top may, for many, be all it takes to reach the conclusion that voluntary registration is not worth the time and financial effort.

78. However, we equally acknowledge the view of the Land Registrar that the work required by the Land Registry for processing voluntary first registration is greater, more so than compulsory registration as a result of one of the existing trigger transactions.57

Conclusion

More should be done to make voluntary registration appealing to land owners.

Recommendation 6

That a reduction of the fee for voluntary registration of land be considered.

56 Appendix 3, para. 3. 57 Q71, lines 845-846

23 Cost of Proceedings

79. Proceedings in respect of matters such as adverse possession may be heard by three bodies: the Land Registrar, the Land Commissioner, and the Staff of Government Division of the High Court of Justice.

80. As is the case in many common law jurisdictions, the basic principle that the costs should follow the event is generally followed by both the Land Commissioner and the Courts in the Isle of Man. However, as noted by Mr Arculus:

The Courts and the Land Commissioner have wide discretion as to whether or how to award costs and costs may not always “follow the event”. Awards of cost may be challenged and assessed in separate legal proceedings.58

81. It is no secret that the cost of litigation can reach life-changing sums that the ordinary person is often unlikely to be able to cover. This can result in those of modest means, who may have lost their case at first instance, feeling incapable of appealing decisions out of fear that their costs may once again increase. Mr Cleator made this point in our oral evidence hearing, linking his own experiences of being issued significant cost orders with those of others who have been the subject of similar proceedings:

But in the past I know there are people fighting still to try to have their family lives put back together because of the cost of trying to protect your own property against bigger, more powerful people and twists and turns mean that you end up losing the land, paying your lawyers, paying the other side and it is devastating.59

82. Whilst we have great sympathy for the hardship that can be caused by significant cost orders following lengthy litigation, as Mr Arculus stated in his written submission, it must equally be noted:

That an unsuccessful party bears the legal costs of a successful party is an established principle in litigation (‘costs follow the event’). It is intended neither to punish or to reward either party but to ensure a successful party is restored to

58 Appendix 2, para. 7.4. 59 Q2, lines 131-134

24 the position he would have been in had the unsuccessful challenge not been made.60

83. The High Court Act 1991 provides that the Court has full discretion as to which costs are to be paid by which party, as well as the manner in which they are to be paid.61 The Act also enables the making of Rules of Court which:

(5) ...may make provision –

(a) for regulating matters relating to the costs of those proceedings;

(b) for prescribing scales of costs to be paid to advocates; [...]62

84. The provisions of this Act and of the Rules of Court mean that it is already possible for complete discretion to be exercised when deciding whether, and to what extent, a losing party should be issued with a cost order to cover the fees of the winning party. It is also possible for the Court to issue wasted cost orders to advocates or other representatives in the event that, for example, that party acted improperly, unreasonably or negligently during proceedings.63 We believe that these provisions offer sufficient flexibility in the law for costs to be attributed in a just manner following litigation.

85. In acknowledgement, however, of the financial difficulties that the system can still pose on those of lesser means, we have considered the way in which proceedings are carried out in the first instance by the Land Registrar.

86. When asked whether the Land Registrar’s hearings were adversarial or inquisitorial in nature, Mr Arculus advised that:

...in the absence of anything saying it is not inquisitorial, that is how I treat it, because we are examining title as we go along. We are the authority that is responsible for making that determination on what the title says. So it is not the case that we, as the courts would, be purely hearing evidence from party A and party B. We are also forming our own conclusions based on the title record.64

60 Appendix 2, para. 7.4. 61 Annex: High Court Act 1991, s.54(1) 62 Annex: High Court Act 1991, s.54(5) 63 Annex: High Court Act 1991, s.53(3) 64 Q55, lines 560-564

25 87. Mr Arculus noted the benefits of the Land Registrar’s hearing being a relatively informal step, as for many objectors to proposed registration of land, the core objection is frequently the result of a misunderstanding of where the land boundaries lie, who is seeking to claim title of what, and is an attempt to protect one’s own rights. When asked if it would be helpful to further formalise proceedings of the Land Registrar, Mr Arculus added that:

...personally I think that were we able to put, perhaps on a more statutory footing, the ability of the Registry or Registry staff to offer preliminary opinions without it prejudicing the ability to then hear that matter still as a Registrar hearing rather than requiring a referral to the Land Commissioner, that may be advantageous.65

88. Mr Arculus explained that the default position for the Land Registry in determining costs from proceedings is that they do not have to adhere to the usual principle of costs following the event. Given the relatively low cost of resolving an objection at such an early stage, it is often deemed unnecessary to issue cost orders.66

89. We agree that such a preliminary opinion could be a valuable first step for resolving a number of objections to registration, where the dispute can, in fact, be easily and quickly resolved between both parties without the need to incur the significant costs of advanced formal proceedings and the associated advocate fees.

Conclusion

The power to issue wasted cost orders and to determine what costs should be paid by all parties to any proceedings in the High Court already lies exclusively with the Court.

Recommendation 7

That an inquisitorial process by the Land Registrar be formalised in procedure to decide disputed cases of land ownership in first instance and that the ability to offer preliminary opinions without prejudicing formal hearings be facilitated in statute.

65 Q57, lines 586-589 66 Q70, lines 820-830

26 VI. QUALITY OF LEGAL SERVICES

Regulation and Complaints

90. One of Mr Cleator’s core complaints within the prayer of his petition was in relation to the conduct of litigators and their advocates throughout the course of legal proceedings, and the lack of effective remedies against behaviours such as “misuse of the legal system, vexatious litigation and financial intimidation”. This particular issue relates closely to our recent inquiry into the provision of legal services in the Isle of Man.67

91. In our oral evidence hearing, Mr Cleator noted the issues that he faced when considering complaints about an advocate:

I would mention another point that as far as I can see, every time you want to make a complaint about a lawyer overstepping the mark the suggestion is that you might go to the Law Society. Well certainly in my case, the lawyer that I have been having issues with was a President of the Law Society. So you are not going to do that!68

92. When asked if he had had any experience with the Advocate’s Disciplinary Tribunal, Mr Cleator advised that he was unaware of the Tribunal and the fact that he could submit complaints of misconduct against individual advocates directly to them. He then made the point that the burden of undertaking proceedings with the Tribunal would lie solely with him.69

93. We agree that it is unjust that a complainant must endure time and financial burdens in order to pursue a complaint against an advocate. This serves only to deter those of modest means from reporting concerns of professional misconduct, as the fear of losing their case at the Tribunal and being left with the costs will outweigh the potential benefits should they succeed.

94. It must also be recognised that the current complaints system with the Tribunal would not even permit a complainant such as Mr Cleator to lodge his complaint,

67 Constitutional and Legal Affairs and Justice Committee - First Report for the Session 2020-21: Legal Services [PP 2020/0191(1)] [PP 2020/0191(2)] 68 Q10, lines 392-398 69 Q15, lines 550-580

27 which would have concerned the conduct of an advocate that did not represent him. At present, “save in exceptional circumstances”, complaints can only be made against one’s own advocate.70 It should be possible for complaints of professional misconduct to be made against an advocate who has not represented the complainant.

95. We considered these issues in greater detail in our report on legal services, noting the composition and role of the Tribunal and the issues posed by the lack of lay membership as well as the private nature of its hearings. We also offer extensive commentary on the inherent conflict that still exists in the regulation of legal services in the Island due to the dual role of the Law Society as both the regulatory body and the representative body.

96. Without reproducing all of the points that we have already raised in that report, it is evident from Mr Cleator’s experiences that the shortcomings in the structure of the regulation of legal services in the Isle of Man warrant further review and reform. As we have concluded and recommended in that report, the complaints mechanism should be granted greater clarification, independence, transparency and modernisation in order to ensure that it benefits from the confidence of both the lay person and the legal professional.

Education and Training

97. A further issue that we addressed in our report on legal services, and which has presented itself to a degree in the history of Mr Cleator’s case, is that of subpar legal advice. Throughout our legal services inquiry, we heard from a number of people, in both oral evidence hearings and in written submissions, that Manx land law is particularly complex due to the significant number of differences in comparison to the land law of England and Wales.71

98. As discussed in detail in that report, we are of the opinion that the current system of training for Manx advocates is insufficient, particularly in respect of the areas of Manx law that have been identified as varying considerably from the law of

70 Annex: The Advocates Disciplinary Rules 2017, rule 3(d) 71 Constitutional and Legal Affairs and Justice Committee - First Report for the Session 2020-21: Legal Services [PP 2020/0191(1)] [PP 2020/0191(2)]

28 England and Wales, as this is the jurisdiction in which the majority of Manx advocates will have undertaken their legal studies.

99. Further to our conclusions and recommendations in our report on legal services, we reaffirm that training provisions are in need of improvement in order to ensure that Manx advocates are made sufficiently aware of the differences between the law that they have studied and the law that they now intend to practise. We believe that a significant and worthwhile step to this end would be to produce a textbook specifically on the unique features and operation of Manx land law. This textbook could act as a valuable reference point for incoming advocates, particularly those coming to the Island immediately after completion of their legal studies and without substantial experience practising land law in other jurisdictions.

Conclusion

Manx advocates require more effective and in-depth training on the unique features and operation of land law in the Isle of Man, particularly in comparison to that of England and Wales.

Conclusion

A textbook on the unique features and operation of Manx land law should be published and maintained in order to facilitate improved training of advocates.

VII. CONSOLIDATED LIST OF CONCLUSIONS AND RECOMMENDATIONS

C1. Directly sending written notification to relevant parties upon receipt of a claim of adverse possession is an effective mechanism of offering registered land owners a greater degree of security.

Recommendation 1

C2. The current provisions of the Limitation Act 1984 in respect of claims against land held on trust offer sufficient protection to beneficiaries.

C3. Registration of land is key to ensuring further protection to beneficiaries.

29 C4. The process of registering land should be no more burdensome for an advocate than preparing documentation for any other land transaction.

C5. An uptake in the registration of land will not remove the need for the professional services of an advocate in the conveyancing process.

C6. Registration of land provides an effective solution to many difficulties and disputes arising from unclear title deeds and ownership status.

Recommendation 2

Recommendation 3

C7. The current triggers for compulsory first registration of land are not sufficient for progressing towards a complete register of all land in the Isle of Man.

Recommendation 4

That the sufficiency of the current triggers for compulsory land registration be reviewed and that consideration be given to introducing the following additional triggers:

30 Recommendation 5

C8. The law of adverse possession remains a valid and justified practice within the body of modern land law.

C9. More should be done to make voluntary registration appealing to land owners.

Recommendation 6

That a reduction of the fee for voluntary registration of land be considered.

C10. The power to issue wasted cost orders and to determine what costs should be paid by all parties to any proceedings in the High Court already lies exclusively with the Court.

Recommendation 7

C11. Manx advocates require more effective and in-depth training on the unique features and operation of land law in the Isle of Man, particularly in comparison to that of England and Wales.

C12. A textbook on the unique features and operation of Manx land law should be published and maintained in order to facilitate improved training of advocates.

J P Poole-Wilson MLC (Chairman)

L L Hooper MHK

C R Robertshaw MHK

April 2021

31 32

ANNEX: EXTRACTS OF MANX LEGISLATION

1: Land Registration Act 1982 2: Limitation Act 1984 3: The Land Registry Rules 2000 4: Theft Act 1981 5: Human Rights Act 2001 6: High Court Act 1991 7: Advocates Disciplinary Rules 2017

These items of legislation can be viewed in full using the blue hyperlinks available at the start of each extract

33 34 1: Extract from the Land Registration Act 1982

Land Registration Act 1982 Section 46

PART V – GENERAL PROVISIONS AS TO REGISTRATION

46 Entry of rights appurtenant to land [NI/1970/18/51] Where, on an application by the registered owner or other person entitled, the title to any right, privilege or appurtenance belonging, appurtenant or attached to any registered land is proved to the satisfaction of the Registrar, he shall make an entry in the title register showing the existence of such right, privilege or appurtenance.

47 [Repealed]47

48 Acquisition of title by possession [NI/1970/18/53] (1) Subject to the provisions of this section, the Limitation Act 1984 shall apply to registered land as it applies to unregistered land.48 (2) Where there has been a defeasance of an estate in any registered land in consequence of any of the provisions of the said Act and — (a) a person claims to have acquired a right by possession to be registered as owner of an estate in that land; or (b) the personal representatives of a deceased person claim that the deceased or such representatives in right of the estate of the deceased had acquired such a right, the person so claiming or, as the case may be, the personal representatives may apply to the Registrar, in such manner as may be prescribed, for registration of the title to that estate.49 (3) Without prejudice to section 6(2), the Registrar may, and shall if requested to do so by the applicant or by any other person who has lodged an objection to the application, refer the application for decision to the Land Commissioner. (4) On any application under this section, where the Registrar or, as the case may be, the Land Commissioner decides that a title has been acquired by the applicant or, where the application is made by the personal representative of a deceased person, by the deceased or by such representatives in right of the estate of the deceased, the registration of that title shall be effected in such manner as the Registrar may think proper, but not so as to prejudice any estate of any other person in the land to which the application relates, being an estate which is not extinguished by the operation of the said Act.50

AT 7 of 1982 Page 31 c 35

2: Extract from the Limitation Act 1984

Section 16 Limitation Act 1984

(a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek; but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.

Actions to recover land, rent and dower

16 Time limit for actions to recover land [P1980/58/15; VI p240/5] (1) No action shall be brought by any person to recover any land after the expiration of 21 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. (2) Schedule 1 contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.17

(3) [Repealed]18

17 Extinction of title to land after expiration of time limit [P1980/58/17; VI p240/49; VII p485/4] Subject to section 18, at the expiration of the period prescribed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished.

18 Land held on trust [P1980/58/18; VI p240/15] (1) Subject to section 21(1) and (2), the provisions of this Act shall apply to equitable interests in land, including interests in the proceeds of the sale of land held upon trust for sale, as they apply to legal estates. (2) Accordingly a right of action to recover the land shall, for the purposes of this Act but not otherwise, be treated as accruing to a person entitled to such an equitable interest in the like manner and circumstances, and on the same date, as it would accrue if his interest were a legal estate in the land (and any relevant provision of Part I of Schedule 1 shall apply in any such case accordingly).

Page 20 AT 18 of 1984 36 c

3: Extract from the Land Registry Rules 2000 Land Registry Rules 2000

the applicants or, failing agreement, as the Registrar determines after giving notice to each applicant.

14. Production of deeds etc. (1) Where— (a) a document is required by these Rules to be filed with or produced to the Registry in connection with any application, (b) the original is deposited in the deeds registry, and (c) the application — (i) states that it is so deposited, and (ii) gives the number under which it is registered in the deeds registry, the requirement shall be deemed to be complied with (2) Subject to paragraph (1), where on any application a document is required by these Rules to be, but is not, filed with or produced to the Registry, the Registrar may reject the application unless he is satisfied that it is impossible or impracticable to produce it, in which case the Registrar may accept a certified copy in its place

15. Address for service (1) The address for service of the applicant which is specified in any application shall be his address for service for the purpose of the application and any proceedings relating to it. (2) Subject to paragraph (1), the address of any person as stated in the register shall be his address for service. (3) A person may by notice in Form 10 change his address for service, and on receipt of such a notice the Registrar shall amend the register accordingly.

PART 4

FIRST REGISTRATION AND EXAMINATION OF TITLE

16. Form of application Every application for first registration shall be in Form 1.

17. Documents to be presented with application (1) Unless the Registrar otherwise directs, every application for first registration shall be accompanied by —

37 Land Registry Rules 2000

(a) an extract from a survey map on which the boundaries of the land are • clearly indicated; (b) an epitome of the title of the applicant, that is, a list or lists in chronological order of all instruments, acts and events relevant to the title; (c) all such original deeds and documents relating to the title as the applicant has in his possession or under his control including affidavits, statutory declarations, opinions, abstracts of title, contracts for or conditions of sale, searches and requisitions on title and replies thereto and other like documents, and any other evidence necessary to prove such title; (d) copies or abstracts of any instruments referred to in sub-paragraph (b), the originals of which are not included under sub-paragraph (c); (e) where the first registration is compulsory under section 23, the originals of the conveyance or assignment to the applicant and of any charge made by the applicant; (f) a certified copy of the conveyance or assignment to the applicant (as well as the original, where required); (g) a certified copy of any instrument creating a charge affecting the land (as well as the original, where required); (h) a copy or counterpart of any lease for an original term of more than 21 years, or for a life or lives, to which the land is subject; (i) particulars of rights and interests over other land which are appurtenant to the land, and of rights and interests over the land which are appurtenant to other land, by reference to documents or abstracts or copies of documents accompanying the application; (j) particulars of all Schedule 6 burdens to which the land is subject, by reference to documents or abstracts or copies of documents accompanying the application; 411 (k) a certificate by an advocate in the form included in Form 1. (2) Unless the Registrar otherwise directs, an application for first registration of the ownership of a leasehold estate shall be accompanied also by — (a) the original of the lease under which the land is held, and (b) a certified copy of that lease. (3) Nothing in this rule requires an application to be accompanied by the original of a document which is registered in the deeds registry. (4) In the case of an application for first registration of the ownership of a leasehold estate, where the title of the lessor is not registered and a counterpart of the lease is presented with the application, the counterpart shall be returned to the person entitled to it endorsed with a note of the fact of registration in such form as the • Registrar considers appropriate. 15

Land Registry Rules 2000

(5) A copy or abstract of a document accompanying the application shall, where the document is registered in the deeds registry, include particulars of the date, description and parties and the date and number of registration. (6) Where the map provided under paragraph (1)(a) — (a) does not sufficiently identify the land the subject of the application, or (b) does not indicate the extent of other land affected by rights or interests appurtenant to the land, or of land subject of the application which is affected by rights or interests appurtenant to other land, the application shall be accompanied by such further particulars as are necessary to identify the land the subject of the application or the land referred to in sub-paragraph (b), as the case may be. (7) In particular, where — (a) the land the subject of the application consists of or includes a flat or floor, or part of a flat or floor, of a house or building, or a cellar or tunnel, or an underground space apart from the surface, or (b) any of the boundaries of the land is in a plane other than the vertical, an extract from a survey map shall be furnished showing the surface under or over which the land lies, together with such other elevations, sections, plans and other descriptions (if any) as the Registrar considers necessary. (8) In a case where paragraph (7) applies, any reference in these Rules to a map or plan (other than a survey map) includes a reference to an elevation, section or plan mentioned in that paragraph.

18. First registration of lease of registered land (1) An application to register any lease to which entry 3 of Part I of Schedule 2 to the Act applies shall be deemed to include a request — (a) for registration of the lease as a burden on the appropriate title, and (b) for registration, with such title as may be appropriate, of the lessee as owner. (2) The entry on the register to be made under paragraph (1)(a) shall include — (a) the date of and parties to the lease, (b) particulars of the term, and (c) particulars of the land demised, sufficient to identify it on the registry map.

19. Foreshore and sea-bed (1) Where any land comprised in an application for first registration includes foreshore or sea-bed that fact shall be stated in the application.

39 4: Extract from the Theft Act 1981

Section 3 Theft Act 1981

(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or (c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. (2) A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.

3 “Appropriates” [P1968/60/3] (1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner. (2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.

4 “Property” [P1968/60/4] (1) “Property” includes money and all other property, real or personal, including things in action and other intangible property. (2) A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that is to say — (a) when he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him; or (b) when he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or (c) when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land. For purposes of this subsection, “land” does not include incorporeal hereditaments; “tenancy” means a tenancy for years or any less period

Page 6 AT 21 of 1981 40 c

Theft Act 1981 Section 5

and includes an agreement for such a tenancy, but a person who, after the end of a tenancy, remains in possession as statutory tenant or otherwise is to be treated as having possession under the tenancy, and “let” shall be construed accordingly. (3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose. For purposes of this subsection “mushroom” includes any fungus, and “plant” includes any shrub or tree. (4) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.

5 “Belonging to another” [P1968/60/5] (1) Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).

(2) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right. (3) Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way the property or proceeds shall be regarded (as against him) as belonging to the other. (4) Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then, to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded, accordingly, as an intention to deprive that person of the property or proceeds. (5) Property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation.

AT 21 of 1981 Page 7 c 41

5: Extract from the Human Rights Act 2001

Schedule 1 Human Rights Act 2001

ARTICLE 17

Prohibition of abuse of rights

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

ARTICLE 18

Limitation on use of restrictions on rights

The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.

PART IA - THE FIRST PROTOCOL15

ARTICLE 1

Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

ARTICLE 2

Right to education

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.16

ARTICLE 3

Right to free elections

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

Page 24 AT 1 of 2001 42 c

6: Extract from the High Court Act 1991

High Court Act 1991 Section 53

(b) in the case of proceedings within subsection (2)(c), any penalty incurred in respect of any act or omission revealed by the facts on which the plaintiff relies in those proceedings. (6) Any reference in this section to civil proceedings in the High Court of any description includes a reference to proceedings on appeal arising out of civil proceedings in the High Court of that description.64

Costs

53 Costs in the High Court [P1981/54/51] (1) Subject to the provisions of this or any other Act and to rules of court, the costs of and incidental to all proceedings in the High Court, including the administration of estates and trusts, shall be in the discretion of the court, and the court shall have full power to determine by whom and to what extent the costs are to be paid. (2) Nothing in subsection (1) shall alter the practice in any criminal cause or matter, or in bankruptcy. (3) In any proceedings mentioned in subsection (1), the court may disallow, or (as the case may be) order the advocate or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court.65 (4) In subsection (3), “wasted costs” means any costs incurred by a party — (a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.66 (5) Rules of court may make provision — (a) for regulating matters relating to the costs of those proceedings; (b) for prescribing scales of costs to be paid to advocates; (c) that any functions specified in the rules and relating to the assessment of costs (including functions of the Chief Registrar) may be exercised by — (i) the court; or (ii) an officer of the court or other person authorised for the purpose.67

AT 12 of 1991 Page 45 c 43

Section 54 High Court Act 1991

54 Costs of litigants in person (1) Where, in any proceedings to which this subsection applies, any costs of a litigant in person are ordered to be paid by any other party to the proceedings or in any other way, there may, subject to rules of court, be allowed on the taxation or other determination of those costs sums in respect of any work done, and any expenses and losses incurred, by the litigant in or in connection with the proceedings to which the order relates. (2) Subsection (1) applies to civil proceedings — (a) in the High Court, or (b) in or before any other court or tribunal specified in an order made under this subsection by the Deemsters. (3) In subsection (1), “rules of court” in relation to any other court or tribunal specified in an order made under subsection (2), shall have the meaning given by the order as respects that court or tribunal.

Bonds and recognizances

55 Bonds given under order of court [P1981/54/135] (1) A bond to be given by any person under or for the purposes of any order of the High Court shall be given to the Chief Registrar in such form as may be prescribed and, if the court so requires, with one or more sureties. (2) The Chief Registrar shall have power to enforce a bond given in accordance with subsection (1) or to assign it, pursuant to an order of the court under subsection (3), to some other person. (3) Where it appears to the court that the condition of a bond given in accordance with subsection (1) has been broken, the court may, on an application in that behalf, order the bond to be assigned to such person as may be specified in the order. (4) A person to whom a bond is ordered to be assigned under subsection (3) shall be entitled by virtue of the order to sue on the bond in his own name as if it had been originally given to him, and to recover on it as trustee for all persons interested the full amount recoverable in respect of the breach of condition.

56 Enforcement of fines and forfeited recognizances [P1981/54/140] (1) Payment of a fine imposed, or sum due under a recognizance forfeited, by the High Court may be enforced upon the order of the court —

Page 46 AT 12 of 1991 44 c

7: Extract from the Advocates Disciplinary Rules 2017

45 46

ORAL EVIDENCE

47 48

20th January 2020: Evidence of Mr Mark Cleator, Petitioner

49 50

S T A N D I N G C O M M I T T E E O F T Y N W A L D C O U R T O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L B I N G V E A Y N T I N V A A L

P R O C E E D I N G S D A A L T Y N

Constitutional and Legal Affairs and Justice Committee

LAW OF ADVERSE POSSESSION

HANSARD

Douglas, Monday, 20th January 2020

PP2020/0019 CLAJ-AP, No. 1/19-20

All published Official Reports can be found on the Tynwald website:

www.tynwald.org.im/business/hansard

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © High Court of Tynwald, 2020 51 STANDING COMMITTEE, MONDAY, 20th JANUARY 2020

Members Present:

Chairman: Mrs J P Poole-Wilson MLC Mr L L Hooper Mr C C Robertshaw

Clerk: Mr R I S Phillips

Assistant Clerk: Mr P Smith

Contents Procedural ...... 3 EVIDENCE OF Mr Mark Cleator, Petitioner ...... 4 The Committee sat in private at 5.06 p.m...... 20

______2 CLAJ-AP/19-20 52 STANDING COMMITTEE, MONDAY, 20th JANUARY 2020

Standing Committee of Tynwald on Constitutional and Legal Affairs and Justice

Law of Adverse Possession

The Committee sat in public at 3.30 p.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MRS POOLE-WILSON in the Chair]

Procedural

The Chairman (Mrs Poole-Wilson): Good afternoon and welcome to this public meeting of the Constitutional and Legal Affairs and Justice Committee. I am Jane Poole-Wilson MLC and I chair this Committee. With me are the other members of the Committee, Mr Lawrie Hooper MHK and Mr Chris Robertshaw MHK. We are assisted today by the Clerks of the 5 Committee. The Constitutional and Legal Affairs and Justice Committee is a Standing Committee of Tynwald with a wide scrutiny remit. On 5th July 2020, Mr Cleator submitted a Petition for Redress to Tynwald concerning the law on adverse possession arising out of his experience with a legal case over disputed land 10 ownership. In November 2019 Tynwald Court referred this Petition to this Committee. Today we are taking evidence from the Petitioner. The Petition asks the Committee to inquire into three areas which I now summarise: (1) the Isle of Man Land Registration Act, particularly in relation to the adverse possession rules; (2) the creation and monitoring of a system to ensure that it is not 15 possible for financial weight to overwhelm a person’s right to a fair hearing; and (3) the creation of a system to recognise misuse of the legal system, vexatious litigation and financial intimidation and to penalise litigators or their advocates for employing tactics amounting to sharp practice. The Committee’s attention is drawn by the Petition to the Senior Courts Act of Parliament 20 1981, with a view to introducing similar protections against vexatious litigation on the Isle of Man. These points in the prayer of the Petition will serve as the remit of this inquiry. It is important to bear in mind the principle that petitions for redress are not allowed to act as a mechanism for appeal from decisions of tribunals or courts. The Committee will avoid seeking to rehear any legal cases but will concentrate on the specific remedies sought in the 25 Petition. Before we begin could I please ask everyone to ensure that any mobile phones are switched off or on silent so that we do not have any interruptions, and for the purposes of Hansard I will also be ensuring that we do not have two people speaking at once.

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EVIDENCE OF Mr Mark Cleator, Petitioner

30 Q1. The Chairman: Thank you for attending today. For the record please could you state your name and the capacity that you are appearing in today?

Mr Cleator: Hello there, my name is Mark Cleator and I am the Petitioner.

35 Q2. The Chairman: Thank you, Mr Cleator. I understand that you had prepared a statement for us but that you will provide that separately to the Committee in writing (Mr Cleator: I will.) and then the Committee can now proceed to have some more discussion with you about the points you have raised in your Petition. 40 Perhaps if we could start with the first area of your Petition which is in relation to the Isle of Man Land Registration Act and how it deals, or perhaps I think you suggest does not deal, appropriately with adverse possession. I wonder if you could tell us a little bit, please, about what sort of procedure you think or what changes you think might be helpful in order to find a better way of dealing with land disputes. 45 Mr Cleator: Okay. Well firstly, this actually does refer to adverse possession and I expect that most of the public do not appreciate what adverse possession actually is. Adverse possession on the Isle of Man – the timescales change for different jurisdictions but on the Isle of Man: if certain conditions are met and if those conditions can be shown to have been met for 21 years 50 then it is possible for the non-paper owner of a piece of land to claim what is referred to as possessory title over that land. In other words, he now owns it instead of the paper owner. So Deemster Doyle set five conditions in one of his hearings a few years ago, and if those conditions are met then that land can be transferred to the new owner with what is called possessory title instead of absolute title which is when somebody owns land based on their 55 deeds. So the actual owner loses his land to what is referred to in adverse possession as a squatter. Obviously I am not reading this out, I am now ad-libbing, okay. The concept of adverse possession is really that the possession is supposed to be adverse – in fact if you give me a moment I think I did put the five points in here. Excuse me. Yes, this is Deemster Doyle’s 60 wording from a judgment. I cannot work out from this what it is, but five conditions must be satisfied for a successful adverse possession claim: the claimant must have had possession of the land; that possession must have been exclusive; the paper owner must have been dispossessed or must have discontinued possession; the claimant must have had the intention to possess the land; and possession must have been adverse possession in the statutory sense. 65 So apparently, as I have read, if any one of these points cannot be shown then adverse possession does not stand. So on the face of it, it would appear that it is actually quite difficult to claim adverse possession, but in my experience, and possibly those of others, if a man of ordinary means such as myself finds his ownership of something being claimed by individuals who theoretically have a source of funds behind them that is much greater than mine, or 70 potentially infinite compared with what the likes of I might be able to come up with, the amount of ammunition, the amount of theoretical evidence that could be thrown at a case can be overwhelming – filibustering and, I believe, overwhelming, in my case, my lawyer and overwhelming the courts to a point where the judgments can be enormous in order to stay safe. In my case the land in question which currently has been stolen from me, legally, was 75 unbelievably taken by adverse possession having been shown to have taken place between the period of 1950 to 1971. Okay. So that period of time is obviously – well, I was four in 1971 so I have no bearing over and in 1971 this particular land was being held in trust by my grandfather and to be ultimately owned by my father once my grandfather died. That was 1978; my father

______4 CLAJ-AP/19-20 54 STANDING COMMITTEE, MONDAY, 20th JANUARY 2020

came into ownership of this particular land in 1978 and then after a fairly long period of time he 80 started getting involved with the land later on in the 1980s with me when I was a teenager. In 2004 I took responsibility for this particular land and then in 2008 it was transferred to me. The difficulty is that there is the land in our case and then the top of our lane sticks out into somebody’s garden and I found myself in dispute with the people who have recently bought that house; and they are not the people funding the hearing, funding the advocate that is fighting 85 me, effectively. It is my belief that they were coaxed into moving to the Isle of Man for reasons that you will read in my long statement here, and have found themselves embroiled in something that I am quite sure they would not want to have found themselves embroiled in for the benefit of somebody else. Moving off that, because I have gone off on a tangent slightly, and going back to the adverse 2 90 possession, after four-and-a-half days in court for a 3.7 m piece of land was concluded it took the Deemster two-and-a-half months to produce a 77-page judgment which then settled on the fact that we had lost this small 3.7 m2 piece of land at the top of my lane in 1971 when adverse possession had apparently kicked in. I have got many problems with that judgment but the most obvious one was that at that 95 period in time it was nothing to do with me and it was nothing to do with my father – it has been used since then; and particularly that it was actually held in trust. I have forgotten the actual word. My grandfather was a life tenant. Effectively, he could not sell it, it had to come into ownership of my father once my grandfather died which is a trust. So when discussing whether or not we ought to appeal that decision, my lawyers Callin Wild 100 advised me that whilst they found the decision very surprising because we were actually fighting for a property application that was absolute title not possessory title, which is where adverse possession would have otherwise come into it, we were protecting absolute possession, absolute title, I told them, as advised by my father, that they could not take that land using adverse possession because it was held in a trust. In the UK the law is that adverse possession 105 cannot be used against land held in trust, but in the Isle of Man I was told by my lawyers that the trusts element of the adverse possession rule had been ignored or not used, for want of a better word. It was backed up by advice from the Attorney General in Hansard in 1984. So I took that as, well, okay, this is not right but it is the case with law on the Isle of Man. So with all of the other things I had experienced to do with this, and it is nearly five years, I chose to 110 go to Tynwald with it to have that law put right, but also the fact that adverse possession as a whole, I think, is little understood by the public – most of the public do not know it actually exists – everybody thinks it is ridiculous. I certainly think that it needs to be investigated as to why it exists, why it is needed and there may well be reasons; the law abhors a vacuum, I believe, and it might be a situation where it might be useful in situations to actually put 115 ownership back to someone else when other owners have actually vanished, potentially. But when somebody is using their land, and certainly in this instance, when the ultimate result of this is me landlocked from my field, it seems not safe. After I submitted my Petition to Tynwald I have continued researching, and other people I know as well who have interest in what is happening here and so we are all interested in it and 120 people throw things at you to have a look, and it appears that … I think I wrote it at the front of this one; on page 2 of my evidence supporting the Petition, paragraph 3 after number 8, I have said:

Notwithstanding the above, I would draw the committee’s attention to Page 35 of the IOM Limitation Act 1984 which has recently come to light – “Right of action not to accrue or continue unless there is adverse possession”.

That is the heading.

Section 9 states “no right of action to recover the land shall be treated for the purpose of this act as accruing during that possession to any person in whom the land is vested as a trustee ...

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So I am not a lawyer but I can read and I have looked at this a lot and I cannot see how that actually is not the protection that I should have been afforded, which means if that is true then 125 the adverse possession rules on the Isle of Man do have protection for land that is held in trust. And if that is the case then no law needs changing. I am not suggesting that adverse possession should not be looked at as a whole, because it certainly should. Adverse possession is wholly abhorrent and the more you look at the decisions that have been happening on the Isle of Man using adverse possession through the years and what is going on at the moment it is used 130 almost as an extra option just in case in some situations, which I know you are going to see at some point. But in the past I know there are people fighting still to try to have their family lives put back together because of the cost of trying to protect your own property against bigger, more powerful people and twists and turns mean that you end up losing the land, paying your lawyers, paying the other side and it is devastating. 135 Certainly in my case where the costs that I have been ordered to pay are entirely unreasonable just to protect what … Five years ago I did not have a problem, five years later I have suddenly got somewhere near £80,000 of costs to pay out, plus the £50,000 that has already been paid to my lawyers, to try to protect a 3.7 m2 piece of land that allows me to get to my field which I now cannot do because I am landlocked. The next stage will be that that field is 140 now going to be claimed as well and if I want to try to protect that then I have got the same problem. So adverse possession is designed for the aggressor, if he is wealthy, to win – as simple as that. You cannot fight it because a very clever lawyer can twist you and turn you and try to change words that you say in statements and then prove once and for all that certain things 145 were not done. How am I supposed to show usage of something between 1950 to 1971 – two generations before? But here I am 40 years later with costs because of something that did or did not happen that long ago and nobody has actually claimed adverse possession up until now but we are told that they have. But they have not.

150 Q3. The Chairman: Mr Cleator, thank you for explaining all of that. I would like to thank you as well because you have sent into us the Land Registration Act, an Act of Parliament 2002. So I think maybe at this point it is just helpful on this point about how our land rules operate. Obviously the Committee today cannot opine on the operation of any law that is going to be part of our ongoing inquiry as to what our laws provide or do not provide for. But can I just 155 clarify that in sending us the UK Land Registration Act 2002 the points you are drawing to our attention are that there is specific provision in there about the position of trustees.

Mr Cleator: No, there is actually in the Isle of Man Limitation Act –

160 The Chairman: No, Mr Cleator, I have got that point about what you have raised in your introduction and that that is the Limitation Act, but if we can –

Mr Cleator: I have 1984 actually written here.

165 Q4. The Chairman: Yes. This is just a specific question about the rules on how land is registered or not, and how people come to know about potential adverse possession proceedings or not; and I wanted to clarify with you, in sending us the UK Act which is obviously a more up-to-date version of the Isle of Man’s Land Registration Act which dates back to 1982, what you wanted to say about what you think is preferable about the UK’s Act. I wanted to 170 understand with you that in the UK Act there are specific rules in a schedule dealing with adverse possession and specifically dealing with the position of a trust and beneficiaries under a trust.

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I just wanted to make sure that we as a Committee have understood that that is part of what we should be looking at when we are examining the state of the law on the Isle of Man and any 175 potential for future change.

Mr Cleator: When I sent the Petition through it was not evident from the Land Registration Act that there was any protection for trusts, and the advice from my lawyer and certainly the comments by the Attorney General in Hansard in 1984 supported that. So in the Land 180 Registration Act itself there is no obvious protection for trusts whereas in the UK Act, which I think you said is 2002, it is listed in the Land Registration Act of the UK. So it is really clear; if you just compare the two Acts you can see the omission and then you can refer to the comments made by Attorney General William Cain in 1984 where he specifically refers to trusts as also within the remit of adverse possession, so that land that was held in trust would also be able to 185 be taken by adverse possession. So the trustee loses his land before he even knew he had it, in some cases. That situation was discussed at length by, was it, Baroness Lady Ashtall of Scotland (The Chairman: Yes.) in the Hansard of the UK. I cannot recall the date, but she made some extremely important analogies as to why such a protection should be in place and it is quite 190 compelling when you read her examples, because there is another Lord who was quite keen on having it removed and she ensured that it stayed and her examples were clear. It is an important thing and it probably would stop what is happening here now today. But further on from that, I then looked at the Limitation Act. I have forgotten the date, but the Isle of Man Limitation Act does actually refer to trusts as being excluded from when the time 195 starts to accrue, the 21-year period that needs to build up, the limitation period that starts and needs to finish. It cannot start while land is held in trust and it says that in the Limitation Act; and the Isle of Man Land Registration Act relies on the Limitation Act. So I actually think what we need to be doing is clarifying that that is the case, that land that is held in trust is already protected on the Isle of Man; and if that is true then actually the way the laws are written may 200 be a bit weird. Maybe the little trust element should be added into the Land Registration Act, and made clear because it seems to me that it is in the wrong place possibly, because it was not spotted by my advocate, it was not spotted by the Deemster and it seems to be confirmed by the Attorney General in 1984 that it also is not a thing as such. Yet in the Limitation Act it is actually mentioned. So presumably the question that was asked of the Attorney General in 1984 205 led to what looks to be possibly the wrong answer, potentially. If when your legal team look at this you agree with me that it is actually in place then what we have is a situation where the law does not need changing, it is okay apart from the fact that adverse possession as a whole needs to be discussed.

210 The Chairman: I will just invite my fellow Committee members in case they have got any other questions on this particular aspect of the Petition. But my understanding is that what the Committee is going to do is look at how the law operates currently on the Isle of Man in relation to adverse possession and the interaction with the limitation period and particularly where land is held in trust and look to compare that with how the situation is in the UK, particularly, as 215 there is a more up-to-date piece of legislation around, the Land Registration in the UK, that appears to be relevant. So that is what I would understand the Committee is going to inquire into. Mr Robertshaw, did you –? (Mr Robertshaw: I’m fine.) Mr Hooper?

220 Q5. Mr Hooper: My only question really is your concern is simply predominantly about unregistered land, so land that has not already been registered at the Land Registry; it seems to me the situation in the UK treats registered land much more favourably than unregistered land, whereas our system at present does not. Would that be your understanding as well, that at the moment in our system it does not matter whether your land is registered or not, it seems to give

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225 the same level of protection whereas the UK, through its updated Land Registration Act, actually says that in essence if you registered your land you are relatively well covered?

Mr Cleator: Well, I think you have probably read this because I am pretty sure I have mentioned that somewhere in here, though I wrote it before Christmas. 230 The Isle of Man Land Registry, which they had the idea for I think in the late 1980s, it started to kick in around then, it took a little bit of time to gain traction and I think it became compulsory to register your land in the Land Registry in 2009. The deed that was done for me for this land was produced in 2008. According to my father, the lawyers were actually … he was quite keen, my father, and he believes he paid the lawyers 235 to actually register it in the Land Registry even though it was not compulsory at that time. It did not happen. So that aside, it seems to me that the act of registering something in the Land Registry is being used in certain cases as an excuse to have a fight. So what we are saying here is that the deeds in the Deeds Registry are not good enough anymore. I used to work in the Deeds Registry in 1988. I was the last deeds master and I computerised 240 it with Ruth Vondy and so I know how it works or I seem to think I can remember how it works. Obviously there is no actual scrutiny in the Deeds Registry as to whether or not a deed, a plan, for instance, was maybe encroaching onto another plan. So I entirely understand the reason for the Land Registry existing, but far too much onus is being put on maybe the respondent in such cases where their land maybe being encroached upon and they have got to protect themselves. 245 This business of pushing everything through to a Land Commissioner and we all have to go to court and we all have to get a lawyer and we have all got to pay £390 an hour until the job is done, it is not right. If you have got a piece of land and you own it and it is registered in the Land Registry and it has been in the Deeds Registry, I should say, and it has been there for years and years, that 250 should be ‘unencroachable’ unless you have caused a problem. The trouble is if the person who wants to cause a problem is incredibly wealthy they can cause a problem until the other person has to give up because we have got a situation where we have got a changeover and we are now trying to put this Land Registry into place with the lines that have been drawn and I think originally started from overhead pictures that have been pieced together and then put onto a 255 system, and then bit by bit everything is going to get moved around. But it is going to be moved around by court cases at phenomenal expense to the public, to private individuals who thought they owned land and now the boundaries are in a different place and somebody is going to say, ‘That line is there and I have got my deeds here and my deeds are right, I have had these deeds for years.’ 260 But because somebody now is trying to register something in the Land Registry it can all be fought over and I have got a situation here where something has been in my family since 19 – well, my root title goes back to 1939 and it was in my family a long way back before; and here I am, because we have got a Land Registry it has opened the floodgates to have a fight. And it is not equitable, basically. 265 Q6. The Clerk: I do not want to refight the case because that is not why we are here, but this is sort of a daft question: you talk about the period 1950 to 1971; after 1971 your family occupied the land, why didn’t you claim adverse possession back, as it were?

270 Mr Cleator: Adverse possession had been claimed on us at that time. There had not been any claim of adverse possession –

Q7. The Clerk: Yes, but when they said between that 21-year period they held it, whether that is right or wrong, why didn’t you say, ‘Yes, but it has been a long time since 1971 –’? 275

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Mr Cleator: We are talking about people who have just moved into their house. (The Clerk: Yes.) They certainly did not hold it. What has been done is they have looked back and back and found overhead photographs that make it look like it was not in use and we cannot say that it was. I was four, my father was an electronics engineer in the Airport and my grandfather was a 280 wagon driver, but in 1978 it came into ownership of my father. This is the top of a lane. So there is nothing you do; you drive through it which happens to be in front of someone’s house to continue down your lane. It is a bizarre layout but it is done like that so it cannot be blocked. So there is no question about why didn’t this happen or why did that happen. In 1987 onwards my dad made it perfectly 285 clear that this land was in our ownership and the previous owners of this particular house became very good friends of mine; it is the new people who have been treated as – the word stooges has come into my mind. I do not believe they even knew what they were getting themselves involved in because there is more to this.

290 Q8. The Clerk: Right, yes, but you were not able to establish that since 1971 you had had a 21-year period of ownership?

Mr Cleator: They were not asking for that. Out of the blue we got this 1950 to 1971 period. We had photographs in usage from 1987 onwards. My dad came into ownership of it via a will in 295 1978. But the whole crux of it was that this particular application, when unfortunately the people at the top of my lane tried to register their house and put a separate application in to register the top of my lane, they tried to register it with absolute title. So, quite rightly, my lawyer has prepared all of the deeds and shown that they do not own it because, ‘Here are the deeds that show that you do not own it and that we go all the way back to 1939.’ 300 It got twisted around in court into a possessory title thing, which I do not believe is right. Had I understood what that actually meant at the time, because I know a lot more now than I did then, I would have stood up and said, ‘I am not having that, it is ridiculous. We are fighting absolute title here and I have got absolute title.’ There has never been a time where I have had to try to show usage between 1950 to 1971, 305 and had I known that then we would have still had people, like there was a farmer Winston Corkish who did use it then. He was not one of the witnesses that were called. (The Clerk: Okay.) So hopefully that answers your question. It is too deep to just discuss here probably, but what has happened is a travesty, it is wrong. What it has done to me and the five years that I have had fighting over 3.7 m2 of land to try to maintain access to my field which is not an 310 important part of my life but I do own and it is family land, it is just ridiculous. It has completely taken over my life. It does because when you are being bombarded with legal documents and you are going to do this and you have got to fight that and you have got to go to however many, three court cases. It is just going on forever. So this is easy compared with that.

315 Q9. The Chairman: So, Mr Cleator, I know you have talked already about the process and the inequity of arms and so on, and I think it would be helpful just to understand a little bit more about the suggestion you put forward in your Petition: the creating and monitoring of a system to ensure it is not possible for financial weight to overwhelm a person’s right to a fair hearing. I do not know whether you have any particular models in mind. (Mr Cleator: I do.) Okay. It 320 would be most helpful to hear then what your thoughts are on this.

Mr Cleator: I have thought about this a little bit. How it actually gets achieved I am not sure but what I have observed in a number of cases, not just mine, is that the Deemsters, wrong or right, because obviously I happen to think the Deemster is wrong in my case on the overall 325 decision ... but what I have seen is criticism from the Deemsters of the lawyers, and in some cases, which you will see evidence of, those lawyers have made continuous fraudulent claims –

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in some cases modified documents – and generally withheld or misled the court in any way that is possible in order for a gain for their client. If a Deemster has found it necessary to include that in his judgment or summing up, or 330 whatever you would like to call it, wherever it comes from, if a Deemster finds something impossible to believe which actually is something that came up in the appeal that I had to go through … No, I did not go through, I did not take part of actually, but I have seen the judgment and the Deemster found a certain thing impossible to accept and yet he still handed over more rights to the other side. 335 I have seen other documents where there are multiple criticisms of a certain advocate, and obviously I am only focusing on one, but if I carried on my life in the way that I am seeing here I would not be in work. If I just kept doing things wrong, kept doing things wrong, ‘Oh, there is a right thing,’ I would not be in business. So what I think should happen is that every judgment – and there are not that many of them 340 relative to how many man hours there are to actually read these things – should be read by an impartial member of the Government, maybe with some training so he understands how to read these things, and a marker put by the side of anything that looks like it is a criticism against a professional – in other words, an advocate. Those documents could then be passed onto somebody with a little bit more experience who would say, ‘Yeah, that really is a little bit wrong, 345 so let’s add that to a database against that advocate’s name.’ Hopefully it would be a copy of the line so that you can see what got printed by the Deemster and it might be given a mark out of five or 10 of its seriousness. Then over a period of time it would become quite obvious, using graphing or whatever you like, that particular ones have a bad habit of overegging the pudding; in other words, misleading 350 the courts. Because at the moment you have got a situation where courts are being misled, what seems to me, on a regular basis, but it ends up as not being relevant to the outcome of the decision and it is all just put aside. But the courts had been misled. Whether it is relevant to the decision or not, what it was was another thing that the opponent had to fight against, that his lawyer has had to spend time dealing with because every point has to be argued at a great 355 expense – it was £390 an hour in my case; every point has to be argued. If we could reduce the amount of irrelevant points by reducing the amount of times the courts might be misled and have to filter out all of the rubbish, then I think we could certainly save a lot of court time which is public money because I am not paying the Deemsters, I am not paying the ushers – somebody is paying all that: the taxpayer is paying all of that. We are having 360 court time wasted by multiple points being thrown at it. Actually the phrase that my advocate used was ‘a scattergun approach’, which is quite interesting, ‘bang, bang, bang, bang,’ and one of them hits. But my lawyer has had to argue every one of those and some of them could be misleading the court and the Deemster decides if he has found he has been misled or not and he sums it up, 365 and they do. It is there in black and white. So what you then have is if you have got a misleading of the court there are actually rules in the Fraud Act as in what the punishments might be for misleading the court. But where is the bit in the middle where this Deemster on this case which is not specifically focusing on the fact that that person has misled the court ...? Who picks that up and says, ‘That was fraud that was. Let’s do some punishment please.’ 370 Q10. The Chairman: So to your knowledge, certainly in the matters you have been involved in, where there has been a statement by a Deemster of either information not being provided or the court being misled, to your knowledge there has been no follow up to any of that –

375 Mr Cleator: There is no follow up.

The Chairman: – whether from a disciplinary perspective of the legal profession or in terms of costs, because that is the other tool open to the court: where somebody has spent a lot of

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time and misled and put the other party to extreme costs (Mr Cleator: Yes.) to deal with all 380 those points, that can be taken account of in the ultimate award of costs. So do you think it has been weighed up in that context at all?

Mr Cleator: Unless you can tell me of anything, I cannot find or see any part of the system of government which picks up on the fact that a Deemster has identified that the courts have been 385 misled and the part of the Fraud Act that deals with that is then matched up to it. There is an assumption that if it is said in court and if the Deemster says he has been misled but he has made a decision whichever way, all of these times the Deemsters have been misled and said they have been misled are just ignored. They are not followed up on. If they were followed up on, very quickly I think you would find that the court hearings would 390 be much shorter, much quicker, with much less cost to the public and significantly less cost to the Government, which is ultimately the public as well. I would mention another point that as far as I can see, every time you want to make a complaint about a lawyer overstepping the mark the suggestion is that you might go to the Law Society. Well certainly in my case, the lawyer that I have been having issues with was a President 395 of the Law Society. So you are not going to do that! Nearly every other professional body that I know of there are regulations to control them and to keep them in place, but it seems to me that the legal system on the Isle of Man, certainly the lawyers on the Isle of Man, are running their own shop and I do not think there is anybody in place with the ... I am not suggesting the will is not there but it is probably going to take something like this to actually kick-start that will. 400 There needs to be some regulation over these guys because they are just running rings around the legal system and our Deemsters. The other problem of course is that our Deemsters are actually coming from the pool of lawyers on the Isle of Man so it is a bit of a closed shop there as well. If you are in the UK you have a circuit judge. Judges go around a circuit, as far as I know, so 405 there is definitely going to be no confliction. In my case, the Deemster owned the company that did my deeds in 1978. Lawrie laughed! Well, how can that be? How is that not conflicted? As a layman in my case if that man owned outright the company that did my deeds and now he has effectively said that those deeds actually should not have been done because adverse possession happened 40 years ago, why were they doing the deeds in the first place? Why 410 wasn’t it spotted then? Why wasn’t I advised that adverse possession could have taken place? I have been dragged through this kicking and screaming. I have not instigated this and I have basically been on a roller coaster that I cannot get off. Once you are in this you cannot get out of it, there is no way out. Even when the appeal happened I tried to go neutral. My lawyer told me to go neutral and it 415 cost me another £15,000. I did not appeal, the winners appealed. So when you have a situation where the winners appeal because they did not like the fact that the Deemster had given me a right of way over the land that used to belong to me, it is then shown that he makes 18 errors in law – I do not take a part in it and yet I am still given the actual bill for it.

420 Q11. Mr Robertshaw: Mr Cleator, can I just interject one point where you said that Lawrie laughed. The Committee takes these matters incredibly seriously and I think it was an expression of anxiety.

Mr Hooper: I think it was an expression of incredulity actually. 425 Mr Cleator: Good lad! Yes.

Mr Robertshaw: Just for the record I think –

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430 Mr Cleator: I did not take exception. I was very happy with it, to be honest, because it is a ridiculous situation. I am just reminded as well of course in this situation where the equity of arms … we can get back to the equity of arms and one of the things that is happening on a regular basis is that the rules of courts are totally being flouted. You have a situation where there is a time limit for 435 doing something. So in the case of the absolutely horrific judgment against me you have a period of time to appeal. We had discussions. My lawyer knew what date that appeal should be and once we worked out I could not afford to do it and also the law was not going to protect me sufficiently anyway, what was the point in appealing so I did not appeal. We were the losers. You would expect us to appeal or not appeal. That is usually what happens. 440 So the appeal date passes and 20 days after that we receive appeal documents from the other side. They have appealed because the Deemster has given me a right of way over what used to be my piece of land but he has taken it away. In order not to land lock me he has now given me a right of way. I did not ask for that right away because obviously I did not know I was not going to be owning it. I had a right of way by the fact I owned it. So now we have got a 445 situation where they have appealed and they think the Deemster has made 18 errors in law – 18 errors in law – and I am supposed to fight that. I have just been faced by 80% of £63,000 – is what I am expected to pay, plus the bills from my lawyer as well; and now I am supposed to go to court to fight to protect the Deemster’s decision. Not only does that sound ridiculous because it is ridiculous, who am I going to pay to come 450 up with 18 answers – 18 answers – errors in law by the Deemster that I have apparently got to pay a lawyer to argue? And the appeal Deemster accepted that as well even though it was late. So we have gone to there, bang, we have not appealed. If we had appealed they would have answered that, but what has happened is we have not appealed so they have appealed. Okay? That is not fair. If they were going to appeal they should have appealed there because it should 455 have been all over after that, but they appealed there. That has been allowed to happen and that has cost me another £15,000 for doing absolutely nothing, for not taking part because it was not my decision. It was not something I asked for, as has been shown by them, and yet because that Deemster allowed that appeal to go ahead late it has cost me even more money. I did not take part because I could not afford it, partly. What part of not being able to afford it 460 did the appeal Deemster not understand? He actually thinks it is okay for £5,000 for transcription. It cost £5,000 for transcription of the original hearing. I think I might become a transcription clerk because that is bloody good money in a month! And the other £15,000 was the one month of preparation for that appeal hearing by this particular lawyer. When you compare that with the costs for the full hearing, which was £63,000 on their side – 465 between two to three years of legal preparation and four and a half days in court was £63,000 – how have we managed to work up £20,000 for an appeal that never even went to court, when apparently it is only £63,000 for four and a half days in court and two to three years’ worth of preparation? The whole thing stinks and it is very obviously attrition. That is what this is. It is firing big numbers at me to put me in a position where I cannot carry on. 470 To be honest, once your house is actually arrested you cannot carry on anyway and that is where we are now. The Coroner – not the Coroner that should have been, by the way, I do not understand that, not the Coroner from my area – has now arrested the field that I cannot get to. So I cannot get to the field that has been arrested to get the arrest document because I would be trespassing now. 475 Q12. Mr Robertshaw: What is your point about it is not the right Coroner?

Mr Cleator: What did I say? I have gone on a rant.

480 Mr Robertshaw: You said it was not the coroner expected. I just –

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The Clerk: From your area.

Mr Cleator: I expected it to be the Coroner for Middle, which I think is Mark Wrigley, and in 485 fact it was Stuart Gardner who is the Coroner for Glenfaba and Michael. I just think it is a bit unusual that it is not the Coroner for my area that chooses to serve documents upon me on my property.

Q13. The Clerk: I do not know if it has got any distinction with any difference at all. I mean 490 they are just carrying out the court order.

Mr Cleator: It might not make a difference but it is a bit unusual that it is not the one in the area. It is almost as if it might be one that is usually used, potentially.

495 Mr Robertshaw: Sorry, I just sought clarity on that.

Mr Hooper: Do you mind if I ask a question?

Mr Cleator: I would love it! 500 Q14. Mr Hooper: You have raised a couple of quite important points here on the course of arms. There are two systems that supposedly exist to try and protect equality of arms within the Manx system. The first is the legal aid system. That is supposed to ensure that people who do not have the resources to fight their own cases are provided with resources to do so by the 505 state. Have you had any interaction at all with the legal aid system throughout this?

Mr Cleator: Yes, it is done through your lawyer. The lawyer asks you for a statement of earnings. My earnings are devastated, to be honest. Over five years of this is not very good because I run my own small business. Obviously these sorts of things … but over a period of time 510 it is pretty obvious to everybody around me that my productivity has nosedived actually to an extent where I now turn work down because it is too hard. So my partner who has a part-time job, Nicola, works for one of the local property companies doing their books while also she is looking after our disabled kid. So we are not actually very well off and yet when our earnings were submitted to my lawyer 515 he came back and said we were not eligible for legal aid because we had £200, I think he said, a week disposable income. It is £390 an hour for a lawyer so I do not understand how that comes anywhere near it. But I could not get it, so that was out the window. I could not afford to appeal, I could not get legal aid and I have got the evidence of that – I might have included it in here somewhere – but also the law at that time … it looked like I had nothing to fight anyway. 520 Now I think I would have had, but of course the time limit ... We honoured the time limit. We did not appeal, but then the opposition appealed afterwards, even as the victors, out of the blue – very unusual. I do not think that those time limits should be being exceeded by anybody at any time. It looks to me, and I have seen it over and over again through this, that unless you actually apply for an extension and if you do apply for the extension before the time limit, then fair 525 enough, as long as everybody agrees, there can be an extension. Because people can be busy, people can be on holiday, people could be in the middle of other cases etc., but they should keep an eye on their time limits. We all have to pay our tax in time. We all have to pay our National Insurance payments in time. Lawyers should have to put documentation in in time and they certainly should not be confused about when those times are. But again in the 530 documentation I have got here I think I have actually shown, I have probably put the one in there where this particular lawyer was confused about the time – when it started, when did the clock start up until when the appeal could go in? He seems to know that he will be allowed to continue anyway.

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I believe that these limits are put in for fairness but if everybody puts their documents in on 535 the same day then there is none of this, ‘Let’s see what they have written before we put ours in.’ But if you put your documents in and they see them and then they put a version in, which now they have had a chance of answering what was all in here, it has actually moved it one stage backwards for them; and you are here and they are a stage ahead now. So the Deemsters need to stop allowing these time limits to be exceeded because it is not fair. 540 The Chairman: You had a second –

Q15. Mr Hooper: The second question I had was about when it comes down to the conduct of lawyers. You have – 545 Mr Cleator: Lawyers should know where the time limits are.

Mr Hooper: Yes. What I am getting at is you said earlier that you were advised to contact the Law Society if you have an issue or concern over the conduct of either party. (Mr Cleator: Yes.) 550 Are you aware of the Advocates’ Disciplinary Tribunal which is a body that you are always entitled to reach out to? You do not have to go through the Law Society at all. I am just wondering if you have had any experience of dealing with the ADT.

Mr Cleator: No, I have heard the phrase. Is it a UK one? 555 Q16. Mr Hooper: No, it is an Isle of Man body. I am just wondering if you had any experience dealing with them.

Mr Cleator: No. I have not been in touch with them. But is it a Government body? 560 Mr Hooper: It is an independent tribunal –

The Clerk: It is a public sector body. It is independent of the Government, but it is a formal way in which you can make a complaint against an advocate. 565 Mr Cleator: Is it the same sort of system as the Financial Supervision Commission?

The Clerk: Well, if you do not know about it I recommend that you go online and look at it and see whether it is useful to you. 570 Mr Cleator: But that is me having to do something. (The Clerk: Yes.) Are they setting the stiff rules that the advocates are having to stick to?

The Clerk: No, they are applying the rules and if you have got a complaint you can look and 575 see what they can do about them. I do not know if we ought to go into too much detail because actually I recommend you just go on their website and have a look and inform yourself about what they can do for you.

Mr Cleator: Yes, but what you are doing here is moving it over onto me and I am now trying 580 to demonstrate where the shortcomings are.

The Clerk: No, you asked the question about what the ADT is so I am just –

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Q17. Mr Hooper: Sorry, the reason I asked is because that is the current way that conduct 585 and behaviour of advocates is regulated on the Isle of Man. (Mr Cleator: Fair enough.) So obviously if you have had issues –

Mr Cleator: If it is regulated. Is it regulation?

590 Q18. Mr Hooper: That was my question: as to whether you were aware of them and whether you had gone through them.

Mr Cleator: My question was: is it like the Financial Supervision Commission, because this is more serious than regulating finances because if these people are allowed to run roughshod like 595 they have done here over the likes of me then the figures we are talking about are life changing, whereas a few hundred quid here and a few hundred quid there and a slight break of the rule here and a slight break of the rule there does not really affect ordinary people, it might affect people’s millions of savings and stop potentially money laundering or whatever. Well, I am not that interested in that but we certainly seem to have a very strong will to control the financial 600 institutions and yet it looks like we do not have a body in place to control the legal institutions where they are presumably being held to account on a regular basis like the financial institutions are.

Q19. Mr Robertshaw: Just for my clear understanding about this, when you first mentioned 605 the point about, ‘Well, I was required, as it were, or would be expected to approach the Law Society,’ and then you mentioned the President’s involvement; could you just clarify that for me a little bit please?

Mr Cleator: Okay. Well, the particular lawyer – who I respect, I do certainly respect his 610 intelligence – who is the driving force behind all of this, apart from his paymaster, was the President of the Isle Of Man Law Society, not specifically when I would have considered necessarily making a complaint. I had him looked into, but obviously I realised that if it was that closed a shop that is like the Police trying to investigate itself which is not something that has worked out that well in the past. You bring in external bodies to investigate something, you do 615 not have yourselves investigate yourselves, because that is not going to go so well. That is what that feels like to me, it might not to you, but it does not feel right. And if he can be a president of it then it certainly has got to be not the right place to be going to have the investigation done. The rules need to be stuck to. I actually think that the rules are in place, it is very clear that the Deemsters give instructions on the directions hearings and those are taken note of and then 620 they appear to be totally ignored. The fact they have been totally ignored gets waived as long as eventually the court hearing goes ahead and we are now getting somewhere. But the effect of all of that is dragging everything out to the nth degree, not giving one of the parties the choice as to whether they think that it is fair for the time to be extended – you might want to get on with your life. I have been in quite a few of these hearings now, of these court 625 cases, and I have seen it over and over again where it is just brushed off as a thing that happened, ‘But moving on, we shall now do this’. Whereas I think, again, it should be one of these monitoring situations where if habitually the times that are set by the Deemsters perhaps when they are doing their directions, if they are not stuck to then that needs to be another point on the monitoring system and then you would soon start to see the graphs pointing in 630 directions.

Q20. The Chairman: Just picking up on that, Mr Cleator, on that delayed time limits, not submitting things in time so not complying with the directions you are given by the courts, I mean it is possible that that can happen and it does not really have a big impact because it is a 635 small thing and you are a day late or something. It is also possible you could be weeks late and

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what you generate is very significant or you leave out very significant information that puts the other party to a lot of time and effort and cost. So there is a spectrum of impact when people do not comply with the directions the court has made. In your experience, have you seen that that has been addressed in any way? Because the 640 classic way to address that is also through costs at the end. When somebody has put the other side in a piece of litigation to a lot of extra time, expense etc. the way that can sometimes be addressed, as well as looking at the advocate’s actual behaviour, is to make it very clear that that should not have happened and a costs order is made. But that has not happened in your cases 645 Mr Cleator: The cost orders against me have been astronomic. They are life changing.

Q21. The Chairman: But they have not taken –? (Mr Cleator: No.) There has been no weighing up of these facts? 650 Mr Cleator: They mentioned it. My advocate in this instance had to be late a few times but he wrote to the courts and requested or said, however they work, he wrote in and said he was going to be late. The other advocate is late and then apologises for being late. There is a big difference. Okay. 655 Certainly going by the size of the costs that they think are fair, I cannot see any allowance for that whatsoever. In fact, the costs are just ridiculous. If somebody is going to apply for adverse possession of a piece of land then as far as I am concerned if they get that land they can pay for the costs because the person who owned the land and has tried to fight for their own land has lost so much and probably had to fight their corner so hard they have already been absolutely 660 wiped out, which is certainly what has happened to me. I think there is a case called, and it is actually used, Pogue v Woodrow 2005, that gets used as case law now. Well that Woodrow person is the person that is fighting still … the son of the father, he is still fighting for justice because of what was done to his family because of adverse possession. I do not know him, I would like to meet him because I would like to shake his hand. 665 There is a situation where they presumably considered themselves as being the owners but somebody else came along with a stronger case, used adverse possession, managed to twist it around and it is a landmark case and it has been used, I could not tell you which parts of it have been used against me. I see it in the –

670 The Clerk: Law reports? The skeleton argument?

Mr Cleator: No.

The Chairman: The bundles. 675 Mr Cleator: In the bundles, yes. The things they refer to – I cannot remember the word.

Q22. The Chairman: Do you have anything? Just on the equity of arms point again, we have talked about legal aid and you have explained 680 the circumstances and you were not eligible, is there anything else that you have considered through all of this that you think might make a difference in terms of equity of arms as well? Any other systems you have become aware of or any other ways you think it is possible to address this concern that someone in your position feels that there is an inequality of arms dealing with this sort of case? 685 Mr Cleator: I was never advised that it would end up like this. So all that happened on day one was some people moved into the house at the top of my lane, they started knocking down a

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wall into a field opposite which at that time was one of my boundary walls, because although it was in front of their house it was one of the boundary walls. I had a word with them. I wrote 690 them a letter, I asked them to stop knocking it down. They carried on knocking it down. As I did mention, somewhere my field had actually been sold around the same time as the house using the same estate agents because I had an arrangement with the previous owners that we would try to sell the properties together. I did not particularly need it. I have got better things, as you know, to be getting on with than that down there. It would have been a nice little 695 windfall, to be honest, and everything was going okay. They moved in, started knocking this wall down into – when you read this you will know what I am talking about – somebody else’s field. I was already with the lawyers with the agreement for sale for the field and that ended up being stopped by a caveat. The field had a caveat put on it three days after the registration of their house. So I did not realise, I did not know that it 700 happened at the time, that it was three days after the registration of Green Hills, this house. Obviously I have worked out all of the machinations since then. But the caveat was on my land so my lawyers were working to try and have that caveat removed. I had a meeting about it and I have given you some information to do with that meeting as well, trying to get it removed. It was very clear that that particular person was trying to claim that I did not own my piece of 705 land. He had actually been in touch with me before trying to steal it, trying to claim that he owned it and this business at the top of this lane is the way that that has actually – or that is still in progress – that that has been able to be achieved. It is phenomenally complicated. It is a very clever plan. So when I was going through the, what is called, restoration of status quo process that my 710 lawyers had to apply for one week before, again, a limitation period of six months … for the restoration of status quo on the Isle of Man, while that was in progress I dug out the registration application for the house at the top and gave it to my lawyer. He noted that they had tried to register this little piece of land that we are talking about, the access to my lane and field, and they had registered their house with absolute title, they had ignored the burdens that are 715 required for me to get to my lane – that had all been missed out – which had been in all the previous deeds, but they had also, this little square had been registered separately with absolute title. So my lawyer wrote a letter to the Land Registrar, as anyone would do, objecting to that registration of absolute title where they are saying they have absolute title to the top of my 720 lane. All right? And that is how we have ended up here. So I have not been contacted by the Land Registrar and told, ‘Actually I think you could lose this by adverse possession.’ My lawyer was fighting absolute possession, and if it goes to court you expect, ‘Well I have got all these deeds so it is cut and dry.’ In fact, that was a phrase used by my lawyer: ‘It is a very simple cut and dry case. There are the deeds. These deeds go back further than those deeds. Job done.’ But 725 this has been twisted around to this adverse possession, possessory title argument in court. Four-and-a-half days later and £80,000 of costs against me – it is not quite that because of the percentage knocked off – plus the nearly £50,000 to my lawyers. So from one piece of paper into the Government it ends up being pushed up to the Land Commissioner and, honestly, reading the judgment it feels like the Land Commissioner took a 730 disliking to me as well. It is sickening to read, to be honest. So I think every possible effort should be made at the Land Registry stage because it is the Land Registry that has got control of this. Every possible effort should be made for it not to go to the Land Commissioner. Perhaps you might consider the courts to be arbitration but certainly not once you have got to get a lawyer involved; that is not arbitration, that is extortion – legal extortion. 735 So if there is something that is going to raise such an ugly head as this it needs to be dealt with at the Land Registry stage, not be sent straight up to the Land Registrar. If there are systems in place to stop that happening they certainly are not being used. I have not been advised of anything. Quite simply, via my lawyer, we objected to registration – already trying to have this caveat lifted, already having to fight, which did not go to court, a restoration of status

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740 quo hearing and then that wall got rebuilt. I then went to court unrepresented with Deemster Doyle and was given my costs because I could not have even continued to now if I had not done that. Then the registration in the Land Registry of absolute title for this little piece of land has been pushed up through the courts, 3.7 m2 of land has ended up in £150,000 worth of costs, effectively. 745 It is just not equitable, it is not right, it is not fair. It is just out of hand and it seems to me that the root of the problem is in the Land Registry because there is a stage missing. It should not have gone to court. But it was going to go to court, as from when you read this there is more to this. So it was going to go to court because of the man I am ultimately against. It was going to go to court no matter what and that is the attrition element. That is the vexatious … Point 2, I think, 750 on the Petition: it can be demonstrated that there is a culture of serial or more accurately parallel litigation being practised on the Isle of Man overwhelming the courts and administration by those who would utilise this inconsistency in Manx law for their own aggrandisement of property and position. That is all proven in everything you see. Parallel litigation is because I am not the only person who is suffering this at the moment and 755 all you have to do is look in court listings and you will see a certain name popping up time and time again. Whether it is one of his companies or whether it is him on his own, it is there, it is happening and it needs dealing with. I have said it there and it is parallel, it is not serial which means one after another, it is parallel which is all at once. Everybody is getting hammered. On top of that, that is being supported, that attitude towards Manx law and misuse of Manx 760 law and knowledge, that you can twist it and turn it and abuse it, put things in late, mislead the Deemsters, submit incomplete or inaccurate documents to court, say whatever you like, pepper gun approach, scattergun approach to documentation to have, I think there were, something like six folders in front of me when I was being cross-examined – six! My father was there; he was up there for four or so hours, five, four-and-a-half hours. He could hardly stand and he is 765 having to stand to open up his folders. It is just ridiculous. My lawyer had a sack truck in order to carry everything that was required. It just looks ridiculous for something as small as this. So you have got a situation where it is happening. Somebody can afford to do it and because the lawyer knows what he can get away with through lax sticking to the rules and he knows he is not going to be brought up against anything, it just carries on, which is why then you have got 770 point 3 there: monitoring. If you monitor it, it will stop; if you do not monitor it, it will carry on. I do not think monitoring takes that much, it just takes somebody with a brain to read each judgement and spot … if the Deemsters know then the Deemsters could highlight them for you: ‘There’s one. There’s one. There’s one.’ Add it to the list, put it on a database, produce a graph. If something is getting out of hand do something about it. In general you have got the Fraud Act 775 to back you up on all of those things, but you have not got any monitoring.

Q23. The Chairman: Mr Cleator, thank you for everything that you have said so far. The one other thing that you have mentioned, I think, and highlighted to us is the Senior Courts Act which again is a UK Act in 1981 which you have suggested we look at from the point of view of 780 managing the issue of a vexatious litigant. Is there anything you want to say to us about that or point us –?

Mr Cleator: No, I have not read it in detail. That is something I looked at that seemed to be the Act in the UK that deals with this and they have got processes in place which I just cannot 785 bring to mind immediately. But I did read it. I did not think it was sufficient because I thought it put too much of the onus on people like me to actually draw attention to it. I think people like me have got better things to be doing than drawing attention to people being vexatious and what I have named parallel litigation. All I can do is my best and point out that it is happening and suggest the way I would think of 790 it as somebody who knows about IT – and I computerised the Deeds Registry once – but I would have this in a database – a very quick … You have got IT people, just have somebody read these

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rules, keep a list, once you have got a big pile of them you can approach the perpetrator. ‘What are we going to say?’ Well, what I would prefer you did was just referred it to the fraud squad: ‘There are the rules. Go.’ It does not need any more than that. It is not much more complicated. 795 If the Deemster has already said it then you have got a ruling, haven’t you? If it was not true the Deemster would not have said it. Is that not the case? Or we could drag it out forever and have court hearings till the end of time and they just carry on. But it needs dealing with before it gets any more out of hand.

800 The Chairman: Mr Robertshaw, would you –?

Mr Robertshaw: No.

Mr Cleator: I have worn him out! 805 Mr Robertshaw: Not at all.

Mr Cleator: You have got me going now!

810 Q24. The Chairman: There was not anything else particularly that I think as a Committee we wanted to ask you about today. Obviously we would be grateful to receive your written statement and thank you for the paperwork you have sent us. If there is anything further that occurs to you after today’s hearing that you think the Committee should be aware of, whether it pertains to your circumstances or 815 ideas or information you have had about things that could be considered for the future, please do write to the Committee with that information. But thank you very much. I appreciate you coming in today, Mr Cleator, and giving evidence to the Committee. (Mr Cleator: You’re welcome.) Is there anything finally that you wanted to say before I bring the hearing to a close? 820 Mr Cleator: I don’t think so, if we have covered the points in the original Petition and I think I have spelt out there is a lot more to this than I think we have discussed here, but that you are going to see. I do not expect this Committee to do anything in two minutes or even two months, it could be two years. I would hope that an awful lot more people will find out about the 825 Committee and come forward because there are three very serious things in here that should not be treated lightly and are important for the Isle of Man, and if we can sort this out then it may well be that the Isle of Man actually creates a precedent for the rest of the country, for the UK and beyond, where we might actually be leading the way. Certainly the Senior Courts Act did not deal with this the way I would want it dealing with. 830 Have a read of that and you will see that there is something in place. We have got nothing in place; they have got something in place that I consider inadequate. What I have suggested is a much more modern way of dealing with something once it has been extracted from each hearing which nobody has suggested before, I expect: extract the key points, not to do with the hearing but to do with the judgment, specifically focusing on the professionals. Because if you 835 cannot control the professionals, if professionals can be sought out that will do and say anything then the people with the money will always be able to get what they want in the end because the money will not stop and the professional, if the money keeps getting paid to him, also will not stop. So the only way is by dealing with that professional and doing that; allowing their own committee to control themselves is not the way, because these are very clever people – some of 840 the most highly trained people in the country. They have been through absolutely everything and they think – some of them, not all of them – some of them definitely think they are above the law and that definitely needs changing and it is absolutely clear and you are going to see it. You will see it.

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The Chairman: Thank you. Thank you very much. 845 Mr Cleator: You are welcome.

The Chairman: I am going to bring the hearing to a close and the Committee will now sit in private.

The Committee sat in private at 5.06 p.m.

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24th July 2020: Evidence of Mr Nick Arculus, Land Registrar

71 72

S T A N D I N G C O M M I T T E E O F T Y N W A L D C O U R T O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L B I N G V E A Y N T I N V A A L

P R O C E E D I N G S D A A L T Y N

Constitutional and Legal Affairs and Justice Committee

LAW OF ADVERSE POSSESSION

HANSARD

Douglas, Friday, 24th July 2020

PP2020/0164 CLAJ-AP, No. 2/2020

All published Official Reports can be found on the Tynwald website:

www.tynwald.org.im/business/hansard

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © High Court of Tynwald, 2020 73 STANDING COMMITTEE, FRIDAY, 24th JULY 2020

Members Present:

Chairman: Mrs J P Poole-Wilson MLC Mr L L Hooper Mr C C Robertshaw

Clerk: Mr R I S Phillips

Assistant Clerk: Mr P Smith

Contents Procedural ...... 23 EVIDENCE OF Mr Nick Arculus, Land Registrar ...... 24 The Committee sat in private at 12.18 p.m...... 46

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Standing Committee of Tynwald on Constitutional and Legal Affairs and Justice

Law of Adverse Possession

The Committee sat in public at 10.32 a.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MRS POOLE-WILSON in the Chair]

Procedural

The Chairman (Mrs Poole-Wilson): Good afternoon and welcome to this public meeting of the Constitutional and Legal Affairs and Justice Committee. I am Jane Poole-Wilson MLC and I chair this Committee. With me are the other members of the Committee, Mr Lawrie Hooper MHK and Mr Chris Robertshaw MHK. We are assisted today by the Clerks of the 5 Committee. The Constitutional and Legal Affairs and Justice Committee is a Standing Committee of Tynwald with a wide scrutiny remit. On 5th July 2020, Mr Cleator submitted a Petition for Redress to Tynwald concerning the law on adverse possession arising out of his experience with a legal case over disputed land ownership. In November 2019 Tynwald Court referred this 10 Petition to this Committee. Today we are taking evidence from the Land Registrar, Mr Nick Arculus. The Petition asks the Committee to inquire into three areas, which I now summarise: (1) the Isle of Man Land Registration Act, particularly in relation to the Adverse Possession Rules; (2) the creation and monitoring of a system to ensure that it is not possible for financial weight to 15 overwhelm a person’s right to a fair hearing; and (3) the creation of a system to recognise misuse of the legal system, vexatious litigation and financial intimidation, and to penalise litigators or their advocates for employing tactics amounting to sharp practice. The Committee’s attention is drawn by the Petition to the Senior Courts Act of Parliament 1981, with a view to introducing similar protections against vexatious litigation on the Isle of 20 Man. These points in the Prayer of the Petition are serving as the remit of this inquiry. It is important to bear in mind the principle that Petitions for Redress are not allowed to act as a mechanism for appeal from decisions of tribunals or courts. The Committee will avoid seeking to rehear any legal cases but will concentrate on the specific remedies sought in the Petition. 25 Before we begin could I please ask everyone to ensure that any mobile phones are off or on silent so that we do not have any interruptions. For the purposes of Hansard I will also be ensuring that we do not have two people speaking at once.

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EVIDENCE OF Mr Nick Arculus, Land Registrar

Q25. The Chairman: Mr Arculus, thank you for attending today and for submitting in advance 30 answers to the questions raised by the Committee. It is not our intention to ask you to read through those answers this morning as those answers will in due course be published as part of the Committee’s report following this inquiry, but what we would like to do is explore with you some of the areas that are covered with some additional questions.

35 Mr Arculus: Of course, thank you, Chair. Yes, anything I can do.

Q26. The Chairman: Thank you. So perhaps for the record, actually, and for assistance for the rest of this morning’s evidence session it might help if first of all in simple terms you could just explain what is actually meant by 40 adverse possession?

Mr Arculus: Of course. I will begin by saying that the term ‘adverse possession’ by its nature carries with it some sort of suggestions that it is pejorative. The legal profession has done a lot in the reasonably recent past to try and move away from the language of adverse possession but 45 really no suitable substitute is found. The reason I make that point is that, yes, adverse possession connotes this extinctive nature of ownership but it also carries with it the ability for a new, productive owner of land who is not otherwise able to demonstrate title, to demonstrate his ownership to that land. So I make that point initially to say that there are positive aspects as well as negative aspects just within the expression ‘adverse possession’. 50 Adverse possession in principle is the way that an occupier of land who is unable to provide the usual documentary route of title contained by deeds is able to show that for a period of 21 years, in this case, he has enjoyed possession of that land without secrecy, without payment and without objection from any other party using that land as if it were, as a matter of right, his land. That is the first sign of adverse possession, the work being done by the possessor. 55 The Petition then deals largely with the operation of the Limitation Act, as the extinctive quality of that act of possession. I apologise to a degree for the length of the response I gave to the Committee previously, it is quite a complex issue to explain, but the Limitation Act is purely extinctive. Usually, people have a period of 21 years to repossess land that they are concerned they are losing control of because someone else is in an unauthorised occupation. If at the 60 expiry of that 21-year period no efforts have been made to effect repossession then the right to recover that land is extinguished as a result of the Limitation Act. That, in a nutshell, is adverse possession: one party takes possession, the other party loses possession.

Q27. The Chairman: Thank you. 65 Can I just explore with you something there, which is something I just want to get clear on the record, which is that you have talked about the two aspects which is the extinctive element and then obviously there is the acquisition element – so just the fact that title has been extinguished does not automatically then give somebody else the acquisition. Have I understood that correctly? They have to take action to acquire that land? 70 Mr Arculus: There are two regimes of land tenure in the Isle of Man: there is the unregistered system and the registered land system. So for the Land Registry – and that is principally my responsibility there – to recognise that a possession adverse to another title has been acquired we need to have an application that comes into us before we can put that on to the register. The 75 prior practice in the Deeds Registry would be to find ‘language in deeds’. So, sorry, to answer your question: if someone finds themselves in acquisition of land for 21 years without opposition to any other party, they would not need to make an application into

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court to establish they would have adverse possession. However, if there was any subsequent dispute about ownership that would be a matter for resolution by the courts. The resolution by 80 the court is a judgment – I think the courts can go beyond this, but the resolution that the court would resolve would tend to be the resolution between the party claiming possession and a party that is claiming that it has lost out. The court would then issue a judgment by the way deciding who has got the better claim, but nonetheless that court decision does not do anything to upgrade that title in the way that the law works relative to the Land Registry, in that title 85 evidence in deeds is relative between … The expression is that ‘title evidenced in deeds is good against the world’, other than someone who is able to demonstrate better title. So you could have a situation where a court hearing takes place between party A and B, the court holds that particularly A has got the better title to party B, but what the court is not necessarily saying is that party A has better title to the 90 land than anybody else in the world. The operation of the Land Registration Act effects an upgrading of title – talking in generalities – to a status of absolute title; and the situation there is that that title is ‘good against the world’.

Q28. The Chairman: Thank you. 95 So would it be possible for party A to occupy land for 21 years and extinguish somebody else’s title, and then party B to come along and occupy that land for the next 21-plus years and extinguish party A’s title?

Mr Arculus: Yes. 100 Q29. The Chairman: And it would only be at the point that a dispute was raised that somebody would try and arbitrate as to whose title is best, albeit from the Land Registry’s point of view it would not be necessarily absolute title, if that makes sense?

105 Mr Arculus: It does make sense to me. To elaborate on it a bit, once someone has acquired by adverse possession under the pre- registered system, that does not operate to guarantee their title and it could be the case that someone else is acquiring adverse possession against them at the same time. Now, obviously, you would get into evidential difficulties in demonstrating the required level of exclusive 110 possessory control if there was also somebody else that was also obtaining possession adverse to your rights at that time. There are very different classes of estate in land so it might be conceivable, for example, that someone could be acquiring an adverse possession of the freehold estate in land, while somebody else is busily acquiring adverse possession of the leasehold estate in land. This does not happen, but theoretically it is possible. 115 Q30. The Chairman: I suppose what I am also getting at is that my understanding of the justification for having the concept of adverse possession is to avoid a situation where somebody may have paper title but completely neglects their land, and somebody else comes along and occupies and uses it. So it is almost an economic argument in part that if there is a 120 disconnect between paper ownership and actual use of land, that is one of the justifications for having the principle of adverse possession. But actually just because I have occupied the land for 21 years and used it, if I then allow it to fall into neglect and someone – maybe even the original paper owner – comes back and starts using that land exclusively, the theory of adverse possession says it should then attach to the next person if I have then ceased to use that land 125 and somebody else comes along and uses it?

Mr Arculus: That is correct, Chair. The point there is that a previous paper title owner who has been dispossessed – by which I mean is no longer able to bring an action to recover the land – may nevertheless start acquiring

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130 that land by possession again by reoccupying. Their prior written title does not confer on them any sort of accelerated route to repossess the land. But it is worth saying that when you take possession by adverse possession it does not override any other’s existing rights. So we would still be looking at the original paper title documents, irrespective of who the paper title owner was, to work out if there are any burdens or pertinences attached to that land. 135 I may point out also if I may, Chair, that it does not necessarily need to be the same party that is taking occupation for the whole of that 21-year period. It is possible, for example, for someone to have acquired land in good faith expecting that it includes an additional parcel of land, and then to use that land as a right for a period of 10 years and then sell their ownership of that land together with their ongoing claim for adverse possession – in other words the right 140 that is in the process of being acquired in line with the Limitation Act – to another party. The way that often manifests itself in the deeds system is the language of … Parties will sell their land which they acquired from this deed, parcel 1, and they will also be selling all the right title interest ‘(if any)’, that they have acquired another parcel of land. Now, that ‘if any’ is quite a difficult thing for us as lawyers to bring certainty to. It is a little bit 145 like expressing to somebody that you are very sorry to the extent that an apology is necessary ‘if any’. It is a kind of backhanded way of giving an apology; and similarly it is a statement that lawyers have investigated the title as best to their ability, but they are not able to reach any conclusion as to whether or not the owner does have title, which is why they use that language. The process in the Land Registry is then for us – if I can go on to that – to make a judgment as 150 to that language ‘all the right title interest (if any)’ which must mean something, if not ownership at least evidence of some kind of control; and whether that statement can be supported by extrinsic evidence – so whether that is a chain of affidavits or statutory declarations from previous owners confirming that since 1979 they or their predecessors in title have been in occupation of that land. The Land Registry then effects, effectively, a cure to that, 155 removes that ‘can’ – so it is capable of removing that title blemish and awarding either absolute title or title possessory to that land. And this is perhaps where the Land Registry, in my opinion, comes in for some unwarranted criticism, in that we are perceived as generating disputes in land, where in fact what we are doing is being required as a result of our statute to draw out pre-existing disputes in land that exists in the deed system and actually bringing resolution to 160 those. So in terms of the economic benefits of adverse possession, Chair, which, going back to your point, that is one of the reasons to ensure that land economy is as productive as it can be. A second justification for adverse possession tends to be that, as Deemster Cain said in his Kenyon judgment, in the absence of any deeds how else is it possible for somebody to acquire 165 land? So where there is a sort of unspecified boundary but both parties claim it, because of double conveyancing, but one party can demonstrate the greater level of control and occupation, then title is assumed to exist. So it is also a way of resolving boundary disputes. Then it is also conceivable that somebody can demonstrate that they have been in occupation of land but they have no deeds for it and there are no deeds that exist. 170 The system of registration of deeds in the Deeds Registry is a voluntary process and in any event there is no objective review as to the content of those deeds that come in. So a deed could be submitted between myself and Mr Hooper, me expressing to transfer ownership of Calf Island. I do not own Calf Island so it would not have any legal effect, but that does not mean that in 21 years’ time somebody might look at that and think, from that, that a conveyance has been 175 performed and they would then have to start investigating backwards through the title. So the Deeds Registry itself does not confer title, it is only a repository of evidence. If there is no evidence contained in the Deeds Registry then other evidence can be submitted to support a land registration application. And that also, in terms of law would be deemed to be adverse possession because it is adverse to anybody else, rather than it being adverse to a specific 180 identified owner.

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Q31. The Chairman: So what I am hearing is what an imperfect system the unregistered land system is.

Mr Arculus: The Land Registration Act was brought in in 1982 and then made operational in 185 1995 to address the issue identified by Deemster Cain, and I have certainly referred to it in the wording in my submission, but I will just read it out because it is quite telling.

Q32. Mr Robertshaw: What paragraph are we on?

190 Mr Arculus: I am just actually trying to find it, sorry, Mr Robertshaw.

The Chairman: I think it might be paragraph 1.1.11.

Mr Arculus: No, I referred to that one previously. Thank you, Chair. 195 There is another reference I have made in the same Kenyon case. The effect of it is that Deemster Cain states that until such time as an average … Here we are, I have found it, at 12.5. In passing judgment in the re Kenyon case, Deemster Cain, as he then was stated that:

The system of registration of title under the Land Registration Act …

– which was at that point in the advance state of preparation –

… will … provide for purchasers of land a guarantee that what they believe they have bought, they will in fact own.

And these are the important words:

Unfortunately, the present system of conveyancing cannot provide that guarantee. This case illustrates the defects of the present [unregistered] system.

200 That particular case was a case of a kind of land dispute, but also it raised some common rights over a meadow field where, from recollection, I think both families that were involved in the dispute could demonstrate that they had used it and neither could demonstrate ownership. It was a very difficult case for Deemster Cain, and I forget how it was resolved exactly. So the point there, yes, is that the deed system is a relative title and even though you can 205 demonstrate a title going back 21 years, which was the basic requirement under the Conveyancing Act, it does not necessarily follow that that title is good against the world. The Land Registration Act is similarly not perfect … No system that regulates ownership of land – land by its nature is fluid, boundaries change, rivers can cut paths through land that did not previously exist; shorelines can move; features can be moved. So there is a degree to which 210 the common reification of property in land as a thing rather than a bundle of rights that people are able to enjoy, leads to a confusion as to what the Land Registry is doing. But the relative merits of a system of land registration which guarantees ownership of title if not boundaries we, like all the other land registries in the British Isles and I believe the Commonwealth, operate a system of general boundaries where we do not actually guarantee the exact location of 215 boundaries. But we do guarantee title and that is a state-backed guarantee of title. The advantages of that are that people are able, with certainty, to acquire land and to know what their rights are. Now, worth adding that once you have acquired absolute title by registration, it is still possible nonetheless to acquire adverse possession against that registered owner. The logic 220 behind the principles of adverse possession of unregistered land are a little bit more difficult to apply to registered land, in the argument that no one knows who owns it is simply not true, because if someone does know who is the legal owner we can make contact with them. And it is harder to justify why somebody should lose ownership of land once they have gone to the Land

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Registry, using the apparatus that the Government has provided, and obtain an absolute title to 225 that.

Q33. Mr Robertshaw: Where are we up to in terms of getting our Land Registry covering the Isle of Man, saying an urban or rural sense expressed as percentages? Where are we?

230 Mr Arculus: It is difficult to say, unfortunately, because it depends whether you want to adopt a percentage model by area or a percentage model by title, because some titles are vastly bigger than others. For example, were the Government to register its upland estate that would change the percentage balance of registered land and non-registered land by about 13%, or however large that Government estate is. 235 We tend to say – there is a large degree of estimation in this – that we are probably about 30% registered in terms of titles. Now, that is not actually as bad as that sounds … Land Registration came in 2009, and what that tends to mean is that those titles which are more likely to change hands – because that is a trigger for registration – they by and large have occurred. So our workload is now we are at an important stage where we are just tipping the balance 240 between being a land registry that is principally engaged in the process of sporadic adjudication, where we are compiling the register, to a state where the very narrow majority of our applications are now transfers of registered land. So what that really means is that you could look at it as we are halfway there.

245 Q34. Mr Robertshaw: We were looking, in our discussions prior to this, at creating other triggers that would accelerate the rate. Would you like to comment on those thoughts?

Mr Arculus: That is a policy decision, of course. There are certain gaps to registration at the moment that mean, with the existing triggers in place, we are in all likelihood never going to 250 complete registration (Mr Robertshaw: Exactly.) of the whole estate. Now, obviously to me, all- Island registration would be of enormous benefit and virtuous in itself, to the extent that my own view is that the whole apparatus of the Isle of Man Government ought to be geared towards this one purpose of completing the register, (Interjection by Mr Robertshaw) and hopefully the Committee will conclude the same in their recommendations. 255 But once, for example, we have registered all the people that are in leasehold accommodation – and that is long leasehold, perhaps a 99-year lease, so effectively a freehold – the freehold to that estate is simply not being sold. That would mean that it will not change hands and we will not end up with a complete register. At the moment the triggers are effectively a sale for value. In the UK and Ireland the triggers also include any disposition where 260 legal interests change hands. So that would include, for example, a new mortgage being taken on the land. It would include transfers on death. To me, there is a very strong argument that can be made for updating the triggers – because these have not been reviewed, or rather, they may have been reviewed, but they have not been changed since 1982 – so that those other types of transactions do make it on to the register. 265 At the moment, unregistered interests are that they bind you as purchaser whether or not they are on the title. So, for example, a residential lease of 20 years is something that would be effective against you as a purchaser of land even though it is not on the register because the trigger for registration is a 21-year lease. The reality is that if you are buying a property and there is somebody in possession under a 270 20-year lease then you are likely to actually become aware of that; but, at the same time, that is a very long interest to be overriding the effective registration. So in England if you grant a lease of over seven years, that triggers registration. It could also be that policy arguments could be advanced, but that could also have some merit. But from my point of view, purely from the view of populating the register, and of course increased triggers are going to make that job easier, I 275 think that is worthwhile.

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Q35. Mr Robertshaw: If, after this hearing, you think of any other areas where you might want to suggest triggers perhaps you would be kind enough to write to our secretary and identify those please?

280 Q36. The Clerk: Are there any practical obstacles to having a much wider range of triggers so that you include the freeholder, even where there is a very, very long lease and so on – actually for which there is a good practical argument, isn’t there?

Mr Arculus: Are there any disadvantages? 285 Q37. The Clerk: Are there any practical difficulties or obstacles that as an operation you would face?

Mr Arculus: Well, obviously, each title takes work to put on the register. So there is that 290 burden. But against that a great deal of our time spent in not being able to serve notice on parties that may have interest in land would be removed if we were able to have contact details on the register, and actually contacting people directly and know that we are dealing with people who have got interest. So, for example, dealing with the subject matter in front of us that the Committee is talking 295 about here, when there is an application for a possessory title – unregistered land becoming registered land, or when people are claiming a right of way across land that is unregistered so we do not know who owns it – there are processes in place where, in accordance with the will of Tynwald, we serve notice to those people that may be interested in that land. It is obviously difficult for us to identify that so we require newspaper adverts, notices to go up on the site and 300 notices to be sent to neighbours. There is a whole range of different devices that we can do, but obviously that takes time. We have adopted a 21-day notice period – many people think that might be too short, which is fine – but obviously the more we introduce 21 days, or 42 days, the longer that then takes to complete a registration application. So once the register is entirely registered, we will not have to be guessing or making efforts 305 to contact parties unknown that may have an interest in land, because everything will be disclosed. In fact there is a strong argument that the greater the coverage of the Land Registry, that it will not be incumbent on the register to do that at all, because if a purchaser for value cannot be bothered to find out if he has got rights over this neighbouring land that is registered, then it is not our responsibility to tell them, you could argue, and they ought to be using the 310 available resource themselves. I do not know whether I have answered the question, actually, but I am doing my best to.

Q38. The Clerk: No, no … Because obviously the question of triggers is something which the Committee is thinking of and I am giving you the opportunity to say, ‘Yes, but don’t go too far’. 315 But you are clearly not saying that because –

Mr Arculus: No, I am not saying that, but others might. The argument about leases is that perhaps if we went from 21 to seven that would be a quite sharp jump and it does tend to have an effect on registration practices. So in the Isle of Man, for 320 example, many people will grant a 20-year lease to avoid registration of a particular interest.

Q39. The Clerk: Why do they wish to avoid registration?

Mr Arculus: There is a perception that the act of requiring people to register land creates a 325 greater burden on the advocate acting for them, which has a knock-on impact on charges.

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To my mind, for technical reasons, the burden to be satisfied in registration is actually lower than a prudent advocate acting for a purchaser should be trying to demonstrate. (Two Members: Yes.) Mrs Poole-Wilson is nodding. So just to elaborate slightly further: when an advocate is acting for a purchaser they are 330 required to show that someone has good and marketable title to the land. My concern is different, I want to know that someone has got a safe holding title, which is a different legal test and it is a lower test; and accordingly if you have done the work you ought to have done, to sign a certificate of title to your bank or to your purchaser that you will be acquiring a good and marketable title, then aside from completing some additional forms that do have to come our 335 way and that are not involved in the normal conveyancing process, there really is no additional work.

Q40. The Clerk: Plus you would only do it once – for that property.

340 Mr Arculus: Well, you only do it once is as far as examination of title goes, so once the title is on the register you no longer need to conduct the very laborious process of title examination and producing petitions in the first place. That is not to say that going forward there is no place for advocates in the conveyancing process, because what they are doing is a lot more than just looking at the title – they are also trying to find out all those interests that do not appear on the 345 register of title itself. So, for example, the question of boundaries that we do not guarantee, it still remains incumbent on a prudent purchaser to satisfy themselves as to that point. Registration is in itself, to my mind, meritorious and brings certainty. Why would you not register something? It only brings you certainty.

350 Q41. The Clerk: And registering other things like a planning application that is successfully granted that attaches to the land and so broadening out the purpose of the register, is that something that would make you feel uneasy or would you welcome it?

Mr Arculus: That would make me uneasy to a degree, but I think what you might be referring 355 to is our new Title Locator product which is on our website which enables you to see the extent of the registered estate, so you can find if your land is registered or not. There is also a Government platform called MANNGIS that holds, in various forms, information relating to land that the Government holds; for example, planning data is held in a geospatial format and we use the same geospatial format to hold our register. So more could be 360 done, if I am following you correctly, to make it easier for the individual to discover everything the Government holds about land in one simple go. (Interjection) But we are a very long way off from that at the moment. The Land Registry has endeavoured to make certain steps towards that. So if you look at our Title Locator product we also have a few other layers that you can look at – the historic maps 365 aerial imagery. It would be nice if a product – and whether it is Land Registry-led or whether it is GTS-led, or DOI-led – it is not really for me. It would be possible to produce the sort of land information system that members of the public or conveyancers could use to find out exactly, just to know more about the title they hold to land. But at the moment I suppose while it would be welcoming towards the triggers if the Land 370 Register itself was to become a repository for all sorts of other information about land that I had to somehow make official … I do not know very much about planning law, for example, and I know less about agricultural subsidies, and what have you. So what I am saying, I suppose, is that the Land Registry and the output the Land Registry generates is one product, one part of the conveyancing process. All the other parts also need to be conducted. More could be done in 375 a way I think probably for the future to produce a more streamlined process for that, as there is in other jurisdictions.

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One of my driving thoughts is that when I do have to make a decision about title, I have available to me all sorts of additional pieces of information that advocates or members of the public do not have access to – 380 Q42. Mr Robertshaw: That brings me on to a question, because obviously as elected representatives we represent the public and the question therefore I am bound to ask is: all right, combining all these systems into one glorious place is, you say, a long way away; but is there no way where you think we could perhaps provide a website that allows the public to go 385 to one place and there is a list of sites that they can visit to establish a better understanding of the land they have an interest in? I mean, that could not be too complicated, surely?

Mr Arculus: Right. I am perhaps not as technically savvy as you are, Mr Robertshaw. (Interjection by Mr Robertshaw) (Laughter) I do not know how technically challenging that would 390 be, but the movement of the Land Registry on to the same mapping system that the Government has used, the MANNGIS platform that DOI prepared, that step was taken predicated on the idea that it would be possible eventually to move towards …

Q43. Mr Robertshaw: But I am talking about a halfway house, because I understand the time 395 and expense of the ultimate aim being just not available to us now. But it is worth examining anyway, that idea.

Q44. The Chairman: Just before I forget and before we move on, because I know Mr Hooper wants to come in, you mentioned there are more streamlined systems in other jurisdictions. 400 Without going into all the detail now, would you be able to write to the Committee afterwards with any examples of other, more streamlined systems that operate elsewhere so we can at least have a picture of that?

Mr Arculus: Yes, I could tell you in a few seconds if you would like? 405 The Chairman: All right. Yes!

Mr Arculus: I trained as a conveyancer in England and since the mid-1990s if you wanted to buy a property you would put it online and, if you had the right to go through a commercial 410 provider, the commercial provider would tell you immediately which conveyancing searches you ought to be raising in that particular area. So given a different expanse of the UK, there are certain areas you need to raise different inquiries into. My favourite is in the Forest of Dean, where my family comes from, that you need to raise an inquiry to the Deputy Gaveller to find out whether or not there are any rights to free mine under your property – not the Gaveller, but 415 the Deputy Gaveller. I am not even sure there is a Gaveller! But you would not know that unless you are familiar with free mining in the Forest of Dean. So you go online and map the area – I have gone on too long, sorry! – and immediately you get a list of those conveyancing searches that a prudent conveyancer ought to consider engaging in. Then by and large you select them, you pay and the application goes off and then you wait for all the searches to come back in. 420 In the Isle of Man, by contrast, there is not that initial platform – although the information is exposed in various places; but there is not that centralised platform and there is no method of getting unified searches permitted. But I am sort of straying into a bit of a pet project of mine, (A Member: Interesting.) so I will stop.

425 Mrs Poole-Wilson: Thank you.

Q45. Mr Hooper: Thank you very much.

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The question I was going to ask is: in the context of adverse possession you said it is harder to justify some of the arguments for adverse possession under a land registration system and that 430 the Land Registry provides, I think you said in general terms, absolute title. But in your evidence, specifically in paragraph 2.7 you have written that:

When a party is claiming adverse possession against land which is already registered the same limitation principles apply [as to unregistered land] and the act of registration and the government guarantee that accompanies it does not afford significantly greater protection to the registered proprietor …

My understanding is – and again you have set this out in your evidence that that is not the situation in the UK, for example, where it is actually more difficult to dispossess or to claim adverse possession over registered land, because of the way that the registry works in the UK. 435 So is there any way you could just summarise that difference up briefly for us?

Mr Arculus: Yes. In 2002 the Land Registration Act changed in the UK to the effect that the Limitation Act no longer operates against registered land. So in other words your right to take enforcement action against someone who is on your registered land is not affected by the 440 Limitation Act. That does not mean that there is no way to acquire adverse possession against registered land, but it is virtually impossible to do. What it requires is after 10 years of being in an adverse possession you are required to serve written notice to the registered owner. The registered owner then has two years to take the appropriate action to regain possession, or however you want to see it. So typically you can go to court and say, ‘I’m the registered owner; 445 please vacate my property’. Then the court will give the squatter an order to leave the property. And then that in itself, once you have got that court order, has defeated the claim to adverse possession that is arising.

Q46. The Clerk: So you really have to be asleep … 450 Mr Arculus: You have to be asleep, or not to have kept your service address up to date, because you genuinely do not care about losing possession of the land – and there are people for whom that … It does occasionally occur, but I say ‘virtually impossible’ because if anybody who is in the slightest bit paying attention to their estate and has got the correct service address 455 with the Land Registry – which is, again, the responsibility of the owner there – is going to be put on notice and has to really actively decide not to take action for that title then to be lost. Obviously that took a long time for the UK, for England and Wales, to adopt that process. The UK has had a system of land registration since around 1875 but it has been evolving throughout that time. In 2002 they moved the goalposts a little bit and partly in a way to make it more 460 attractive to hold registered land. To me the attractions of registration are voluminous but to other people they are less clear cut, and I accept that. But in terms of this particular article that once you are registered you cannot lose possession that was something as a policy that people could understand – yet another advantage in registration. The Committee may be minded to consider making recommendations that a similar process 465 could be introduced in the Isle of Man, because I would like to get more land registered, I would be very supportive of that …

Q47. Mr Hooper: But in terms of the Isle of Man at present, the system is such that whether the land is registered or unregistered if there is an adverse possession claim essentially you end 470 up in court, and there is a –

Mr Arculus: Right. So let me initially say that because the Land Registry opened in 1995 we have not had any applications to acquire registered land by adverse possession.

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Mr Robertshaw: But it is there … (Interjection) 475 Q48. Mr Hooper: I just meant purely in legal terms.

Mr Arculus: So purely in legal terms there is no distinction, saving that we do actually have the registered owner’s service details so they would be put on notice of any application and they 480 would then have the opportunity to object to it. In theory, though, adverse possession does not rest on any sense of secrecy so that the registered owner is known, or the unregistered owner is known, should not prevent the success of any adverse possession order tests that are satisfied. But it does mean that people are at least put on notice and in all likelihood would object. 485 Q49. Mr Robertshaw: But if we had the UK or the English and Welsh neo-de facto … absolute possession of land here, it would create another attractive reason why you should migrate to registration, surely?

490 Mr Arculus: Yes.

Q50. Mr Hooper: Okay, that brings us on then – if we are finished on that particular topic, Chair – to the way that the dispute resolution process works. There is obviously a different route between registered and unregistered land in terms of actually how you resolve these disputes. 495 The Land Registry has its own first stage process. Could you just outline for us briefly how that works?

Mr Arculus: Yes. An application is made. The initial threshold to be crossed is that every act of first registration must be accompanied by a certificate from an advocate that they have 500 carried out an examination of title. In theory, this entitles the Land Registry then to proceed to effect the registration applied for. If it was as easy as that we would not have any staff and it would just be a purely robotic process. But what that tends to trigger is if an application comes in that we exercise doubts about we will serve notice on various people; and in fact now, on the Title Locator I referred to 505 previously, all applications coming in are broadcast to the public at large so that everybody can now see that an application may or may not have been made on land that relates to them. So by hook or by crook people are notified that there is an application, and they then submit an objection to us. The first stage is for me to consider whether the objection is vexatious or without grounds 510 whatsoever, in which case you can conclude we reject the objection and proceed with registration. If we find that the objection is not without merit or vexatious, then the next process is either to conduct a Registrar’s title examination where we would have parties that are interested in the proceedings present and witnessing the examination of title as the applicant produced it – we do not in fact hold these, but it is a power that we do have – or we can hold a 515 hearing in the Land Registry, or we can direct matters to the Land Commissioner, Deemster Morris, for determination. What tends to happen is that the Act and the rules are a little bit quiet on what the nature of a Registrar’s hearing should be. Our practice has been wherever possible to keep those hearings on a reasonably informal basis, trying really to reach resolution between the parties rather than 520 it becoming contentious. But that is not always the case and more complex matters will tend to be referred to the Land Commissioner. That is the hearing process, really.

Q51. Mr Hooper: Okay, so you say that actually there is not really anything that sets down what a Land Registry hearing should look like. Does that cause problems? Does that cause 525 issues, with that having no formal status?

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Mr Arculus: It does cause one or two problems in that if you are exercising a power to ‘hear and determine’ – which is the language used in the legislation – you are under an obligation not to predetermine the outcome of any matter that comes before you. Now, depending on the level to which we engage with the applicants and any objector to try and find the resolution, a 530 compromise position with both parties, the more we are involved in that process the harder it is inevitably not to begin to reach your own conclusions as to the merits of the case. I personally do not think there is anything particularly wrong with that because the more information you have about a matter then obviously to determine it, the better. But there can be perceptions – if the matter then progresses to a fuller hearing – that you have predetermined 535 it. So they are the kinds of matters that are referred to the Land Commissioner. It is worth also saying that any decision that is taken at the Land Registrar’s level can be appealed to the Land Commissioner …

Q52. Mr Hooper: How does that appeal process work? Is it an appeal on a point of, actually, 540 that you have misunderstood the law? Or is that just a generic they can appeal for any reason at all?

Mr Arculus: They can appeal for any reason at all if they are –

545 Q53. The Clerk: Is it a rehearing?

Mr Arculus: It is a rehearing, yes.

The Clerk: Okay, so in other words you start again. 550 Q54. Mr Robertshaw: Part of the decision is very concerned about trying to avoid the whole matter ending up in an area which results in he or she with the deepest pocket ending up the winner. The issue is: how much can be contained in a more rational and common sense and fair process that is not expensive, rather than the opportunity always for the deepest pocket to win? 555 Q55. The Chairman: And excuse me, just coming in at the end of Mr Robertshaw on that point, is the nature of the Land Registrar hearing of an inquisitorial nature or does it end up being adversarial?

560 Mr Arculus: Again, in the absence of anything saying it is not inquisitorial, that is how I treat it, because we are examining title as we go along. We are the authority that is responsible for making that determination on what the title says. So it is not the case that we, as the courts would, be purely hearing evidence from party A and party B. We are also forming our own conclusions based on the title record. 565 Q56. The Clerk: So you are doing your separate research as an inquisitor?

Mr Arculus: Exactly. And the title examination process that is outlined in the Act is in many ways making it clear that there is this inquisitorial power for the Land Registrar. 570 Q57. The Clerk: But if you formalise that so that it would be like going to a coroner, the same idea, would you say that an appeal would not be a rehearing but would be on a point of law? Would that be helpful to you? Would it actually advantage the people who were seeking to get a dispute so that you would formalise it and make it much more a thing at the first stage, as 575 opposed to an informal kind of arbitration? (Interjection by Mr Robertshaw)

Mr Arculus: I do not know, is the answer to that. It is certainly a thought.

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In terms of the flexibility that I have in the existing system to determine whether the objection needs to be conducted as a formal full hearing or not, or whether it is the kind of thing 580 that can be dealt with by inviting the parties in and effectively giving them an explanation of what the content of their deeds say – that is often satisfactory. So, for example, people often object to someone’s registration of land, not because they do not think they own it but because they want to protect their own legal rights. So if we explain to that person that as part of the act of registration we will also be registering a burden across that land protecting your right, then 585 that often resolves the cause of objections. It is very difficult to say really, and personally I think that were we able to put, perhaps on a more statutory footing, the ability of the Registry or Registry staff to offer preliminary opinions without it prejudicing the ability to then hear that matter still as a Registrar hearing rather than requiring a referral to the Land Commissioner, that may be advantageous. But, that said, the 590 Land Commissioner is there to ensure that all the actions I carry out, as a legal officer employed by the Government, are overseen and have the appropriate judicial oversight. So I am not a judge, I do not claim to be, but I suppose I do carry out judicial determination, judicial decision- making in the process of title adjudication. But there are merits in having it at a lower and quite informal level. 595 Q58. The Chairman: Is your experience with the hearings that you conduct, that people come along with their advocates? Or do you find that people are coming as individuals? What level of representation do you find is involved?

600 Mr Arculus: In the three years that I have been in role I have only concluded one hearing, and that was on a matter of costs. So we do our utmost to steer parties towards compromise or agreement. I do have a couple of protracted matters that are heading towards a hearing, and in those they are of sufficient gravity that advocates are involved; and there is a Land Commissioner’s 605 case ongoing at the moment where one of the parties is unrepresented by advocates. So I suppose my answer would be that it is a mixed bag. There is potentially an inequality that seems like part of the Committee’s brief, the requirement that an applicant for registration must be represented by an advocate, but somebody objecting is not, and perhaps that then skews the work. I do not know. I think the 610 fairness of that is that objectors often do not need to be constructing a legal argument. We are not requiring them to demonstrate their own ownership of title; we are just wanting to hear from them as to how they think the registration should proceed. The parties are able to get legal representation as objectors and they are covered by the same costs rules. 615 Q59. The Chairman: On the costs rules, it would be helpful if you could just explain the regime that applies to … Well, possibly before I get to that, you have said that in the three years you have been in post you have only had, I think you said, two matters that have gone to a Land Registrar hearing. But 620 what proportion, off the top of your head, of matters would you say have gone through that – not got to a hearing, but an informal discussion inquisitorial process to try and get a question about title resolved?

Mr Arculus: More, but again not very many, probably about 10 or 15. We have more than 625 that number of objections, but they often fall away when the parties begin explaining to each other what is happening. Very often objections come in because someone feels their rights have been overlooked, and the applicant is perfectly happy to acknowledge that they have overlooked that right and they are happy to recognise it.

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The Registrar’s hearing is in many ways an extension of the power of the Registrar to require 630 any such information or evidence as he needs. By and large, we do that by asking applicants to submit the form of the evidence that we need in writing rather than as a formal hearing. What was your actual question? Sorry?

Q60. The Chairman: That was very helpful. 635 The question that I started asking was if you could explain the costs regime that operates for the Land Registrar’s hearing, but also any differences with a Land Commissioner’s hearing in terms of how costs operate?

Q61. Mr Hooper: Just before you touch on that, just for my own clarity. This informal process 640 you have described, that is something that you can suggest to people, but actually they still have the right to say, ‘No, I’d like to go straight to the Land Commissioner’ … Or do they have to go through your informal process first?

Mr Arculus: They have to go … I can decide to refer the matter to the Land Commissioner, or 645 hear the matter myself. If the matter relates to possession of registered land then the applicants or the objectors have a right to request that matter be referred to the Land Commissioner. In other cases there is a discretion for me to do it; but it is not something that a party has any statutory right to apply for.

650 Q62. The Chairman: What is the reason for the difference?

Mr Arculus: I think that there were a couple of occasions where the resolution process for disputes – we have other types of dispute, as well – differs whether the land is registered or not registered. So, by way of illustration, where there is a caution against first registration of land, if 655 a party claiming to be the owner seeks to have that removed, that is something that is determined by the Land Registrar or the Land Commissioner. Whereas, if there is a caution against dealing with registered land and there is an objection to the removal of that caution in exactly the same way, that is something that only the Land Commissioner can deal with. So I think, possibly, that the aspect of that may not have been considered in any great detail 660 going through the legislative process – which is not a criticism, because it is hidden away in the text. But I also think it could be based on the principle that although the Registry is subject to judicial supervision, it is for the Registry to develop the expertise in populating the register in the first place – flushing out the disputes and populating the register. The legislation is reasonably clear but it is unusual that it should say this, that when it comes to committing things to the 665 register that is something that only the Registry do; whereas when it comes to changing things that are on the register the courts have got a direct jurisdiction to direct the Registry then to change the register, but they do not appear to have the power to direct something to be put on the register in the first place. Now, again, I just want to carefully retreat from that statement because if I receive an order 670 from the Staff of Government Division saying that someone has title to land, it is obviously going to be an incredibly high evidential weight, and all we are looking for is evidence. So in the same way, Tynwald probably could tell me to do anything. We often get applications for registration that rely on Acts of Tynwald – the Curraghs Acquisition Act and the South Ramsey Acquisition Act – they effectively confer a parliamentary 675 title on those parcels of land that do not require me to inquire any further because Tynwald has said this land is now part of this estate. But Tynwald has not put it on the Land Register and, in doing that, it is still a case of me using that on an evidential basis. Those things are a very minor distinction that I am trying to illustrate. But I really do not understand any more than I have just said, why certain matters fall to the Land Commissioner 680 and certain matters fall for the Land Registrar. But again, even a matter that only falls to the

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Land Registrar, once he has made that decision it can be appealed to the Land Commissioner and, as I say, retried. By and large that does not cause problems because we do not look at it in the same adversarial way, we try to look at it objectively and impartially based on the title evidence; whereas a court would perhaps be looking more into the extrinsic circumstances and 685 actually conducting it as a proper opposed hearing.

Q63. The Clerk: Are most of the matters that are difficult to deal with, do they mainly involve rights over land that are less than ownership, so access rights or whatever?

690 Mr Arculus: I do not really know how to answer that, but we have a fair history of applications for registration where title deeds are virtually absent, and we have to rely back on the Tithe and Asylum Plans, or the Woods’ Atlas Plans – the first two, anyway – which are the only taxative survey that has been conducted, and then work forward from there. But from a Registrar’s point of view they are complicated, they are complex matters, but they do not tend 695 to be disputed. In terms of disputes it is more likely to be where someone wants to register a right of way across some land that is already registered; and, even though they can evidence that they were legally granted it by someone, a purchaser has subsequently acquired in reliance on the Register of Title on which that right of way was not registered. So you then have two parties: one has an 700 acquired right of way under the deeds system and one has acquired free of any unregistered right of way. So you have two people who have right in law, and that then obviously causes grounds for dispute because that obviously has to go to the courts for resolution. They tend to be the more complicated matters. The majority of applications for adverse possession, or applications even for absolute title 705 that have elements of adverse possession, are not disputed; there is no objection raised to them, it is just a case of using adverse possession – the principle of adverse possession and the principle behind adverse possession – as a means of effecting a cure to defective title.

Q64. The Clerk: So if you had universal registration of rights over land, these difficult 710 problems would fall away because in the matter that you have just shown, where there is unregistered rights over registered land, those problems would die out, wouldn’t they?

Mr Arculus: Well, they would, but there are certain classes of rights that are appropriately not on the register. The public right of way, for example, cannot be lost by the act of non- 715 registration in the Land Registry. So there are certain public rights, particularly, that are protected even though they are not on the register. I think there is always going to be – it is called a ‘crack in the mirror’, in registration – a certain amount of information that does not appear on the Register of Title. So, for example, if you granted a tenancy-at-will to somebody, so it does not have any term, 720 they are just in until you tell them to leave, should that be something that is noted on the register? And yet somebody is in possession … So it is a fine line between having an entirely comprehensive register and every possible interest that people enjoy over their land – which is obviously a very expensive process for the Government to compile – and a more restricted register that can be accurate and up to date at any given time. 725 Q65. The Chairman: Presumably though some of that issue, like public rights of way, could be addressed by a more seamless system that allowed people to understand the entirety of what affects land.

730 Mr Arculus: The issue of public rights of way actually is dealt with already in that, under the Highways Act, the Registry maintains a map of public rights of way on our counter. That is in the

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process of being digitised by DOI – it is still a DOI asset. Once it is available that, as an example, will go on the layer to our Title Locator product, or whatever replaces it. So that kind of thing is dealt with and highways, you can argue, would then be something 735 that would logically go on there, together with service easements. There are maps that exist showing the location of all the septic tanks, the soakaways and drainaways; and sometimes where we have put them on our register it is not recorded where they are on this other map. So with everything, greater transparency as to all the different Government records that are held is likely to generate greater certainty for everybody. 740 Q66. The Clerk: And that is a great economic benefit, isn’t it, as we have seen in many jurisdictions?

Mr Arculus: I would like to think so. I would like to think that the benefits of registration are 745 so great that the banks would naturally be saying, ‘I want you to register land before I am sufficiently happy with any level of security on it’. But the bank system does seem to accept … Generally speaking, better land economy and better management of land is seen as something universally that is beneficial to the economy; but whether it is immediately beneficial or whether it is just a longer-term asset … 750 Q67. The Chairman: Before we move on, I raised the question of costs earlier and it would just be helpful, in brief, to distinguish between if you have a Land Registrar’s hearing with advocates involved, what costs do you apply there vis-à-vis what happens when you go to a full court hearing in front of the Land Commissioner? 755 Mr Arculus: Certainly. The hearing that I was referring about previously, that I had only completed one and that was about costs, the case there was settled on the day of the hearing, which often happens. But the issue of costs were left to be determined, and I applied the Advocates (Conveyancing Fees) Regulations to the question relating to costs. 760 Back in 2000 under the Advocates Act, the Fees Committee – I forget the names of the parties – Tynwald approved the fees to be charged in conveyancing actions on a sliding scale; and as a special case it includes any matter requiring any additional work in respect to the first registration of land under the Land Registration Act.

765 Q68. The Chairman: Is that why you applied those rules, or were you otherwise obliged to apply those rules?

Mr Arculus: I applied those rules because I felt that the advocates acting for the parties involved in the dispute were only able to recover under their terms of engagement from their 770 own client the maximum fee level set out by the conveyancing fees regulations; and accordingly, again in my determination, it would be unjust to allow the party, the objector – that it is perhaps harder to argue – is bound by the conveyancing fees. But it would be unjust if that party were made to pay a higher level of fees if they were ordered against them, than that client would actually have had to pay, in fact, to his own advocate. Does that … ? 775 Q69. The Chairman: Yes, I do follow that. But there is a distinction then between why you operated those fee rules in a Land Registrar hearing context vis-à-vis the Land Commissioner process. Could you explain that?

780 Mr Arculus: Yes, my determination is that every application in the Land Registry is technically a legal proceeding and the vast majority of them are not disputed. The reason I have that view is that every title determination …

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Well, let’s put it a different way: if a title determination takes place after an objection and then it is determined, the effect of that determination is binding ad rem, so it binds the world. 785 Accordingly, the effect of a title adjudication process that concludes without a dispute is also binding ad rem and, accordingly, within the definition of the Act, they are all proceedings for that purpose. So I took the view, and I hold the view that all applications to the Land Registry for registration are subject to the Advocates (Conveyancing Fees) Regulations. The costs regime for the Land Commissioner and other hearings resulting from disputes 790 about land registration, or disputes about land ownership generally, are covered by a different set of rules. It is possible that a party to proceedings before the Land Commissioner could argue that they should be bound by the Advocates (Conveyancing Fees) Regulations. But that is not for me to determine, that is for the parties to decide and for the Land Commissioner to determine. But I think the Land Commissioner has got very, very broad discretion as to how fees are 795 determined and I think, on the evidence, he has concluded that these fees do not relate to Land Commissioner hearings.

Q70. Mr Hooper: So you are saying there is not really any clarity, though, in the statute that says these fees shall apply? It is just a case of the Land Commissioner or yourself making an 800 independent determination. So a new Land Registrar might look at the same case but through a different lens and say, ‘Actually, these fees do not apply and so I am taking a different approach’? (Mr Arculus: Well … ) It is nothing explicit I am getting at that says these fees shall apply …

805 Mr Arculus: There is a great deal in the Act that is an exercise in discretionary decision- making. So by the very nature of that, although I would expect every land registrar to be created in my image, (Laughter) so they would be reaching the same decisions that I make. In fact I say that in all seriousness, there has been a great deal of continuity between Mr Carnson, the first Land Registrar, and Mr Anderson who retired when I was appointed, in the approaches that we 810 appear to have taken. We have done our best to be consistent in applying these practices. But the actual legal provision is just that, it is down to us to make the decisions. Now, when more hearings have taken place – and I do not know whether there is a criticism, but I would not accept there is a criticism, the fact that we have not held very many hearings, and the Land Registry has not held all that many hearings either during the course of our 815 existence. But it is likely as more land gets registered, that the frequency of disputes increases, because at the moment some register here and then here, and there is no dispute between the two of them. It is really when people start registering contiguous plots that it is more likely there is going to be a dispute. So as more cases get heard and more cases get determined, a precedent bank will establish as to how costs are meant to be applied. 820 The general presumption that costs should follow the event in litigation, our guiding textbooks on land registration steer us away from that principle. But the Land Commissioner is not a function that exists in other jurisdictions, so the Land Commissioner is not guided in the same way that I am. The default position for us is that costs do not necessarily need to follow the event. We take that approach because the costs are relatively low if you are just objecting to 825 a registration and that gets sustained, and then one party is not able to progress with their registration, then you have been successful in your objection; and because you as an objector have not incurred a great deal of cost you probably do not want to recover the cost of the whole application of the other party. So there are lots of times when we would not consider it appropriate to make a cost determination at all and the parties would not ask for it. I think the 830 cost regime works, is the long and short of it. I think, if I may move on to this, that some of the comments made in the Petition about firstly the lack of judicial process in the underlying registration system and the lack of cost limitation control in the Land Registry regime – and it is down to the Committee to decide – but I would say that that is not supported by what I have just told you. So the cost regime is in place and in

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835 terms of equality of arms, because the cost regime binds both parties, it does prevent that sort of situation of abuse.

Q71. Mr Hooper: Are there any costs associated with the more informal part of the process that you talked about? So if you manage to resolve these disputes by conversation, by 840 negotiation, are there any costs associated without any fees?

Mr Arculus: No, there are no fees from the Land Registry for that. It is part and parcel of the application fee for registration. Now, bear in mind that if you are applying to register land voluntarily then there are no fees 845 in the Land Registry, which is amazing, because the amount of work involved is greater than registration resulting from a compulsory transfer. But there are no fees because they have been paid in the Deeds Registry originally on a transfer. There may be a small charge for a certain little additional thing that you want putting on the register, but there is no registration fee in itself. So, no, as I say, we do not charge for those hearings. 850 I think probably, technically, there is a power in the Act for us to do so. Applications for rectification, we have certainly got the broad discretion to award costs against the party that caused the event that now needs to be rectified. But that is not a power that we have exercised.

Q72. Mr Robertshaw: You very kindly tell us, at your answer 6.4 – I had better put my glasses 855 on – there are 143 titles registered with possessory title out of more than 19,000 titles. Would it be onerous for you to tell us, and this is just by way of background interest, how many times those 143 titles replicate the same person or persons?

Mr Arculus: I would not have thought at all, to be honest … 860 In terms of those 143 titles that are registered with possessory title, I would make the point initially that some of those may not have resulted from adverse possession in the squatter vs the paper title owner position. (Mr Robertshaw: Right.) It may just be that they have not been able to evidence privilege of title. On the other side to that, some of the titles that we have registered without with absolute title may have been acquired by adverse possession. 865 So I have given you the figure of 143, which is factually correct, but it kind of does not exactly answer your question if you wanted to know how many times adverse possession has been used as grounds for registration in the Land Registry …

Q73. The Clerk: Is that because somebody who has owned a farm, had a farm in the family 870 for years and years, might not have the original documents but they have always been there?

Mr Arculus: Exactly. It might be, for example, that the only mapped record of ownership goes back to scratchy drawings on the Asylum and Tithe Plans – which, incidentally, are also now available online for inspection. Since those drawings were drawn freehand by Mr Woods, or 875 whoever it was that performed them, the land boundaries have changed, or his drawings were not very good in the first place. We are then asked to register ownership of the land based on that and actually they do not properly demonstrate ownership to any of the land outside the area shown on the map, unless you apply the logic that the map itself is wrong – so the other parcels of land have been acquired by adverse possession, in a technical sense. But we would 880 then form the decision that this land has been adversely occupied – if that is what we want to call it – for the last 120 years. So that additional power I told you about that on examination of the title we can award a title that the person otherwise would not have, let’s put it that way, is then exercised in that case. So, for example, if someone is able to do what I have just told you about, demonstrate that 885 that land has been in their ownership for 120 years – but they have never had a survey done, they have never had a map done, or they are reliant on the Woods’ Atlas plans – would

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Members like me to award that person possessory title and say that the family have not yet done enough to show that they own that land? That is an open question and I think probably Members would conclude that that person has acquired absolute title. 890 So a possessory title is effectively what happens when you register an adverse possession but under the Limitation Act it is reasonably clear – well, this statement is true – once the rights of all other parties to recover the land have been extinguished, then if you have acquired land by adverse possession then your title at that point is good against the world, because I have just said there were no other parties that were able to claim against you. 895 Now, when people apply for an adverse possession if we award them a possessory title it is really us recognising they have been in that occupation and possession for 21 years but we are not sure, because we have not tested it, that there may be other people that are meanwhile able to demonstrate a stronger title. So the possessory registration process gives in effect a further 21-year period for anybody who may have had a right at the date of registration to 900 challenge that award of possessory title to turn up and do so, and if they fail to do that then the title is ‘quieted’, it is called – the title is stabilised into an indefeasible absolute title.

Q74. The Chairman: Does that happen automatically, or does the person in possessory title have to reapply to upgrade to absolute title? 905 Mr Arculus: There has been application for us to effect it, but in terms of whether or not that happens automatically at law, I think it does so. So that effectively is an administrative process, if someone makes an application and says, ‘I’ve been registered for 21 years; no one has objected to my ownership; upgrade it’. 910 Q75. The Chairman: It is the sort of thing that is secured by an advocate who is awake, not spotting it when there is a transaction and making the application as part of the process of selling on the land or borrowing it, or granting a lease, or whatever.

915 Mr Arculus: Yes, that is absolutely correct although they would not really need to, they could do that if they are buying it – when they buy it they can then just tell us that it has now been held for in excess of 21 years. But again I make the point that we have not got any titles that have been registered for 21 years, so it is not the case that we have actually had to test that, but I am reasonably confident that advocates probably would in advance of a sale. 920 The Clerk: Just out of –

Mr Arculus: Prudence, yes.

925 Q76. Mr Hooper: So how does that work then in connection with other rights that may exist on the land? So, for example, as in this case you have a landlocked piece of land with some access to it. How does that work there if somehow actually those rights are not recorded on the register, you have a possessory title and say, ‘Actually, we think someone owns this’. That then gets converted but the rights never get firmed up and never get registered. 930 What happens to those rights? Do they disappear? Does the person have the opportunity to challenge that registration and say, ‘Actually, I don’t own the land but I do have a right of way over it’?

Mr Arculus: They do not disappear, is the answer. 935 The usual position is if a registered title does not disclose rights that affect that land and which require registration – so leaving aside that there are some that affect land without registration. But if someone then turns up for value on reliance of that title and acquires that land, then they take it clear of any unregistered burdens. But in the cases of possessory title, we

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record a restrictive burden on the title to say that this land is subject to any burdens that may 940 have existed prior to registration. So it leaves the door open to people to demonstrate that they still have a right and that that right has not been overreached by any subsequent transaction. The reason we do that is that as a matter of law the act of requiring adverse possession against the paper title owner does not extinguish the rights of way, for example, that some other party might enjoy and may have continued enjoying. Actually I would make a point and 945 say it is actually very hard legally to lose a right of way once you have established one. So the answer, I suppose, to your question, Mr Hooper, is that were it not for the protected caution that we register that would be the outcome – people would lose their rights because they have not registered them; but because we put it on, it leaves open the ability for them to prove it. That applies whether the title we award is possessory or absolute, actually. So if we 950 have that notice on there then a party could still demonstrate to us that they have gained a right of way.

Q77. Mr Hooper: So is there any additional process? You mentioned earlier that you will write out to interested parties on some of these 955 applications. Is there any additional process then where you have a piece of land that actually may be landlocked as a result of the application, that you write out to the owners and say, ‘Look, we have had an application in land that you do not own, you’ve never claimed to own it, but you may have an interest in’?

960 Mr Arculus: Two different situations relate. You are talking about a land locking process …

Q78. Mr Hooper: So essentially referring to the Petition, if the land in question here had been previously registered and all the land around it had been registered, and this application came in saying, ‘I would like to take adverse possession of this small piece of land, but in doing 965 so I will then deprive the owner of another piece of land of an access right which may or may not be registered …’. Would you, as the Land Registry, in those circumstances, write out to the surrounding landowners and say, ‘We’ve had an application for adverse possession of a piece of land that may impact on your ability to enjoy your own property rights for your registered land, and so at least you should be aware this is going on. So if you believe you have an access right or 970 other rights of way over this piece of land you might want to flag this up’?

Mr Arculus: The answer to that, which may not be satisfactory to you, is that I do not think there is any statutory requirement for us to do that. But what we would be far more likely to do in the registration process is to spot that and revert back to the applicant and say, ‘If I register 975 this land it looks as if you will be extinguishing access across such and such. Are you sure it is not subject to a burden?’ As I have said to you before, we are entitled to rely on the certificate of title that the advocate has provided us – and the cadre of advocates provide an excellent service – but inevitably in a process of land registration we do spot occasional lapses to disclose everything to 980 us. So we will either look back at the title record and say, ‘I think probably you’ve missed out this one. Is there a reason for that?’ And very often there is a reason why they have not included something, but we will raise a question anyway. A far more likely situation that does arise is people apply, particularly in urban situations, they cannot find any rights of access on their title deeds so they make an application for a right 985 of way by prescription – so this is a kind of possessory title over a right of way. I will call it that and lawyers will criticise me, but that is what I am talking about there. More likely, I will then go back furtling in the Deeds Registry and the Museum to actually try and locate the existence of an initial legal right, so that we do not need to be granting uncertain prescriptive rights of way across land, and instead we can actually grant the right of way that has been acquired by grant.

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990 Although it only relates to that individual title, that is then of enormous benefit – and this is why we go to the effort of doing it – to all the other people that are affected in the same estates because once we have put on the register that House A enjoys a right of way created by a grant in 1872, deed reference such and such, then any subsequent purchaser of a neighbouring plot who is unsure about their rights of way and cannot find anything on the title, will see that the 995 right of way that we have registered – and they can see the history of that – and then future applications will come in with that on there. So I guess, in answering your question, I am not sure we would necessarily write to … No, I think we probably would write to people, but there is no uniformity of application and I think in this particular case I do not think we did write to … Mr Cleator is here. Did we write to you, 1000 Mr Cleator? No, well there we go. That was before my time, but there is no guarantee that we would do that anyway. That situation is slightly different if the land is registered, because then we can see that a neighbouring title enjoys a right of way across that bit of land; and accordingly we would not be registering this bit of land free of a burden when we can clearly see it is affected by the 1005 pertinent right. That in itself may cause grounds for dispute because a party may say, ‘It is all very well for you to register that right in the first place, but actually it was surrendered the year after it was granted, and the advocate who made the application did not know about it so did not inform you about it’. So as we go through the process of populating the register it is inevitable that we will find 1010 conflicts with what we have been told by a whole variety of advocates across the last 20 years.

Q79. Mr Hooper: What I am getting at really is that part of the purpose of the land registration process is to draw out some of these disputes and to get them resolved. Do you think then that actually notifying people who may have an interest of registrations 1015 that may affect them actually will be a good, helpful part of that process to try and draw some of these disputes over so they happen at the point of registration, rather than years down the line when people say, ‘Actually this happened 50 years ago. What’s going on?’

Mr Arculus: The answer is yes. The greatest protection that an individual can obtain to 1020 safeguard their rights and their title is to voluntarily adopt registration. There is no question about that in my mind. An alternative is that they can apply for a caution against first registration which is a purely administrative process of £20, do an affidavit claiming you own this land, send it in to us and we will register that caution against first registration, no questions asked. The effect of that caution 1025 is then if someone does apply you are put on notice that someone has applied to register a right of way over that land or ownership of that land. We are developing a process akin to that which the planning system have where you can express an even less formal interest in land – just ‘an interest’ in land – and then if there is any dealing in that land, because we have now got this modern system, you will then be sent a quick 1030 informal email saying someone has submitted an application, in the same way that you can set that process up for a planning application. So that will provide greater notice. A criticism of the system that Tynwald previously raised was that, yes, everyone has a right to object to applications, but no one knows what applications have taken place. So we responded and accepted that point. It has been a while in coming, but we do now have a live – well, it is not 1035 entirely live – but it is a daily update of the applications that are affecting land in the Land Registry that people can see online. We also concede that it is unlikely people will be wanting to spend every day of their lives looking at the Land Registry to see if their land is affected, which is why we are trying to develop the informal process and why we have also reduced the costs and formality of putting a caution 1040 against registration on the land to £20 – it used to be £75, when we were formally criticised.

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Q80. Mr Hooper: But again, as the process moves on and more and more land is registered that will come less and less, because you will have all the information and all the land will be registered in the Registry in the first place.

1045 Mr Arculus: Yes, absolutely.

Q81. The Chairman: I am mindful of the time and I believe we asked you to be here until 12 noon and we have already run over time. I am conscious that I do have further questions … I think, perhaps if you can spare us a bit more time the one question I suppose I would like to 1050 ask – and then if we do have any further questions if it is all right we will write to you. The one question I did want to just explore, you dealt with in your answers to question 4, which is the position of trust beneficiaries and again there is a difference between the Isle of Man and England and Wales, as you have explained this. So if I have understood correctly – and please correct me if I am wrong – in the Isle of Man 1055 the limitation period for adverse possession of 21 years is fixed and it does not matter what ownership and what the relationship is between a trustee for life and any subsequent beneficiary, it is 21 years and that is it. Whereas in England and Wales the limitation period of 12 years runs only against the person who is acknowledged to be the owner or the beneficiary at that point. Have I understood that correctly? 1060 And then if I am a successor, if I am the beneficiary who then comes into occupation of the land or ownership of the land, there is a clear extra further six-year period for me to be able to assert my rights. Have I understood that correctly?

Mr Arculus: You have understood that correctly, yes. 1065 Q82. The Chairman: What do you see as the advantages/disadvantages of those two different approaches?

Mr Arculus: To me, it is harder to acquire adverse possession in the Isle of Man than it is in 1070 England because you need to do it for 21 years rather than 12 years. For me, in the UK, in England and Wales, if you are a beneficiary to a trust or rather if you are holding a subsequent interest in land, so you are not in possession, then you are arguably greater protected in the UK in terms of land registration. But under both systems you need to remember – sorry, Chair, I would encourage you to 1075 remember – that the relationship between a trustee and a beneficiary is an important legal relationship; and if a trustee is in charge of safeguarding a beneficiary’s interest in land then that trustee has a fiduciary duty to do that. If a trustee fails to take any protection over a period of 21 years to prevent someone acquiring possessory title against them, then it is clear to me that they have the right to recovery from the beneficiary for breach of fiduciary duty against the 1080 trustee. That applies in both jurisdictions. This is not my area of expertise, so I may be overstepping the mark a bit, but it is the responsibility of the trustee to safeguard that. The Isle of Man has a slightly different process, whereas in the UK the only right of recourse in England would be against the trustee, were it not for the change in the Limitation Act; whereas in the Isle of Man, someone who has a subsequent interest in land, an interest not in 1085 possession, may take action for the recovery of their interest in any event. So this is to say within the 21-year period if I have a subsequent interest in land and the life tenant I can see is losing possession of that land but is doing nothing about it, I could act on my own behalf to go to court and protect my future interest in land – which means that adverse possession can be acquired against that life tenant only. Then when your interest which, otherwise than for the existence of 1090 that life tenant would be an interest in possession, becomes an interest in possession – so, when he dies – you would then be entitled to possession of your land again in the Isle of Man.

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What I am trying to get at is the method of protecting your future interest in land is more democratically accountable in the Isle of Man in that the person who wants to enforce that right can do so, whereas in England the holder of an interest that is not in possession cannot take 1095 action against anybody other than his trustee. Have I explained that in a coherent way, or not?

Q83. The Chairman: Yes, you have. I suppose my only question is the position of a minor, that right may exist but until I am of an 1100 age that I can understand and assert my right, should there be any additional protection? I accept what you said about that the trustee’s fiduciary duty, but is there an argument … I believe a debate was had in the House of Lords about the situation where parents are killed in a car crash and a young child is left without any knowledge of any potential future interest in land. How do you protect that interest? 1105 Mr Arculus: Obviously, for a start, the difference in limitation periods between 12 years and 21 years goes some way to address the issue of minority because it is very unlikely – it would be tragic – if on the day of your birth, going back to your home, both parents are killed. But you would in any event then have three years in which you can take legal action to protect your 1110 interest once you reach the age of 18; whereas in the UK you would lose out by your 12th birthday under that situation. So that may have informed the approach Tynwald took in 1984 of continuing the 21-year limitation period applying to all cases. I do not know, I cannot say. I would say again, though, that if in the Isle of Man someone loses their interest that they would have had in possession and they do not take action against the adverse possessor, they 1115 would still have a right in action against the trustee, whoever that might be – and if it is a Government trustee in the case of orphans, or what have you, then they would have a right to recover under the fiduciary obligations on a trustee. I think there is also the ability for a trustee to acquire compensation from the Land Registry for erroneous registration. That is something I would have to actually check and write to you 1120 about, Chair, if that is okay (The Chairman: Yes.) because I can see that is a very important point. My understanding is that if we were to register something and that active registration deprived somebody of their right to possession when it became a right to possession, then they would be entitled to take an action for compensation. It would not deprive the registered owner of the property, but it would trigger a compensation payment under the Land Registration 1125 Indemnity scheme provided they bring that action within – again, I think they have six years from the date that their interest in possession materialises. I am saying that, but I am not convinced that I am right. So I could either sit here and try and work it out now or if you would rather I wrote to you, then …

1130 The Chairman: Please do write to us; that would be helpful.

Q84. Mr Hooper: Just from everything you have said so far then it would seem to me – and I might be oversimplifying things greatly here – that actually the best way of ensuring that someone’s interest in land is protected would be to have a combination of the Isle of Man’s 21- 1135 year period – the Isle of Man approach – combined with the UK’s registration requirement to say actually taking into account all these long periods of time, even if someone does want to apply for a possession of property that they do not necessarily own but they occupy, that actually the Registry would write out to the trustees in the first place and say someone is trying to claim possession of this property, and actually that is the trigger point then for the trustees to act in a 1140 responsible way, so actually it does not matter whether it is a life tenant or a future successor it is the trustees’ responsibility to say, ‘No, thank you very much, this is our still our land’ and to act on that. So a combination of the two approaches would seem to be actually the best solution here.

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Mr Arculus: I think that would be right. I think that is correct, Mr Hooper. 1145 I am just thinking in the back of my mind … As a land registry we are obliged not to record trust interests on the register, for various reasons, but there is a different set of provisions that apply to settled land. A great number of trusts that operate in the Isle of Man are probably subject to the provisions of the Settled Land Act whether parties realise it or not. So there is a mechanism by which someone’s future interest in land can be protected on the register already. 1150 Q85. Mr Hooper: But from a registry’s perspective it does not matter who the legal owner is, it does not matter to you if it is held by a trustee or an individual, you have their details you will write to the registered owner and it is up to the registered owner if they are a trustee to act in the best interests of the trust and of the beneficiaries. (Mr Arculus: Yes.) The registration 1155 process actually does not need to know any of that, it is not your business, that is up to the trust, essentially.

Mr Arculus: Yes.

1160 Q86. The Chairman: Just on the Settled Land Act, when you are writing to us about the compensation position could you also elaborate on that? That would be helpful, thank you.

Mr Arculus: I will try to, yes, but it is a difficult Act. Is there a particular aspect …? Is it just in terms of registration? 1165 The Chairman: I think just as it interacts with registration, that is all. Thank you for your time and for all the information you have given to us in writing beforehand and this morning. We may write to you, Mr Arculus, if we do have any further questions, particularly as we 1170 come to formulating any recommendations as to the best way forward. But on behalf of the Committee can I thank you very much for your time this morning. The Committee will now sit in private.

Mr Arculus: Okay, thank you very much.

The Committee sat in private at 12.18 p.m.

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WRITTEN EVIDENCE

99 100

APPENDIX 1: 20th January 2020 Statement by Mr Mark Cleator, Petitioner

101 102 Statement by Petitioner Mr Mark Cleator 20th January 2020

Please note that this submission has been reformatted for publication, with references to individual names being replaced by unique letters, e.g. [X]. No other aspects of this submission have been changed. The original document is available to view in the Tynwald Library upon request.

The Constitutional and Legal Affairs and Justice Committee, a Standing Committee of Tynwald.

Dear honourable Members, thirty minutes.

First, it has come to my attention that Mr [X] has sadly, very recently, died. If Mrs [X] is here, or reads this in the future, I give her my sincere condolences. It has always been my position, as I have made clear many times, that I do not consider Mr and Mrs [X] to be the instigators behind this saga. They merely found themselves beholden to [Y], their son’s father in law. They found themselves in the centre of something that started more than 30 years before they moved to the Island.

Mr [Y] has used this retired couple from Kent to his own ends and my heartfelt feelings go to Mrs [X] to whom I bear no grudge whatsoever.

Further, having heard her arguing in my favour with Mr [Y] in October 2016 I feel sure that it was obvious to her then, as it particularly will be now, that what has been achieved through the courts using a combination attrition, filibustering and manipulation is immoral, and certainly it was not in any way worth what has happened to her husband.

Once I heard Mr and Mrs [X] providing evidence in court it was clear that they had been manipulated and were not particularly aware of what was going on in their name. But sadly, the act of appearing in court in order to further the aims of [Y] was not going to gain them new friends, and hearing lies regarding my behaviour was particularly upsetting.

My relationship with the previous owner of their house was, and still is, excellent.

If Mr and Mrs [X] had chosen myself instead of Mr [Y] as their introduction to the Isle of Man, I have no doubt that things would be significantly different. It’s simply devastating for all concerned.

I know only too well the stresses brought on by the last five years of dispute, and I also understand that Mr and Mrs [X], like myself, have been trapped in a game of cat and mouse that is being articulated by the third party that I continually, and intentionally mention. I expect there has been little they could do to resist the plan meticulously devised, using their purchase of Greenhills, to land lock me, and this land locking aim Mr [X] admitted in his evidence in October 2018. He had already been in court against me in February 2017 when he brazenly removed a boundary wall, and it has always been clear that his moves were made to support [Y] and his legal adviser in their greater aims.

That Mr [X]’s retirement has consisted of endless legal unpleasantness is simply terrible. Certainly I did not, and still do not want to be a part of it.

But, if it is my destiny to spend a significant portion of my life fighting to put things right - then so be it. Someone has to be first to raise their head above the parapet.

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103 Statement by Petitioner Mr Mark Cleator 20th January 2020

Apart from my children and family, first and foremost my life revolved around music and sound.

Many on the Island already know me from this, and some will have noticed my near total absence from the scene since 2016.

Since the challenges presented by the Manx legal system I have left all the bands I played in. I have closed my recording studio.

I stopped working in live sound, and particularly telling, after ten years of being awarded the contract to provide high quality audio for the Tynwald Day ceremony, I withdrew from working on this prestigious event.

Such work requires focus, energy and inspiration, and all these skills have slowly been eroded as I have adjusted to living with seemingly continuous legal threat, challenge, paperwork and court hearings.

Even my dreams have become obsessed, for example I dreamt of a hand holding my head below the water, and I dreamt of a Sherman tank chasing my car down a narrow forest lane, with very little fuel left. These are graphic examples of what is going on inside my head whilst I sleep.

I run a small computer company, but as pressure has increased, my ability to service my clients has decreased.

My availability and ability to previously fix anything that I am presented with has suffered, and subsequently, in addition to my savings being devastated by years of legal fees, which were paid out under the assumption that ‘the truth will out’, my income has shrunk to very little. I depend on my partner maintaining a regular part time wage to prop up my failing finances, despite her time being largely spent looking after our disabled daughter.

Disturbingly however, and this is a major consideration when discussing access to justice, when attempting to attain legal aid to even consider appealing the devastating decision of Deemster [W], such aid was refused. This decision was apparently based on my partner’s additional part time income, yet consideration was certainly not given to our unusual family circumstances with the associated exceptional costs and time restraints that most families do not have to bear nor could even conceive.

It is not appropriate to discuss this further in the public domain but the committee members will be aware of these rare circumstances which really should demonstrate the ridiculous notion that I might be the aggressor in this debacle. I’ve got better things to be doing than this.

I am of the opinion that The [X]s were not aware of the issues that would be raised by me when the deeds to their new house were registered early in 2016, but [Y] and [Z] knew only too well what they were getting The [X]s involved in, and this entire, devastating chain of events falls fairly and squarely on the scheming and downright dishonest activities of [Y] and his advocate.

I also do not believe that Mr and Mrs [X] thought that an issue would be raised when they began knocking down a boundary wall through to the adjacent field that Mr [Y] had bought.

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104 Statement by Petitioner Mr Mark Cleator 20th January 2020

His acquisition of this particular field was very reason that their new home had become available to purchase, having been placed on the market by the frustrated previous owners, Mr & Mrs [V] - who would never have sold their house to Mr [Y].

My advocate’s advice to apply for a Restoration of Status Quo action promptly had Mr [X] pragmatically rebuild the wall which negated the need for a hearing, but I still had to go to court to claim for costs associated with their actions. If I hadn’t got these costs I might already have been unable to continue further defence of my ownership.

I doubt they even knew that [Y] had placed a caveat on my field three days after they filed their deeds, or that my field had been sold subject to contract by the same estate agent with whom they had been dealing with.

I was already spending hard earned money with my advocate dealing with Mr [Y]’s caveat before they began manipulating boundaries, so suddenly I had two issues for my advocate to deal with.

I also have doubts that [X], their son even knew about the letter sent to me in his name regarding fencing maintenance, a letter that Mr [Y] admitted in court that he wrote himself.

I wonder if they knew that when I took ownership of my lane and field from my father, the well known and recently deceased estate agent [U] had befriended me using his interest in HiFi, visited my house and family, and kept in contact with me.

Disappointingly I found that, despite [U]’s comments to the alternative, included in my evidence, he was actually a Director of Mr [Y]’s property company.

I was being observed.

My petition touched upon numerous problems that have come to light during the many and varied challenges of dealing with the Manx legal system since Mr and Mrs [X] signed on the dotted line in January 2016. I have endeavoured to spell out as clearly as possible in my evidence the shortcomings that have without any doubt in my mind led to a miscarriage of justice, and this highlights with stark clarity the large unresolved issues that presumably, and regularly go unchecked as the justice machine plods ever forwards.

Incredibly, and at the end of four and a half days in court, Deemster [W] spent over two months producing what appears to be a landmark 77 page judgement which gave away what was under four metres square of land that I had deeds for, which was importantly the access to my field, using Adverse Possession rules.

Certainly to my advocate’s surprise he had selected a date range between 1950 to 1971 to find the elusive 21 year period required, thus implying that this possession was taking place, with my family’s knowledge, before I was even born and even before my father took possession in 1978 on the death of his father as per the will of his aunt in 1947.

This was a broadside for my advocate, as we had discussed and he had prepared a defence against the Absolute Title application, as was applied for in Mr and Mrs [X]’s application to the land registry. Our defence demonstrated legally that my root title was good, but my advocate also showed usage from 1987 onwards that should, in a normal world, be

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105 Statement by Petitioner Mr Mark Cleator 20th January 2020 sufficient to prevent one’s land being legally stolen.

It should have been ‘a very simple matter’, as he was at pains to point out to the Deemster who had once upon a time in a different capacity, trained him.

My root title was theoretically unassailable, but because nobody could say we actually ‘maintained’ the area in question between 1950 to 1971, which was simply part of the access to my field, Deemster [W] granted a Possessory Title, not Absolute Title as was asked for and defended against.

Unusually, after the hearings, advice was received from the Land Registrar and yet more expensive letter tennis by the lawyers ensued, and this enabled additional evidence to be submitted by Mr [Z] before the summing up, really pushing adverse possession as discussed in the Land Registrar’s unhelpful submissions. I do not consider this to be fair.

The 77 page judgement declared that I had lost ownership of my access, but I had been given a ‘windfall’, in the words of Mr [Z], to allow me to still access the field.

This clearly did not go down well with [Y], who needed me to be land locked!

Little did Deemster [W] know that a future fresh argument might be devised to actually land lock me - which he certainly didn’t want to do when summing up in court and giving my property away.

When my father was shown that Adverse Possession was somehow proven for the period of 1950 to 1971, which was before even he owned the land, he sent UK law to me showing that this could not happen with land that was held in trust, which my land was during the period of time that the Deemster had settled upon.

Frustratingly, my advocate advised me that the Isle of Man had not adopted this position and therefore my chances of winning my land back at appeal were weakened significantly - particularly as the Attorney General William Cain in 1984 had referred in the affirmative to the situation regarding trusts being included within the scope of Manx Adverse Possession.

Thus, with potentially huge costs against me and with at least a new right of way in my favour, I couldn’t, and didn’t appeal - but as has been spelt out in the documentation, the Advocate for Mr and Mrs [X] and [Y] did appeal, even with them being the apparent victors.

Mr [Z] submitted this appeal a number of weeks late, presumably having waited to see if I would appeal first in order to see what I might have written. Without any funds, with the knowledge that land held in trust on the Island could also be stolen (for that is how I see Adverse Possession), and ignoring continued badgering from [Z] to take part, I could have no influence over the potential and lengthy discussions on matters of law, and moreover why should I take part?

If the Deemster gave me a right of way that I hadn’t asked for, and somehow it is shown that he shouldn’t have done so, then why am I liable for this?

As seems to be the norm when ignoring time limits set by Manx Courts the appeal went ahead anyway, on paper, resulting in the one small Right of Way concession in my favour

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106 Statement by Petitioner Mr Mark Cleator 20th January 2020 being quashed upon presentation of eighteen errors in law that were apparently made by the Land Commissioner, whilst he was merrily taking away my rights in their favour.

By association the Land Registrar is also complicit in this decision. If I made eighteen errors in anything I’d be unemployable!

Whether or not I wanted to appeal however, is negated by the very fact that it was unaffordable. The legal costs to date were devastating and I quite simply could raise no further money. It’s unaffordable.

Given that I was not eligible for legal aid, the assumption by the legal system is that I would still be able to take part in the appeal presented on Mr and Mrs [X]’s behalf using money that I must have available. Equity of Arms is not a concept that the system understands in any way. What about paying off the loans I already have from paying my own advocate to date?

The appeal documentation included a lengthy affidavit from the advocate Mr [Z] himself - presumably because he couldn’t get anything out of Mr and Mrs [X] who may well have already been satisfied with the result, if they were ever really interested.

The potential additional costs on top of what had already been spent, required to prove that the Deemster was not wrong on Mr [Z]’s eighteen points of law, would have been simply overwhelming.

Does this in itself not demonstrate the frankly ridiculous challenges one must overcome - eighteen errors - that Deemster surely must be incompetent? Or more likely, throw as much as possible into the pot in the hope that something will stick whilst utterly clogging up everything.

Yet, the Appeal Deemster, after being advised that primarily due to lack of further funds I must remain neutral, and following his one sided decision (for there was no argument to the contrary from me) that Deemster [W] was wrong to give me the right of way over land that up until this point belonged to me, thinks it’s perfectly reasonable for me to apply for a right of way after the event, totally ignoring of course the further enormous expense, wrangling with the [X]s, and of course Mr [Y] lurking in the background stating that he owns my actual field anyway! It is an impossible situation and there is no doubt that the Appeal Deemster is out of touch with the real world.

As expected, yet more stupid costs were thus directed towards me. I was ordered to pay 75% of the £20000 of charges built up over one month preparing the appeal documentation, with £5000 allocated to a transcription of the original hearing. Of course the Appeal Deemster thinks this is all fine and equitable, so I think I might change my job and become a transcriber of court proceedings - I could pay these figures off in double quick time at those rates!

Talking about rates, one month of preparation by Mr [Z] and the associated £20000 costs were, of course, incurred without there even being a hearing. Goodness knows what it would have added up to if it had actually gone to court!

For contrast, two to three years of Mr [Z]’s preparations, with four and a half days in court,

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107 Statement by Petitioner Mr Mark Cleator 20th January 2020 costs a mere £63000. I only have to pay 80% of that, so that’s OK then! Obviously the £20000 figure is an element of attrition, and I believe the figures are decided upon to cause maximum effect. When I was trying to have the caveat lifted from my field in early 2016, I told [Y] that a sale had been agreed in principle at the end of 2015 for £59950, and I was thus threatened with multiples of £60000 costs by letter, among various ideas of paying him for selling my land that he claims he owns.

He has a caveat on my field, and even if I were not land locked by the latest appeal decision, and attempted to use the right of way that I had been granted over what once was mine, then I would still have to challenge him to lift the caveat, at an advised cost of £60000 if I lost, which with the present system allowing attrition and never ending argument, and with the, fresh, 77 page adverse possession judgement as shiny new case law, I would surely lose anyway.

I lost the freshly awarded right of way over what until recently was the top of my access lane to my field because I had not asked for it in my submissions.

Given that I simply pointed out that Mr and Mrs [X] did not have absolute title to land that I owned, why would I be asking for a right of way?

Yet Mr and Mrs [X] were awarded possessory ownership of my land despite them not asking for it. This is one rule for one and another for another. The way the legal system has dragged me along is not fair, just, or equitable, and the many examples in my evidence demonstrate this across a number of cases, not only mine.

Moving back to the substantive decision, I have demonstrated in great detail the apparent omission of the Trusts clause in the IOM Land Registration Act, and point one of my petition discusses this as being a very serious omission, backed by the comments by the Attorney General in 1984 and supported by the opinion of my then advocates. However in my further investigations I believe the protection for this is actually in place in the Limitation Act 1982, and if this is the case then no new legislation is required.

However, if I am shown to be correct on this point then not only did the Attorney General explain the facts incorrectly in 1984 but the Land Commissioner has failed to give me the protection I would expect whilst indentifying a period such a long way back to find a way to relieve me of my family property.

After two months of research on his part due to the enormous amount of paperwork submitted by [Z] I could not blame Deemster [W] for not seeing this protection. It’s simply too much work and in truth, and entirely as planned, overwhelming.

But it must be corrected. This is not a normal situation, and when the committee finally absorbs all of the information that is yet to come out of the woodwork it will be patently obvious that I, and many others are the victims of a very shrewd operator.

To expand on my points in the Petition further, it is my observation that the entire principle of Adverse Possession is something that is little understood, and certainly the public at large would not believe that such an onerous law even exists.

Clearly it has been developed over time, why it exists is unclear, but it is obvious that it

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108 Statement by Petitioner Mr Mark Cleator 20th January 2020 should always be a very ‘safe’ decision when giving away someone else’s property, and the consequences of such actions should be closely studied.

Until Mr and Mrs [X] moved into their house I was making visits to my field as necessary, with various people and contractors, for various reasons, as one would.

By very clever argument I am now land-locked, the coroner has arrested my field, and more seriously, he has also arrested my family home!

Due to astronomic costs filtering through the legal system in my direction, over and above what I have already lost paying my own advocate I will NEVER be able to clear such debts, nor do I intend to. I do not accept responsibility for them and the only way they can be cleared would be by the sale of my family home.

This MUST happen if the debts are really my responsibility, as otherwise I might be declared a bankrupt, much to the delight of Mr [Y] I am sure, but the cost to Social Services will be exponentially higher when re-housing my family for very well known reasons that I do not wish to discuss in public.

The reality is that these debts are not mine, but those of a failed legal system being manipulated by clever people, and it has taken an event such as this, and a man in such a position as I, trampled over by the legal system one too many times, to bring these deficiencies to the fore.

Regarding the rules of court, I would have presumed that time limits are set to ensure fairness, but there is no fairness when it can definitely be assumed that late filing will be waived when submitted by an experienced advocate.

What this enables is extended time to produce massive amounts of documentation, which if being argued is simply overwhelming, as per the plan. When time limits are ignored, massive documentation leads to resultant massive decisions, and these are skewed in the direction of those who can afford to undertake massive amounts of legal argument.

This should certainly resonate with Douglas Corporation who have been struggling with what should be a basic planning matter involving Mr [Y] for fifteen years. They of course have public money, so they keep going, but against enormous resources even they cannot apply their rules adequately. As it stands The law no longer works in the way it was intended.

Spending my time protecting my deteriorating position, and the resultant unearthing of damning historic documents leads to a determination to expose once and for all the very evident pattern of dishonesty that has been going on for years, and it takes someone who has nothing left to lose to be prepared to go through the life changing process that leads to this enquiry today.

It is hardly a secret that there is a consistent and nefarious methodology being practiced using the courts, and the associated costs, to overwhelm and ultimately ruin ordinary citizens, and it could happen to any of you, any of the public.

Without sufficient access to justice, without a concerted effort to stop Deemsters

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109 Statement by Petitioner Mr Mark Cleator 20th January 2020 allowing time limits to be ignored, without consequences for misleading the courts, and without some level of control for what is obvious consistent, vexatious and downright nasty litigation - new precedent based on incorrect, uncontested judgements formed using questionable facts will be and is being created which feeds future judgements which are further and further away from what is right and fair.

What I would ask from this committee is the following:

For my family to be left alone, and my twin girls to have the opportunity to still go to university, despite my hard earned savings having been devastated by what appears to be an entirely self serving legal system.

Since my petition there has been an appeal. This was a travesty of justice and it needs to be looked at through the eyes of someone who has the benefit of realising why it was done. I expected an appeal judge to know the law, but now I realise he will only act on what he is given - and it was not my place to argue against 18 errors in law.

I would like the Trusts clauses in the Adverse Possession rules to be clarified, and if necessary enacted.

In addition I believe that Adverse Possession ought to be entirely re-evaluated with a view to clarifying why it is necessary, and when or whether it is fair, before things get further out of hand.

Equity of Arms MUST somehow be established. Currently, unless a person has unlimited time of unlimited money, he cannot protect him or herself against a determined wealthy opponent, and the Deemsters, even when advised, do not take note of the situation.

As per my petition a monitoring system is required for the highlighting and recording of particular comments in final judgments where clear misleading of the courts has been shown.

The knowledge of this being in place would quickly stem clever manipulation of the courts which is shown to have been identified by Deemsters in various judgments, particularly if stiff penalties were in place - removal from the Bar would focus the mind somewhat.

Currently the rules of court are entirely flouted, and in my opinion the system is

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110 Statement by Petitioner Mr Mark Cleator 20th January 2020 broken, to such an extreme extent that it is allowing serious miscarriages of justice on a regular basis.

The Isle of Man could lead the way in justice if such new systems were devised and implemented.

I am the victim of a serial litigator, but as there is at least one similar case being fought through the courts I prefer to use the phrase ‘parallel’ litigator, as it better sums up in one word that fact that this is an industry.

The evidence I have produced, combined with further evidence that will no doubt come to light once an interest is taken by the authorities should be sufficient enough for serious action to be taken in response to, but not limited to, every one of the points highlighted in my original petition.

After all this, I would like my land back, all of it. I would also appreciate my money back, and if possible I would like the last five years of my life back so that my children can experience a happier father through their entire primary school experience. They know what is going on, and at 12 years old they shouldn’t.

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APPENDIX 2: 20th March 2020 Written Submission of Mr Nick Arculus, Land Registrar

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Constitutional and Legal Affairs and Justice Committee.

Written responses to questions from Nick Arculus, Land Registrar.

These answers are prepared to inform members of certain issues around the subject of the Petition and the terms of reference of the Committee resulting from it. Every care has been taken to make the responses intelligible to members without extensive legal experience (while recognizing that at least one Member of the Committee does have such a legal background). The aim has been to produce concise responses and a certain amount of precision or detail will be absent. As such the answers are not intended to be legally definitive but more in the way of guidance allowing the Committee to ask further questions relevant for its purposes. The legal statements made are not being made in the same way as they would be made when providing guidance to the legal profession. The first answer is the longest by some margin.

1. What are the legal and theoretical justifications for a system of adverse possession and it is compatible with Human Rights laws? Does it remain as relevant today as it has for centuries?

1.1 Part 1 –The justification for adverse possession and its continuing relevance.

Legal Justification.

1.1.1. “Adverse possession is the process by which a person can acquire title to someone else’s land by continuously possessing it for a set limitation period, in circumstances where the owner either has, or is deemed to have, the right to recover the land.” Adverse Possession, Jourdan & Radley-Gardner.

1.1.2. Adverse possession is the method by which one party may acquire better title to land than anyone else including the notional holder of the documentary evidence of title. This may be achieved by, for example, taking possession of property without force, without secrecy, and without permission for a certain amount of time until such act of occupation is recognised at law as having created for the occupier a greater right to continue occupation and claim property in land against any other. A second stage is that the former proprietor’s rights are terminated against the possessor and the world. Thus the act of adverse possession eventually generates an unimpeachable lawful title that cannot be challenged by a former owner.

1.1.3. The first point to make is that the theoretical and legal justification of adverse possession differs between unregistered land and registered land. Unregistered title is relative whereas Registered title is absolute and draws legitimacy from the act of registration itself. The state guarantees registered land but not unregistered land.

1.1.4. The second is that there is a distinction to be made between the act of acquiring title to land by adverse possession and the act of losing the right to recover land lost to another by possession against you. The first act is acquisitive, the second extinctive. There are interactions between the two but it must be borne in mind that there is a theoretical gainer and a loser is all adverse possession proceedings. The operation of the Limitation Act 1984 is essentially negative in nature. The effluxion of the limitation period does not create a title in the adverse possessor but has the general effect of terminating the title of any former owner to whom the completed period of possession was adverse.

1.1.5. Estate ownership is fundamentally determined by behaviour rather than documentary record.

1.1.6. In this regard unregistered title is governed by a system of “relativity of title”: claims to land are secure only to the extent that no other person can assert a better claim. Deeds evidence control and matters relevant to possession. The ‘first-in-time’ principle operates so

115 that the person able to demonstrate first occupancy will be able to claim the best title which even if lost to another possessor gives rise to recover possession through the courts. The first in time principle confirms that “possession of land gives ownership good against everyone except a person who has a better, because older, title”.

1.1.7. This primitive concept of title derived from possession is modified by the barring of prior rights of recovery after the effluxion of the statutory limitation period. (21 years).

Adverse possession as theft of land?

1.1.8. Land is not a commodity that can be stolen as a matter of law. Title acquired by adverse possession appears akin to a primitive method of acquiring title without paying for it. This is simplistic and almost all systems of law have conceded that irrespective of the formal or documentary record of ownership, uncontested long possession of land must ultimately confer a good title upon the actual possessor. Intack land in the Isle of Man appears to stem ultimately from an act of enclosure adverse to that of the legal owner.

Theoretical justifications behind adverse possession.

1.1.9. A: psychological factors. The courts have historically been unwilling to remove land from a party who is in possession of land and has been for a long time because that person is likely to be more adversely affected by the removal of that land than will a party who has lost possession for a considerable period through neglect. Land ownership is expressed as gradually becoming disassociated from its paper owners and associated instead with its possessor. This takes me back to my earlier comment that most important aspect of adverse possession is the barring of the remedy of a former owner to recover land. In effect the law looks in the first instance not to the merit of the possessor but to the demerit of the one out of possession.

1.1.10. B: The quieting of possession. Land is of social utility and the ability of its owner to sell land or take security over it is a key component of our economy. The concept of factual possession for long periods giving rise to title “the quieting of possession” or ripening of possession into title is recognised of being of great social utility. This relates not only to adverse possession in the common sense but also to quieting disputes about boundaries. Limitation statutes therefore intend to prevent the rearing up of historic challenges to possession by barring them after a given period and thus reducing the social and legal costs incurred in endless litigation over matters of title. Deemster Cain expanded on this concept in connection with Manx title document as follows:-

1.1.11. “If a plan annexed to a conveyance is inaccurate, that inaccuracy will not be corrected by the passage of time unless subsequently a possessory title to the land is obtained. That requires adverse possession.” In Re Kenyon 1996-1998 MLR

1.1.12. C. Stabilisation of land titles

1.1.13. Unregistered conveyancing rests on the assumption that proof of continued de facto enjoyment of land by the vendor and his predecessors provides a good source of title for the purchaser. The stabilisation of title procured by the Limitation Acts therefore has clear benefit not just on the adverse possessor but also on third parties (eg purchasers, tenants, and mortgagees). In the absence of a long possession rule every transfer of real property would be jeopardised by the encroachment of ancient or stale claims in derogation of the transferor’s rights. In the words of Kevin and Susan Gray in their “Elements of Land Law”: Every grantor of land would be required to trace a documentary title back to the Garden of Eden; and every estate owner would live under the perpetual shadow of apprehended repossession at the behest of some earlier and more meritorious claimant of title.

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Conclusion -The continuing relevance of adverse possession.

1.1.14. Contrary to the apprehension that title by long possession connotes a species of legalised theft there is distinct merit in ensuring that land title ultimately conforms to lived boundaries (rather than the reverse). A consequence is the occasional uncompensated shift in wealth but the end result is an avoidance of the excessive social and economic cost of deducing title to land and the resultant sterilisation of land where the possessor is unable to sell land and accordingly will not invest in it.

1.1.15. It is wholly consistent with the pragmatic demeanour of the common law that estate ownership should crucially depend on sustained possessory control.

1.2. Part 2 -Compatibility with the Human Rights Act 2001.

1.2.1. In accordance with section 2 of the Human Rights Act 2001 courts and tribunals (and this is considered to extend to officers performing judicial functions for the purposes of Manx enactments) are obliged to take into account judgments and opinions of the European Court of Human Rights (ECHR).

1.2.2. One of the rights safeguarded by the ECHR is enshrined in Article 1 of the First Protocol (‘A1P1’). This is incorporated into Manx law by section 1(1) of the Human Rights Act 2001.

Article 1 of the First Protocol of the European Convention of Human Rights and Fundamental Freedoms (from the Human Rights Act 2001)

1.2.3. This effectively comprises three rules:

1.2.4. Every natural or legal person is entitled to the peaceful enjoyment of his possessions.

1.2.5. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

1.2.6. The preceding provisions shall not in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

1.2.7. A1P1 is in force in England by virtue of the Human Rights Act 1998 and the Court there has considered, from time to time, whether or not adverse possession, in relation to registered land, breaches any of the rules under A1P1. Arguments are available on both sides. The question was finally resolved by the decision of the Grand Chamber of the European Court of Human Rights in Pye v United Kingdom in which it was held that no part of A1P1 was violated by the law of adverse possession in relation to land registered under the Land Registration Act.

1.2.8. The Structure of the ECHR is that proceedings go to the ECHR once domestic remedies are exhausted. The Chamber of the ECHR is the first tier tribunal and then there is a Grand Chamber for hearing appeals. A Grand Chamber decision is the highest authority there is on matters on Human Rights Law and is so highly persuasive as to be effectively binding on the UK

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Supreme Court (and it is assumed on the Judicial Committee of the Privy Council when considering appeals from Insular courts). Accordingly, it is also binding on the courts in the Isle of Man and the Land Registrar when determining matters relating to Adverse Possession applications.

1.2.9. The effect of this decision is to render unarguable any suggestion that the operation of adverse possession in relation to unregistered land (where the justification for adverse possession is stronger than for registered land) in incompatible with Human Rights obligations.

1.2.10. No more needs to be said about the compatibility of adverse possession principles to human rights law because the highest possible juristic authority has already expressly confirmed that the regime complies with A1P1. Making rules relating to limitation and adverse possession is within the margin of appreciation of states.

1.2.11. The Petitioner suggests that adverse possession is in itself an infringement of his human rights. It is likely that in the light of the decision of the Grand Chamber of the ECHR that the Committee will conclude this suggestion is incorrect.

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2. How does the law of adverse possession affect the Land Registry and the title on the Register.

2.1. Before the existence of the Land Registry adverse possession occurred and as explained above would be evidenced on successive sales to the satisfaction of purchases or the courts. The Land Registry provides an alternative method of allowing owners to register their title howsoever it has been acquired.

2.2. Adverse possession may be recognised by the Land Registrar in two separate ways. The first is in the award of title for the first time to unregistered land. The second is when an adverse possession claim is made over land that is already on the register. The legal principles apply equally to both classes of land but the procedures differ. I will explain only the principles in connection to freehold land. Possessory, good and qualified leasehold titles are possible but an explanation of the technicalities will be beyond the requirements of the Committee at this juncture.

First registration. 2.3. On an application for first registration an applicant for the registration of freehold land may apply for an absolute title, a possessory title or a qualified title. The Registrar may award the class of title applied for, or a lower class of title, in reliance on a certificate of title submitted by an advocate or he may decline to do so or perform his own examination of title. This process is referred to as Title Adjudication and is theoretically an exercise in discretion of the Land Registrar as to whether or not to award title based on the evidence of title submitted. Principally evidence of title will be based on deeds demonstrating devolution of title but can also be based on sworn evidence claiming occupation and control based on adverse possession. Adverse possession can relate to the whole parcel of land claimed or to part of it only -where for instance written deeds do not contain accurate plans and ownership is claimed of less or more land than evidenced in the Deed record. There are 143 titles registered with possessory title out of more than 19,000 titles. I would estimate however that a far higher proportion of title include at least some aspect of adverse possession either in relation to boundaries or in their historic title devolutions. The principles of adverse possession are found very frequently in fact and therefore in legal transactions also.

2.4. Under the Limitation Act title acquired by adverse possession is defined as being “absolute and indefeasible”. Accordingly, technically it is open for applicants to apply for absolute title of land acquired by possession. The occurrence of this is generally confined to the corrective boundary type applications referred to above . Applicants will generally apply for possessory title when title is claimed by adverse possession. This is in accordance published guidance issued by the Land Registry in 2004 “Possessory Title or Adverse Possession and the Land Registration Act 1982”. This document is out of publication pending replacement a copy is circulated for the Committee’s notice. Such an application will typically be supported by statutory declarations relating to in excess of 21 years’ worth of possession and any other evidence of control (eg leases granted to tenants during that period, photographic evidence, evidence of building works etc.). Where the paper title owner can be identified Land Registry practice is to require that the paper title owner is put on notice and given the opportunity to oppose the application.

2.5. Depending on the facts of each case it is the general practice of the Land Registrar to order that the application be advertised to neighbours either by letter and/or by erection of a notice on the land and/or advertised in the local press or the Land Registry website at gov.im/landregnotices. We await the creation of an official government gazette in order to streamline and reduce the costs of this process. The process is designed to draw out any challenges to the award of title and thus to quiet the title itself. The act of registration may draw out pre-existing challenges but it does not create the disputes. The process aims to resolve them in a cost efficient, timely and just manner. The petitioner suggested in his oral evidence

119 that there was a step missing between the Land Registry and the Courts. This was unfortunate as in the petitioners case there was both an informal Land Registrar’s dispute resolution hearing and then a hearing by the Land Commissioner -both of which are Land Registry functions as opposed to Court function -the Land Commissioner is a very respected Deemster but when sitting as Land Commissioner his office derives from the Land Registration Act 1982. The case was then also heard on appeal by the Staff of Government (Appeals Division).

2.6. If parties object then the objection and registration will be heard and determined by the Land Registrar acting judicially although he may refer such a case to the Land Commissioner (currently Deemster Morris) who is the appellate authority designated under the Land Registration Act 1982. All decisions of the Registrar are subject to a right of appeal to the Land Commissioner.

Registered Land (s48 applications)

2.7. When a party is claiming adverse possession against land which is already registered the same limitation principles apply and the act of registration and the government guarantee that accompanies it does not afford significantly greater protection to the registered proprietor who has been dispossessed of his land.

2.8. However, in the case of registered land it is always the case that the Land Registry maintains the contact details of the registered owner and so the legal owner can be notified – provided they have kept their service address up-to-date in the Land Registry. The only other material difference is that if the Land Registrar determines following an objection that there should be a hearing, then either the Applicant or the objector may request that the matter be heard by the Land Commissioner. Generally parties avoid doing this because it closes off an avenue of appeal and the intention is that costs before the Land Registrar are lower than before the Land Commissioner.

2.9. The Land Registry Rules prescribe the type of evidence the Registrar or the Land Commissioner needs to be provided with specifically a Form 20 and a supporting declaration from the applicant plus a corroborated statutory declaration from an independent party or some other forms of documentary evidence if these are available. The registration will not be completed until after notice has been served on the registered owner and other party appearing from the register to be entitled to transfer or charge the land claimed.

Adverse Possession as a burden overriding registered land without registration.

2.10. Rights acquired or in the course of being acquired consequent on the Limitation Act are a burden on registered title. The principle is that the transferee of a registered estate takes free of all rights over land other than those recorded on the title register (Schedule 6 burdens) or to any Schedule 5 burdens which effect the land without registration. Rights in the process of being acquired have not created an indefeasible legal right but rather a different ownership right (a fee simple in possession) existing concurrently with and independently of the paper title owner’s title to the land. This title even where this is a registered estate in land is relative, like all pre- registration or non-parliamentary title, and gives title good against the world except those who are meanwhile able to claim better title. The limitation clock continues to run unaffected by a registration event. If this was not the case then an unperfected schedule 5 burden -a right in the course of being acquired by 21 years long user would have its 21 year period reset every time there is a registered conveyance of land.

2.11. Qualified title

2.12. There is another lower class of title which can be awarded where not enough is done to evidence possessory title. Where for example a party in possession has acquired land of someone

120 without any documentary title themselves -or with a short root (less than 21 years evidence of title). In this case registration can be made showing that a possessor’s claim to have acquired the land on x date by virtue of a conveyance. Such an award of title does not properly attract a government guarantee and really does little more than place the registered proprietor with the same type of relative title as found in the unregistered realm -i.e. title good against the world except those who are meanwhile able to claim a better title. With regard to qualified title, it is effectively only good against the people against whom the title owners claims to have derived title.

2.13. The effect of registration.

2.14. A technical provision of the Land Registration Act is that on first registration with possessory title the act of registration does not affect the enforcement of any rights adverse to or in derogation of the title of the newly registered owner.

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3. How does the law of adverse possession differ between England and the Isle of Man

3.1. The methodology of acquiring title by adverse possession is the same as regard unregistered land in England as it is to registered and unregistered land in the Isle of Man. The limitation period in the Island is 21 year across all types of claim other than for rights claimed over common rights or other profits or benefits in which case it is 60 years. For practical purposes 21 years can be treated as the limitation period. This has apparently been the case in the Island since at least the Customary Laws Act 1593. (There is no extended period for terminating rights in Crown properties as there is in the UK. There used to be period of 60 years in the Isle of Man until this was abolished in 1988.) The respective limitation period in England is 12 years or 30 against the Crown and 60 against Crown Foreshore. It is thus harder to lose possession of land in the Isle of Man but also harder to acquire it. Given former discussions as to the arguments for and against the public policy behind adverse possession it is not for me to say whether this longer period is more or less advantageous to society as a whole (compromised of citizens who may either be the losing or acquiring title owner). The longer limitation period does provide greater protection to the unregistered or registered paper title owner. In 2001 the Law Commission recommended in “Report on Limitation of Actions” Law Com No 270 (2001) that the limitation period be reduced to 10 years for all types of owner. This has not been implemented.

3.2. I have not had the opportunity to prepare a more comprehensive response to the question of the differences between the two jurisdictions but would direct the Committee to the appendix to Question 4 for a limited exegetical comparison.

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4. Taking a cross jurisdictional approach do you think trust beneficiaries are more or less fairly treated in the Isle of Man than in sister jurisdictions?

4.1. The petition itself refers to different rules relating to trust ownership, and which Mr Cleator in his evidence, claims he should have been protected by. Accordingly I will explain a technical difference between this aspect of the law in the Isle of Man and England. This was a difference which I had not previously considered.

4.2. I must state that there are a range of different trust relationships. I attended the Land Commissioner’s hearing of the case in which the petitioner was interested but did not see the papers. I have no recollection of a trust relationship being pleaded so cannot comment on that detail. I will address my answer to the treatment of successive interest owners since this appears to be the type of relationship described by the petitioner in his evidence to the Committee.

4.3. The specific technical point is that in the Isle of Man the 21 year period of limitation runs against all people entitled to an interest in land (whether or not this is an interest in possession or otherwise) whereas in England time only runs against parties in possession.

4.4. Example. A house is left in the will of Mrs A to her husband Mr A for as long as he shall live and then to my son, Juan absolutely. Mr A’s interest is an interest in possession. Juan’s interest is a successive interest contingent on the death of Mr A.

4.5. In this example, if a squatter (an adverse possessor) occupies the house in the Isle of Man for 21 years the rights of Mr A and of Juan are both extinguished and the squatter gains the title. If a squatter occupies the house in England for 12 years then only the rights of the party entitled to possession (Mr A) are extinguished. This means that even if the squatter obtains possession adverse to Mr A and Mr A’s rights of recovery are time barred, the squatter cannot gain legal title until the interest of Juan also become statute barred. (Special rules cover this situation. On the death of Mr A, Juan is entitled to possession and the squatter must then gain a minimum of 6 years possession adverse to Juan’s interest in possession. The Committee is directed to s15 of the Limitation Act 1980 (of Westminster)).

4.6. Given that the limitation period is 21 years (9 more than in England) the Committee may conclude that this already provides additional protection to Manx citizens.

4.7. In addition to 9 years greater protection the other difference between Manx and English law in this area is that in England, Juan as a successive interest holder, cannot sue for recovery of land in his own right -as he has no possessory interest. In the Isle of Man, Juan can sue in his own right as a successive interest holder to protect the contingent interest to which he will become entitled to in due course. Juan is also potentially entitled to compensation under the provisions of Schedule 10, Paragraph 4(2)(b) of the Land Registration Act 1982 if he loses the right to possess land he was entitled to an interest in remainder or reversion if but for such registration he would have fallen into possession.

4.8. The petition contains in this regard inaccurate and incomplete statement of laws. For example it is simply not that in case that in England no adverse possession can be claimed whilst a life tenant is in occupation and the ultimate beneficial owner has not yet come into possession. Time does begin to run from the date of adverse possession but the time barring of enforcement has a separate (shorter) period of additional time against a successive interest holder. What is true is that a trustee cannot claim adverse possession against the beneficiary to whom he owns a fiduciary duty.

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4.9. The statement at the begin of the Petition which refers to paragraph 12a of the Land Registration Act 2002 (England & Wales) refers in fact to paragraph 12a of Schedule 6 to that Act. In full it states that “A person is not to be regarded as being in possession of an estate for the purposes of this Schedule at any time when the estate is subject to a trust unless the interest of each of the beneficiaries in the estate is an interest in possession”. The difference created by the previous omitted text is considerable. The wording included means that a squatter may acquire title against land held on trust for successive interests provided all those successive interests have become interest in possession.

Conclusion

4.10. A preliminary view is that it is difficult to agree that changing the system to align it to the English model in all particulars would deliver greater security to Manx citizens in possession or with successive interests to protect.

Appendix to question 4. Comparative legislative extracts.

Adverse Possession in relation to land held on trust.

A question of limitation.

UK: Specially adapted rules of adverse possession regulate the position where land is held on trust.

The principle of statutory limitation of rights of recovery applies to equitable interests in land (beneficiary interests) in much the same way as to legal estates. In England and Wales the limitation period is 12 years and it is virtually impossible to acquire adverse possession against land registered in the Land Registry.

18. Settled land and land held on trust.

18(1) Subject to section 21(1) and (2) of this Act, the provisions of this Act shall apply to equitable interests in land. ... as they apply to legal estates.

Accordingly a right of action to recover the land shall, for the purposes of this Act but not otherwise, be treated as accruing to a person entitled in possession to such an equitable interest in the like manner and circumstances, and on the same date, as it would accrue if his interest were a legal estate in the land (and any relevant provision of Part I of Schedule 1 to this Act shall apply in any such case accordingly).

This is subject always to the proviso that a trustee’s title to trust land is never extinguished by reason of a stranger’s adverse possession until the rights of all the trust beneficiaries have been barred.

18(2) Where the period prescribed by this Act has expired for the bringing of an action to recover land by a tenant for life or a statutory owner of settled land— his legal estate shall not be extinguished if and so long as the right of action to recover the land of any person entitled to a beneficial interest in the land either has not accrued or has not been barred by this Act; and the legal estate shall accordingly remain vested in the tenant for life or statutory owner and shall devolve in accordance with the Settled Land Act1925; but if and when every such right of action has been barred by this Act, his legal estate shall be extinguished.

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18(3) Where any land is held upon trust and the period prescribed by this Act has expired for the bringing of an action to recover the land by the trustees, the estate of the trustees shall not be extinguished if and so long as the right of action to recover the land of any person entitled to a beneficial interest in the land either has not accrued or has not been barred by this Act; but if and when every such right of action has been so barred the estate of the trustees shall be extinguished.

18(4) Where— any settled land is vested in a statutory owner; or any land is held upon trust ; an action to recover the land may be brought by the statutory owner or trustees on behalf of any person entitled to a beneficial interest in possession in the land whose right of action has not been barred by this Act, notwithstanding that the right of action of the statutory owner or trustees would apart from this provision have been barred by this Act.

Adverse possession of trust land by a trustee himself can never bar the claims of beneficiaries except where the trustee is also a beneficiary and has acted ‘honestly and reasonably’ in making a distribution of trust property between himself and other beneficiaries.

21. Time limit for actions in respect of trust property.

21(1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action— in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use.

21(2) Where a trustee who is also a beneficiary under the trust receives or retains trust property or its proceeds as his share on a distribution of trust property under the trust, his liability in any action brought by virtue of subsection (1)(b) above to recover that property or its proceeds after the expiration of the period of limitation prescribed by this Act for bringing an action to recover trust property shall be limited to the excess over his proper share.

This subsection only applies if the trustee acted honestly and reasonably in making the distribution

Nor can adverse possession by a beneficiary (other than a beneficiary who is solely and absolutely entitled) bar the title of his trustee.

Schedule 1 Para 9.

Possession of beneficiary not adverse to others interested in settled land or land held on trust for sale

Where any settled land or any land subject to a trust of land is in the possession of a person entitled to a beneficial interest in the land (not being a person solely or absolutely entitled to the land), no right of action to recover the land shall be treated for the purposes of this Act as accruing during that possession to any person in whom the land is

125 vested as tenant for life, statutory owner or trustee, or to any other person entitled to a beneficial interest in the land.

Successive Interests under a trust or settlement

Where land is held in trust for successively entitled beneficiaries (eg a tenant for life (X) and a remainderman (Y), the completion of 12 years of adverse possession by a stranger against X normally bars X’s equitable interest under the trust or settlement concerned. However, this adverse possession can have no definitive effect upon Y’s interest as remainderman while X is still alive. On X’s death Y is allowed a further 6 years within which to bring proceedings, for the recovery of land from the squatting stranger.

15(2) Time limit for actions to recover land

Subject to the following provisions of this section, where— the estate or interest claimed was an estate or interest in reversion or remainder or any other future estate or interest and the right of action to recover the land accrued on the date on which the estate or interest fell into possession by the determination of the preceding estate or interest; and the person entitled to the preceding estate or interest (not being a term of years absolute) was not in possession of the land on that date; no action shall be brought by the person entitled to the succeeding estate or interest after the expiration of twelve years from the date on which the right of action accrued to the person entitled to the preceding estate or interest or six years from the date on which the right of action accrued to the person entitled to the succeeding estate or interest, whichever period last expires.

If X’s death intervened before the stranger’s completion of the 12 year period, Y’s own interest is not barred until the expiry of that 12 year period or until the end of 6 years following X’s death, whichever occurs later. Thus, if the adverse possession commenced 4 years before X’s death, Y has eight years from X’s death to oust the squatter. If, however, such possession commenced 10 years before X’s death, Y still has 6 years from X’s death within which to recover the land.

Position in Isle of Man:

Comparison of legislation cited above: s18 of the Manx Limitation Act 1984 states:

18 Land held on trust [P1980/58/18; VI p240/15] 4.11. Subject to section 21(1) and (2), the provisions of this Act shall apply to equitable interests in land, including interests in the proceeds of the sale of land held upon trust for sale as they apply to legal estates. (2) Accordingly a right of action to recover the land shall, for the purposes of this Act but not otherwise, be treated as accruing to a person entitled to such an equitable interest [“in possession” omitted] in the like manner and circumstances, and on the same date, as it would accrue if his interest were a legal estate in the land (and any relevant provision of Part I of Schedule 1 shall apply in any such case accordingly).

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There are accordingly no further provisions in section 18 of the Limitation Act regulating the additional protections for interests in succession or beneficiaries.

Section 21 of the Manx enactment replicates that of the UK Act:

21 Time limit for actions in respect of trust property [P1980/58/21] No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action — in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use.

Where a trustee who is also a beneficiary under the trust receives or retains trust property or its proceeds as his share on a distribution of trust property under the trust, his liability in any action brought by virtue of subsection (1)(b) above to recover that property or its proceeds after the expiration of the period of limitation prescribed by this Act for bringing an action to recover trust property shall be limited to the excess over his proper share.

This subsection only applies if the trustee acted honestly and reasonably in making the distribution.

Adverse possession can therefore bar a successive interest in land whether or not that party has a legal interest in the land or not.

This perceived unfairness is tempered by the provisions of the Limitation Act 1984 in that a right of recovery accrues to a beneficial owner whether or not he is in possession. A practical implication of this is that whereas in England the action for a beneficiary finding himself dispossessed from a future interest (were this possible) would have an action only against the trustee for breach of fiduciary duty. In UK the holder of a successive interest has a minimum of 6 years to recover. However, in the Isle of Man a beneficiary has the ability to take action directly to protect his interest which may otherwise be being lost by the inaction of the Trustee.

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5. Are Land Registration proceedings controlled by a cost regime?

5.1. Yes. Actions for first registration and for transfers of land including transfers by adverse possession and including the hearing of objections relating to both these types of land registration event are governed by Advocates (Conveyancing Fees) Regulations 2000 (SD675/00). This sets the fees Advocates may charge for providing conveyancing services and contains a 100% uplift for contentious proceedings before the Land Registrar in Land Registration proceedings.

5.2. The intention behind Registrar’s hearings is for them to provide an efficient, just and timely alternative to full court proceedings.

5.3. For more details please refer to the answer to question 7.

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6. Does the Land Registry have jurisdiction to determine applications for adverse possession? How many possessory titles are on the Register?

6.1. Yes, as set out above. The court also has jurisdiction. It is almost inconceivable that the Registrar would not feel bound by a judgment of the court although section 9 of the Land Registration Act only obliges the Registrar to do so in relation to orders made in connection with registered land. Even then, the Registrar has a power to apply for a court order to be varied.

6.2. The principle behind this is the Land Registrar is responsible in accordance with section 10 of the Act for the maintenance of the Land Register and for determining how titles are recorded on the Land Register. Court orders thus form part of the muniments of title for the Registrar to consider, as for example do laws passed in Tynwald.

6.3. The Registrar is subject to the jurisdiction of the Land Commissioner and of the court in relation to registered land. The significance of this provision is that the Registrar is responsible for the content and maintenance of the Register rather than the Court. Only where the Registrar has referred a specific matter to the Land Commissioner are other bodies able to compel the addition of land to the Register. Clearly in the case of a reference on appeal made directly in accordance with the Land Registration Act then there is no question of even this technical ability not to comply with an order of the Court.

6.4. There are 143 titles registered with possessory title out of more than 19,000 titles.

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7. Are Court hearings relating to registered land controlled by a cost regime?

7.1. As well as acting as Land Registrar I am an officer of the court but I do not speak for the court. The following is my understanding of the cost regime relating to adverse possession.

Costs in adverse possession proceedings.

7.2. Adverse possession applications may be heard either by the Registrar for the purposes of the Land Registration Act, by the Land Commissioner under the Land Registration Act 1982 jurisdiction or by the High Court.

7.3. Each forum has a different though similar cost regime.

7.4. The Registrar’s and the Land Commissioner’s cost jurisdiction both derive from rule 135 of the Land Registry Rules 2000. The costs jurisdiction of the Court stems from its inherent jurisdiction and is addressed through the Rules of Procedure of the Courts. The Land Commissioner (a Deemster) and the High Court essentially apply the same principles relating to cost award. That an unsuccessful party bears the legal costs of a successful party is an established principle in litigation (‘costs follow the event’). It is intended neither to punish or to reward either party but to ensure a successful party is restored to the position he would have been in had the unsuccessful challenge not been made. The Courts and the Land Commissioner have wide discretion as to whether or how to award costs and costs may not always “follow the event”. Awards of cost may be challenged and assessed in separate legal proceedings.

7.5. In a recent case the Land Commissioner awarded costs against an unsuccessful party (Mr Cleator) with a percentage reduction reflecting disapproval of some of the conduct/costs of the successful party.

7.6. Under the Land Registration Act 1982 the Registrar for the purposes of the Land Registration Act 1982 acts judicially as the first tier authority for the hearing and determination of any question, difficulties or dispute arising in any registration or other proceedings in the Registry. The Registrar has a similarly broad discretion relating to the award of costs and like costs in the High Court or before the Land Commissioner the exercise of this discretion may be appealed. However, it is the intention that the Registrars Hearing procedure should provide a less expensive route to redress than an action before the courts or the Land Commissioner. The Land Registrar, though legally qualified in accordance with the requirements of the Act, is not a Deemster. In practice the Land Registrar considers that the Advocates (Conveyancing Fees) Regulations 2000 (SD675/00) limits the fees chargeable by Advocates in land registration proceedings and accordingly limits the level of any cost award that the Land Registrar should be making in any hearings before him. These Regulations impose a maximum cost for conveyancing fees with a 100% uplift for contentious proceedings before the Land Registrar. A party in whose favour an order for costs is made may not recover more than he is liable to pay his own Advocates under the Regulations.

7.7. The cost regime in the Land Registry is not intended to punish applicants or to discourage applications being made in good faith or even in honest error. It is however part and parcel of seeking the benefits of the recognition by the Land Registrar of an additional right over land unsupported by a grant that if such an application is unsuccessful the applicant may expect to be responsible to any innocent objector in costs.

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8. Do you have any comment on the suggestion that there are occasions of parallel litigation being conducted in different fora relating to the same principles?

8.1. I am not in a position to respond to this authoritatively. However, I am aware that there are occasions when application for registration are opposed where this also often gives rise to applications to court for Status Quo applications (a form of interim relief peculiar to Manx law but which in effect requires matters to be restored to their prior position without prejudice to any actual legal determination of the fact of the matter involved). Parties often seek to have Status Quo applications determined in advance of substantive Land Registration proceedings being concluded. This can cause delays to the system and I as Land Registrar am now trying to ensure that parties understand that a substantive hearing within the Land Registration jurisdiction is not barred by the existence of interim proceedings before the court. The outcome of such Status Quo applications are not binding on the Land Registry and notice is not taken of the outcome of Status Quo applications in Land Registration proceedings. More could perhaps be done at a case management stage within the Courts to ensure that status quo applications and Land Registry hearings are not being conducted on the same matters in parallel.

8.2. There are also occasions when applicants apply for changes to boundaries or to the register to be made in the expectation that a change to the register will resolve neighbourhood disputes. This is rarely the case. If, for example, a neighbour infringes on a right that is already recorded on the register or is a right enjoyed by unregistered land the act of registration is in itself unlikely to settle inter-neighbour disputes. The Committee can imagine that covenants can be misunderstood and/or willfully broken both within and without the Registered Land system. Certainty of legal rights and obligations does not, as the court building itself testifies, operate to prevent infringement of rights in all cases.

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9. Are there any legal reforms that you might recommend within the Land Registry jurisdiction to improve the protections given to registered land owners?

9.1. Yes. In England and Wales, there is a far greater protection given to registered proprietors of land. This is in keeping with the theoretical justification behind Land Registration specifically that the Land Register should be a complete and accurate reflection of the state of the title to registered land at any given time. Clearly if the Registered owner can be dispossessed of land by adverse possession and unable to recover the land even though the new owner has not applied for registration then the register has ceased to be accurate (notwithstanding the technical operation of section 35 of the Land Registration Act 1982 in connection with schedule 5 burdens).

9.2. In England, a potential adverse possessor is required to notify a registered proprietor (at the service address held on the title register) of their intention to dispossess the registered owner of the land. The notice of intended dispossession cannot be served until 10 years of adverse possession has been acquired. The final 2 years required to bar the power of a registered owner to recover the property does not start to run until notice has been served. In effect therefore a registered proprietor is given 2 years to recover his property against a potential adverse possessor.

9.3. The benefit of such a system to the holder of large estates, charities, Governments and farmers for example is obvious to see. Rather than having to walk the bounds and maintain vigilance against an adverse possessor the potential claimant is required to notify the registered owner before the claim for adverse possession can be legally effective. From a point of increasing the take up rate by Government and other large landowners I would welcome the adoption of such a system.

9.4. I also feel that more could be done to recognise the judicial functions performed by the Land Registry. I routinely contact the legislative drafters to draw to their attention that the latest reforms affecting legal rights -contempt of court, the recent statement to support judicial independence all overlook the role performed not only by the legally qualified Registrar but also the Land Commissioner. The judicial functions performed within the Land Registry -which the petitioner described as being absent, are there and are used on an almost daily basis notwithstanding that the number of actual hearings we conduct is low. The number of referrals made to the Land Commissioner is also low. The Land Registry, in short performs a valuable role which is can easily be overlooked in promoting the smooth running of the property industry and safeguarding residents’ property rights.

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10. What is the process for possessory title to become absolute title?

10.1. This procedure is covered by section 25 and paragraph 1 of Schedule 3 of the Land Registration Act. There are various different reclassifications of title that can be applied for. If possessory title has been awarded in the absence of title deeds and these deeds subsequently turn up then an application could be made at any time to reclassify a possessory title as an absolute title. This requires a statutory declaration from an advocate confirming his satisfaction with the award of absolute title. The Registrar may serve notice before effecting such a change.

10.2. The Committee are probably more concerned with how a possessory title award as a result of adverse occupation may be effected. In such case an applicant is required to demonstrate that a further 21 years have elapsed since first registration of the estate and that the claimant (or his successor in title) remains in undisputed possession. The Registrar may serve notices before awarding the title. Because the register opened for registration in 2000 we have not yet used this method of reclassification.

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11. How does the adverse possession regime differ from the Land Registry requirements to register title (particularly with reference to the evidential requirements)?

11.1. The Land Registry operates in reliance on certificates of title supplied by advocates. The legislative basis for this is found in section 13(3) of the Act which states that:-

“It shall not be necessary for the Registrar to approve any title which is proposed to be registered under this Act, but he shall be entitled to withhold registration until he has received such information and documents as he considers necessary to justify him in registering the title applied for.”

11.2. This clause was added to the Land Registration Act 1982 in the Land Registry (Amendment) Act 1995. Hansard records that the intention of this was to make it unnecessary for the Land Registrar to approve every title on first registration and instead to rely on certificates of an owner’s advocate. In practice however the quality assurance ambitions of the Registry which aims to ensure that the Register is accurate require a great deal of additional work to be done on top of an advocate’s certificate. When, for example, a certificate is clearly wrong or where we can see that a certificate conflicts with something else already on the register we clearly cannot proceed without requiring further information.

11.3. So, I will explain the basic requirements we look for on a first registration. These are for us to be provided with evidence of identity of the applicant, evidence of occupation of the property, evidence of a good root of title and evidence of devolution from that good root to the existing proprietor. There are a broad range of other types of information we may require sight of before deciding to effect registration. The Registrar may also formally conduct his own more detailed examination of title or direct that such examination be performed by conveyancing counsel. There is no positive obligation on the Registry to accept a title onto the register - although as this is our primary statutory function we work to facilitate this wherever we can and to remove title defects or evidential absence where we can.

11.4. A function of Land Registration is the removal of technical blemishes on title and there are two great innovation in the Land Registration Act worthy of mention here.

11.5. The first is contained in various sections including section 15(1) of the Act which states that a consequence of registration is that on first registration of a person as full owner with an absolute title the land shall vest in that person whether or not it was theretofore vested in him. This power rejoices in the technical name of “statutory magic” and operates to empower the Registrar to cure defects and technical blemishes in title.

11.6. The second, relates more directly to cases where the Registrar performs formal title examination, for the Registrar is empowered (in language drawn directly from the Land Transfer Act of 1875 (of Westminster) if he is “of the opinion that the title is, notwithstanding a defect therein, a title the holding under which will not be disturbed, he may in his discretion, register the title”. In slightly more modern language an applicant must show something that is satisfactory to the mind of the Registrar that there has been such a long and uninterrupted possession or enjoyment and dealing with the property as to afford a reasonable presumption that there is an absolute title in fee simple.

11.7. In short, it must be recognised that across centuries of Manx and English law the paper titles and registered deeds brandished in land disputes have never been regarded as conclusive. When the arrogant nonsense of title terminology was stripped away, all that remained visible to the naked eye was the official enforcement of raw claims of physical possession. The cure lies in Land Registration.

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11.8. And so, it can be seen that the process of getting a bundle of rights over land evidenced in centuries of deeds onto the register is effectively an exercise of interpretation, judgment and discretion. In many applications there is nothing untoward and our excellent staff may act under guidance and in accordance with internal clerical policies to effect registration in a seemingly administrative way derived from familiarity with unregistered conveyancing and practices in the Isle of Man.

11.9. The same principles apply to applications for possessory title although the evidence provided for such a claim is usually less certain. This process may require notices to be served and we have empowered advocates to advertise their application in advance of lodging them with us to enable registration of possessory titles to be proceeded with swiftly.

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12. Are there legal reforms you would recommend (perhaps to the Limitation Act 1984) to improve the protection for owners of unregistered land?

12.1. There are methods that could be deployed to give greater protection to unregistered land owners. In my opinion the most effective would be to encourage unregistered owners to obtain the benefits of registration by applying to register their land. Such encouragement could extend to compulsion by increasing the range of events which trigger compulsory registration. We have implemented a reduction in the fees for unregistered owners to record cautions against first registration as a way for them to cheaply record their interest (if not prove it) over their land holdings.

12.2. Administratively we are working to make the content of the Register more readily viewable remotely. This is anticipated to ensure greater transparency for new applications and indeed existing registrations which conflict with the claimed property rights of other. We should also like to be able to broadcast contentious or high risk applications more effectively and economically through an official Government Gazette.

12.3. The basic problem with unregistered title is that it is relative and it is of a quite simply different quality to registered land. It is customary freehold tenure as opposed to title absolute.

12.4. Deemster Cain in his judgment In re Kenyon summed up the relative difference between unregistered and registered land ownership in the following terms:

12.5. “The system of registration of title under the Land Registration Act [then in an advance state of preparation] will …provide for purchasers of land a guarantee that what they believe they have bought, they will in fact own. Unfortunately, the present system of conveyancing cannot provide that guarantee. This case illustrates the defects of the present [unregistered] system”.

12.6. Of course, the limitation act could be repealed entirely and no time bar against the recovery of land could be introduced meaning that it would be impossible for an owner of paper title to be dispossessed of land to which he could show incontrovertible and unimpeachable title. However, so rare, is unimpeachable title that a repeal of the act would make land largely impossible to sell as there could be no possibility of the passage of years quieting and removing disputes over title.

12.7. On the issue before the Committee arising from Mr Cleator’s petition, if I am asked whether I consider the Isle of Man legislation prevents beneficial interest holders from enjoying their land then again I do not think consider this to be the case. The limitation act enables beneficial interest holders to directly enforce their potential rights for a period of 21 years. I consider 21 years to be ample time for a beneficial interest holder to take action against any potential occupant of his land who is occupying adverse his rights and those of his prior interest holders and is so doing as of right, without secrecy, without force and without permission.

12.8. On the grounds of social utility the economic advantage of having land used by those with a desire to use land as opposed to not used by those who, although the legal owners, exercise so little care with their ownership that they do nothing after 21 years to oppose adverse possession is to my mind the policy question that this Committee should seek to answer.

12.9. That said I would also repeat the case that in the case of Registered title, where all the historic justifications for disbarring claims after the passage of years sound a little hollow, there are sound policy reasons to strengthen the protection of a rightfully registered proprietor against adverse possessors.

12.10. I would not recommend changes to the Limitation Act to create technical obstacles in the acquisition of possession adverse to interests held on trust because I believe these risks to be better and more efficiently protected in the Isle of Man than in comparator jurisdictions.

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12.11. Other comments:

12.12. The role played by the Land Registry in the administration of justice and provision of legal services is often overlooked by legislators. For example, the recent Council of Ministers (Amendment) Act 2019 in which Tynwald made the admirable statement to respect the rule of law did not extend to the Land Registrar or apparently the Land Commissioner. Nor has the Land Registry been asked to input into this Committee’s work on its review of Legal Services and on greater Ministerial input into the administration of legal services. In contrast, the establishment of a Land Registry, was one of the key outcomes of the Clothier report. Land Registration provides a platform for considerable improvement in public information and administration in a legal controlled environment and this potential is often overlooked.

12.13. There is an intention to conduct a consultation on general changes to Land Law in the Isle of Man which the Law Society have been pushing for me to progress for some time and which former Minister Thomas and Minister Skelly support me in taking forward.

20 March 2020 (with minor updates to 22 July 2020)

Nick Arculus Land Registrar Solicitor (England and Wales)

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APPENDIX 3: 15th February 2021 Further Written Submission of Mr Nick Arculus, Land Registrar

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Constitutional and Legal Affairs and Justice Committee.

Law of Adverse Possession

Further written responses to questions. Nick Arculus, Land Registrar.

Further to my oral evidence to the Committee of 24 July 2020 and to my written evidence of 20 March 2020 I have received further questions from the Committee and make the further responses and issue a correction and clarification as set out below.

References to Question numbers and to lines are references to the Hansard record CLAJ-AP, No2/2020.

1. Additional triggers to registration. Additional response (further to Q35, lines 276-278)

1.1The Isle of Man Land Registry is part of the 5 Registries Group –a grouping of the Land Registries of the British Isles: (1) The Isle of Man, (2) Northern Ireland, (3) The Irish Republic, (4) Scotland and (5) England & Wales.

1.2 The table shows a comparison of triggers for compulsory first registry between jurisdictions:-

Triggers Eng &Wales Ireland N Ireland Scotland Isle of Man Sale      Conveyance not on  X X  X sale [including appointment of new trustees] Gift on marriage  X X  X Assent (probate)  X X  X First Charge  X X  X Second Charge X X X  X Minimum Lease term 7 years 21 years 21 years 20 years 21 years Rentcharge X X  X X Profits a prendre X X  X X Freehold on X X X  X registration of a lease (Receipt of X X X  X Government grants tied to land ownership, eg Agriculutral credits)

1.3 As stated in my evidence all increases in triggers tend to lead to a more rapid completion of the title register. In the context of the Isle of Man Register the triggers most likely to lead to improvements in the coverage of the register are those highlighted in green above.

1.4 Consideration could be given to lowering the term of leases for them to be registrable. However this is understood to be unwelcome amongst the property profession.

1.5 Registration of the freehold estate in advance of a lease being granted would complement the proposals for the creation of a Landlord’s register.

1.6 The largest classes of unregistered land on the Island are Government land and agricultural land.

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1.6.1 Linking the availability of Agricultural Payments with registration of land (highlighted light green) had, in Scotland, the effect of obtaining almost universal registration of agricultural land on a voluntary basis.

1.6.2 Under section 24A of the Land Registration Act 1982, the Council of Ministers may already direct any department, statutory board, local authority, joint board and Manx Museum and National Trust to register all or a specific part of its property holding. The largest single decision that Government could take towards filling gaps in the title register would be to register its own landholding.

2. The ability for a trustee to acquire compensation from the Land Registry for erroneous registration (Q83, lines 1118-1120)

2.1 I provided evidence at 1083 that in the Isle of Man a party may commence an action for the recovery of land whether or not he has an interest “in possession” whereas in England the position is that only a party entitled to possession may make a claim for recovery. In the Isle of Man a party with a successive interest (a beneficiary or remainderman) has a right of action in addition to the party with a right of immediate possession. If successful, this might lead a party being successful in obtaining a possessory title against the party notionally with an interest in possession but it would be a qualified title terminating when the successful successive interest holder’s right to possession crystalises eg Land is held on trust for A for life and thereupon for B absolutely. C could acquire possession against A but B, if he has successfully brought an action for the recovery of land within the 21 year limitation period, will be entitled to the property on A’s death even if A’s interest has been extinguished by C’s act of possession.

2.2 I then elaborated to cover a separate cause of action available to trustees and/or beneficiaries to make a claim for compensation against the public guarantee of title provided by Treasury under the Land Registration Act 1982. The specifics of the question I was asked is not an example that has been experienced to date. I offered to confirm my comments after the Committee session concluded. Under s66 and Schedule 10 of the Act, compensation may be claimed following an error in registration. The principle, the Committee will recall, is that following an error on the register which has caused loss (eg loss of land) the party with a claim against the Land Registry in entitled to financial compensation rather than revestment of their lost title.

2.3 The limitation periods internal to the Act are that where a party is wrongfully deprived of ownership of an interest in possession they have a six year period from the act of registration to make a claim against the Treasury. In the case of an estate in remainder or reversion (a successive interest) then the owner of the successive interest has a period of 6 years from when the estate “would, but for such registration or omission, have fallen into possession”. This is not an entitlement to compensation for having lost their successive rights by result of an act of adverse possession but rather a right for such a party who has been deprived of a right as a result of an error in registration of title.

3. Correction

In response to Q71 at 845 I stated in part of my response that the fees for a voluntary registration were nil. This is incorrect. There is a minimum fee of £75 for a voluntary registration where transactional fees have been paid into the Register of Deeds. This accounts for the majority of voluntary applications. Exceptionally, where there is a voluntary registration and no fees have been paid into the Deeds Registry then the fee will be based on percentage value in accordance with the Land Registration General Fees and Duty Order 2019 (SD2019/0230).

4. Clarification

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In response to Q53 at 547 I responded to the Clerk that an appeal against the decision of the Land Registrar was a re-hearing. While this is not incorrect it would have aided clarity if I had also informed the Committee that in accordance with Rule 130 of the Land Registry Rules the default position is that the Land Registrar will be the respondent to any appeal. Accordingly, while an appeal may be a re-hearing of the substantive case there are also characteristics of any appeal which appear similar to an action in doleance.

15 February 2021 Nick Arculus Land Registrar Solicitor (England and Wales)

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APPENDIX 4: HM Land Registry Notice to the Registrar in Respect of Adverse Possession Application (NAP Form)

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Any parts of the form that are not typed should be completed in black ink and in block capitals.

If you need more room than is provided for in a panel, and your software allows, you can expand any panel in the form. Alternatively use continuation sheet CS and attach it to this form.

For information on how HM Land Registry processes your personal information, see our Personal Information Charter.

1 Title number(s) of the property:

Insert address including postcode (if 2 Property: any) or other description of the property, for example ‘land adjoining 2 Acacia Avenue’. Enter the name(s) of the person(s) 3 The applicant: making the application for registration based on adverse possession.

Conveyancers should give their 4 Your name and address: client's name followed by their own name and address for service.

Place 'X' in the appropriate box(es). 5 I consent to the registration of the applicant(s) See Practice Guide 4 for further information. I require the registrar to deal with the application under paragraph 5 of Schedule 6 to the Land Registration Act 2002 I object to the registration on the grounds stated in panel 6

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6 Give details of the grounds of your objection:

If a conveyancer is acting for the 7 Signature of the person person named in panel 4, that conveyancer must sign. If no named in panel 4 or conveyancer is acting, the person(s) their conveyancer: mentioned in panel 4 must sign. Date:

WARNING If you dishonestly enter information or make a statement that you know is, or might be, untrue or misleading, and intend by doing so to make a gain for yourself or another person, or to cause loss or the risk of loss to another person, you may commit the offence of fraud under section 1 of the Fraud Act 2006, the maximum penalty for which is 10 years’ imprisonment or an unlimited fine, or both. Failure to complete this form with proper care may result in a loss of protection under the Land Registration Act 2002 if, as a result, a mistake is made in the register. Under section 66 of the Land Registration Act 2002 most documents (including this form) kept by the registrar relating to an application to the registrar or referred to in the register are open to public inspection and copying. If you believe a document contains prejudicial information, you may apply for that part of the document to be made exempt using Form EX1, under rule 136 of the Land Registration Rules 2003. © Crown copyright (ref: LR/HO) 05/18

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Available from:

The Tynwald Library Legislative Buildings DOUGLAS Isle of Man, IM1 3PW British Isles

Tel: 01624 685520 April 2021 E-mail: [email protected] Price: £25.55