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,
(c) where the estate is leasehold, the proprietor of any superior registered 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:
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
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
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.
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
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.
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:
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
30 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.
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
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.
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