Limitation of Actions Consultation - Law Commission

usually be the time when the land came to be in adverse possession, as defined in
the 1980 Act. 138
13.110 The difference in the present limitation treatment accorded to such actions reflects
the substantive differences in the nature of land-related actions compared to other
actions. This is illustrated by the different consequences of the expiry of the
limitation period for land and other actions. In actions not related to land, though
the expiry of the limitation period will sometimes leave the underlying right
unenforceable, this will not usually be the case. Where a limitation period has
expired in respect of an action for personal injury, though the victim cannot
recover damages in respect of that injury, the underlying right not to be subjected
to negligently caused harm is unaffected. The victim can take action to protect
that right if anyone in future causes him harm. Where a limitation period has
expired in respect of a breach of contract, although the victim can take no further
action in respect of that breach, he has not necessarily lost all his contractual rights
(particularly if the contract required the performance of a series of obligations over
a period of time). The position with respect to actions for the recovery of land is
totally different. Where the limitation period has expired, and the landowner has
lost the rights to possession of the land, he has lost all rights in respect of that
land. 139
Title to the land will have been lost.
(2) Reform Proposals in Other Jurisdictions
13.111 The approach adopted by other law reform bodies to the reform of limitation
periods for land-related actions has varied widely, reflecting the different land
registration systems adopted in each jurisdiction. In British Columbia, once land
has been registered, and a certificate of indefeasible title has been received in
respect of that land from the registrar, that title cannot be defeated by someone in
adverse possession, no matter how long the period of that adverse possession. 140
In
New Zealand, the possibility of obtaining land by adverse possession once that
land has been registered has been severely limited. 141
In contrast, the systems of
138 Schedule 1, para 8.
139 This distinction does not depend on the categorisation of the consequences of the expiry of
the limitation period as “barring the remedy” or “extinguishing the right”. Even if we were
to propose that in all cases the expiry of the limitation period should extinguish the right,
the distinction between actions to recover land and other actions would remain. It reflects
the differences in the character of the rights involved.
140 See Limitation Act RSBC 1979, s 12 and para 10.99 above. This enacted the
recommendation of the Law Reform Commission of British Columbia, which noted in
their 1974 Report “In British Columbia, the system of registration of title has long
prevailed over that of acquisition of title by adverse possession. The implementation of the
recommendation to formally abolish the latter system is little more than a tidying up
exercise.” (Report on Limitations, Part 2 - General, LRC 15 (1974) p 50).
141 Under s 64 of the Land Transfer Act 1952, no title or interest in land can be acquired
adversely to or in derogation of the rights of a registered proprietor. This is subject to the
Land Transfer Amendment Act 1963, which, in limited circumstances, allows a person in
adverse possession for not less than 20 years (in practice normally 30 years) to seek a
certificate of title despite the existence of a registered proprietor. However, the application
can be defeated by proof of a better legal or equitable title. See the New Zealand Law
Commission, Report No 6, Limitation Defences in Civil Proceedings, NZLC R6 (1988) paras
348 - 352, and para 10.79 above.
358