Limitation of Actions Consultation - Law Commission

in full to such actions. This would mean that there would be an initial limitation
period of three years from the date on which the plaintiff acquired the requisite
knowledge, subject to a long-stop period of ten years from the act or omission
giving rise to the cause of action.
13.115 We do not, however, think that it would be appropriate to apply the core initial
limitation period to land-related actions. In many cases the defendant’s trespass
will be discoverable immediately, or very soon thereafter. This would mean that in
such cases the limitation period would have been reduced from twelve years to
three. We believe that this would be unacceptably short. On the other hand, in
cases where there was an issue as to whether the plaintiff had knowledge of the
adverse possession, there would often be enormous uncertainty. For example, in
the frequently occurring case where the adverse possession consisted of a minor
encroachment over the plaintiff’s boundaries, it would be necessary to ascertain
not only when the adverse possession began, but when the plaintiff knew (and
ought to have known) that the defendant was in possession of the piece of land in
question, and that the piece of land belonged to the plaintiff. The difficulty which
this would involve might mean that, in such difficult cases, the only time when a
defendant would be certain of having obtained title to the land would be on the
expiry of the long-stop period, and this would remove the usefulness of applying
the initial limitation period based on discoverability.
13.116 We have of course made it clear elsewhere in this paper that, in most contexts, the
degree of uncertainty inherent in applying a discoverability test is a price worth
paying for the fairness of the result. 148
But in relation to adverse possession, and its
effect on the ownership of land, we consider the need for certainty 149
to override
any considerations which might justify the application of a discoverability test.
Moreover, discoverability would seem to sit uneasily with the rule that time runs
against an owner regardless of the owner’s knowledge or intention in relation to the
adverse possession, 150
and we are reluctant to do anything, by applying a
discoverability test, which might be seen to alter the nature of adverse
possession. 151
13.117 However, we believe that actions to recover land should be subject to the long-stop
period of ten years which we are advocating as part of our core regime. The
commencement date that we are proposing for the long-stop period is the date of
the act or omission giving rise to the plaintiff’s claim, rather than the date on
which the plaintiff’s cause of action arose. 152
When applied to claims for the
recovery of land, this would translate into the date on which the defendant first
began adverse possession of the property.
148 See paras 12.9 - 12.13; 12.21 above.
149 Under the present law there will seldom be absolute certainty as to when the limitation
period began because it will often be unclear exactly when adverse possession began, and
because the limitation period may have been postponed by factors such as an
acknowledgement of title or by the disability of the owner. This degree of residual
uncertainty would remain if our provisional recommendations became law.
150 See paras 6.23 - 6.25 above.
151 See paras 6.19 - 6.35 above.
152 See paras 12.105 - 12.108 above.
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