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