Did you miss? Adverse possession – Schedule 6 LRA 2002 – ‘reasonable belief’-10-year period

The facts

The respondent (B) had been the registered proprietor of an area of land since September 2002. The appellants (Rs) had been the registered proprietors of adjoining land since July 2004. A dispute arose between them over a strip of land that formed part of B’s registered title but had been used by Rs as part of their garden and, later, for the erection of a new property.

After occupying and using the land for several years, the Rs applied to the Land Registry in December 2019 for the registration of ownership of the disputed land claiming adverse possession. B contested the application. The matter was referred to the FTT.

Judge Bastin (previous member and now honorary member of Gatehouse, I hasten to add) found that Rs were in adverse possession of the land. The Judge also found that Rs had reasonably believed that they were the owners of the land from 2004 until approximately February 2018, when the process of obtaining planning permission for the new property had revealed that such a belief could no longer reasonably have been held. There was therefore a gap of around 21 months between the ending of the 14-year period of reasonable belief and the making of their application. Judge Bastin held that Rs could successfully rely on the ground of justification and Section 5(4)(c) should be interpreted to mean any 10-year period.

The UT agreed with the FTT’s construction but considered that it was bound by the decision in Zarb v Parry [2011] EWCA Civ 1306 (whereas the FTT had considered the relevant dicta in Zarb to be obiter) and allowed B’s appeal.

The decision

The issue for the Supreme Court was the construction of para.5(4)(c) of Schedule 6 which reads “for at least ten years of the period of adverse possession ending on the date of the application”, the applicant had to have reasonably believed that the land to which the application related belonged to them. The argument before the Supreme Court focused upon whether the 10 years of reasonable belief of ownership required for registration under paragraph 5(4) of Schedule 6 to the LRA 2002 must be the 10 years immediately preceding the date of the application, or whether it could be any period of 10 years within the period of adverse possession.

Lord Briggs, with whom the other justices agreed, gave the judgment of the Supreme Court. The Supreme Court concluded that the 10 years of reasonable belief could be held within any period of time, and that it did not have to be held immediately before the application. An application for registration of title to adjacent land along an undefined boundary could not be done quickly. B’s contention that it was an underlying purpose of this part of the LRA 2002 that applications should be made promptly, if reliance was to be placed on adverse possession under the boundary condition, was rejected. The structure of the adverse possession part of the LRA 2002 expressly left the applicant free to choose between applying for registration or waiting to see if they were evicted, or waiting to see whether their neighbour sued them for possession. Those were real choices to make, which Parliament must be assumed to have deliberately made available for good reason.

The interpretation was also unattractive as it would encourage neighbourly disputes by requiring an immediate application to HM Land Registry upon being made aware of the ownership issue rather than negotiating a resolution or engaging in any other form of ADR.

B also contended that Article 1 of Protocol 1 of the European Convention on Human Rights (protection of property) required the court to resolve any statutory ambiguities in favour of that which would yield greater protection to proprietary interests. Lord Briggs dismissed this argument. The reduction in the scope for adverse possession to operate by way of expropriation of registered title to land, fashioned by the 2002 Act, placed a large obstacle in the way of B’s submission as the European Court of Human Rights had found that the pre-2002 LRA regime of adverse possession was compliant with Article 1 of Protocol 1 in JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR.

Lesson learnt?

Clarification that the practically unrealistic suggestion that an application for adverse possession had to be made immediately upon that belief in ownership being shaken, advanced in Zarb v Parry [2011] EWCA Civ 1306, [2012] 1 WLR 1240, is welcome. Applicants must instead prove that they reasonably believed that the land belonged to them for any 10 years within the period of adverse possession. Adverse possession will thus remain a fruitful argument in boundary disputes.

Article by Lina Mattsson