Limitation of Actions Consultation - Law Commission

land registration adopted in Alberta and Western Australia (variants of the Torrens
registration system adopted throughout Canada and Australia) 142
do allow for the
acquisition of title by adverse possession.
13.112 British Columbia has abolished, 143
and New Zealand has recommended the
abolition, of the doctrine of adverse possession. 144
Alberta 145
and Western
Australia 146
have recognised that actions related to land are substantively different
to other actions, and so should be governed by their own limitations regime.
Reform proposals in these jurisdictions have been more limited. There has been a
move to regard mortgages as no different from other debts, so that the general
provisions on limitations can be applied to them, subject to only two exceptions
(namely an action by a mortgagee in possession to foreclose on the loan, and an
action by a mortgagor in possession to redeem the loan).
(3) Options for Reform
13.113 It does not seem to us to be appropriate here to adopt the route followed by some
of the other common law jurisdictions which have recommended that actions to
recover land should not be subject to any limitation period, so abolishing the
doctrine of adverse possession. In contrast to British Columbia and New Zealand,
in England a possessory title is recognised, under section 75 of the Land
Registration Act 1925, even where the land occupied is registered with title
absolute. The squatter’s ability to be registered as proprietor of the occupied land
as of right was introduced by the Land Registration Act 1925. 147
We do not
believe that fundamental reform of the system of adverse possession is within the
scope of an investigation of the law on limitations. Instead we shall focus on
whether the current regime of limitation law for land-related actions should be
harmonised with our core regime.
(a) Actions to recover land
13.114 If limitation periods for actions to recover land are to be harmonised with the core
regime, then the first question to ask is whether the core regime should be applied
142 See Alberta Law Reform Institute, Limitations, Report No 55 (1989), p 74 and Alberta
Limitations Act 1996 c L-15.1, s 3(4); Law Reform Commission of Western Australia,
Report on Limitation and Notice of Actions, Project No 36 Part II (1997), paras 14.26, 14.28.
143 Limitation Act RSBC 1979, s 12. See n 140 above.
144 New Zealand Law Commission, Report No 6, Limitation Defences in Civil Proceedings, NZLC
R6 (1988), para 361.
145 Institute of Law Research and Reform, Alberta: Limitations, Report for Discussion No 4
(1986), paras 3.63 - 3.78; Alberta Law Reform Institute, Limitations, Report No 55 (1989),
p 39.
146 Law Reform Commission of Western Australia, Report on Limitation and Notice of Actions,
Project No 36 - Part II (1997), paras 15.25 - 15.35.
147 Under the Land Transfer Act 1875 (which introduced the system of registration of title in
England), a squatter could not obtain a registered title by dispossessing a registered
proprietor unless the registered proprietor only had a possessory title. This was changed by
the Land Transfer Act 1897 to allow the squatter to apply for rectification of title in his
favour, but this remedy lay in the discretion of the court, and did not apply where the land
had been sold for valuable consideration. See further E Cooke “Adverse possession -
problems of title in registered land” (1994) 14 LS 1.
359