Limitation of Actions Consultation - Law Commission

the limitation period running from the time when the right of action originally
accrued. 13
However, if the transferor of the land was in possession at the date when
the assurance took effect, and no-one has been in possession under the assurance
(so that no right of action had accrued before the assurance took effect), the right
of the person entitled to the land under the assurance to bring an action to recover
the land is treated as accruing on the date when the assurance took effect. 14
Example 1 D starts squatting on P1’s land in 1993. P1 does not deal with the
land. P1’s title is extinguished, by adverse possession, in 2005 (12 years after
1993).
Example 2 D starts squatting on P1’s land in 1993. P1 sells the land to P2 in
1996. P2’s title is extinguished, by adverse possession, in 2005 (12 years after
1993).
Example 3 D starts squatting on P1’s land in 1993 but leaves in 1994. P1 sells
the land to P2 in 1996. D returns to the land in 1995. P2’s title is extinguished, by
adverse possession, in 2007 (12 years after 1995).
6.9 The Act also contains provisions to deal with the problems, now rarely
encountered in practice, posed by a defective disentailing assurance of land which
is subject to an entail. 15
If any person takes possession in reliance on the defective
disentailing assurance, section 27 of the 1980 Act (described by one commentator
as “convoluted”) 16
provides that the assurance shall be treated as operating to bar
the issue in tail, with retrospective effect, regardless of its defects, once that person
or anyone else, other than a person entitled to possession under the settlement, has
been in possession of the land for twelve years after the time when the assurance
could have effectively barred the entail. 17
(b) Future interests in land
6.10 Where the interest in land is a future interest, such as an interest in reversion or in
remainder, the right of action will be treated as accruing when the interest falls
into possession through the determination of the preceding interest, provided that
the person entitled to the preceding interest was in possession of the land at that
13 Section 15(4).
14 Schedule 1, para 3. The date when an assurance takes effect is not defined in the 1980 Act:
it must be strongly arguable, in the case of registered land, that a transfer would take effect
when it is registered.
15 Under the Fines and Recoveries Act 1833 an entail can be barred if the tenant in tail
executes a disentailing assurance (eg a conveyance), whereupon, as long as the
requirements of the statute are complied with, the grantee will take a fee simple, free from
the subsequent interests. A disentailing assurance may, however, be defective because, eg,
the requisite consents were not obtained from the protectors of the settlement. See R E
Megarry and
H W R Wade, The Law of Real Property (5th ed 1984), pp 83 - 85.
16 T Prime and G Scanlan, The Modern Law of Limitation (1993), pp 180 - 181.
17 Section 27(2). The time specified in s 27(2) is the time at which the assurance, if it had
been executed by the person entitled to the entailed interest, would have operated, without
the consent of any other person, to bar the issue in tail and the estates and interests taking
effect on the determination of the entailed interest: s 27(3).
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