Registered land – Adverse possession – Defence and counterclaim – Respondent registered proprietor bringing claim for possession of house – Appellant occupiers applying to amend defence and counterclaim – District judge allowing amendment – County court allowing respondent’s appeal – Appellants bringing second appeal – Whether meaning of adverse possession for registered land same as unregistered land – Whether adverse possession under Land Registration Act 2002 inconsistent with licensee – Appeal dismissed
H was the registered freehold proprietor of a house at 13 Hartley Road, Chorlton-cum-Hardy, Manchester. She issued a claim for possession against the appellants contending that they were occupying the property without her permission and were trespassers. Following H’s death, the claim was continued by the respondent (her husband).
The particulars of claim pleaded that: the house had been occupied by her father until 1990, after which she believed that her brother had been letting it out; the appellants went into occupation without permission; they had never been tenants, sub-tenants or licensees; and despite being sent a notice demanding possession, they continued to occupy the house without her permission.
The appellants served a defence and counterclaim which they subsequently sought to amend. The amendments stated that, since 2009, the first appellant had been both in possession of the property as a licensee and in adverse possession. The respondent objected to the amendment arguing, among other things, that the proposed amendment was internally contradictory.
A deputy district judge granted the amendment on the basis that any problems with the facts were matters for cross-examination at trial. The county court allowed an appeal against that decision concluding that, as the meaning of adverse possession for registered land was the same as for unregistered land, the amendments were not coherent and permission to amend should not have been given.
The appellants brought a second appeal, arguing that the amendments did not depend on adverse possession, and the judge was wrong to proceed on the basis that adverse possession under the Land Registration Act 2002 was always inconsistent with being a licensee.
Held: The appeal was dismissed.
(1) The judge had been entitled to conclude that the amended pleading clearly averred both that the first appellant had been in possession as a licensee and in adverse possession since 2009. The document could not be read as suggesting alternative positions. They were plainly meant to stand together. The judge was not obliged of her own motion to suggest or consider alternative ways in which other parts of the pleading could be salvaged. She was entitled to decide the case on the basis of the submissions made.
(2) The time limit for an action to recover unregistered land was 12 years. That was the effect of section 15(1) of the Limitation Act 1980; the section simply referred to “an action to recover land”. Time did not begin to run until the person with the right of action had discontinued possession or been dispossessed, and someone else had taken adverse possession: that was the combined effect of paragraphs 1 and 8(1) of Schedule 1 to the 1980 Act.
In unregistered conveyancing the vendor proved title by showing that he and his predecessors had possessed the land for a time sufficient to exclude any reasonable probability of a superior claim. It was by limitation that any such claim would have been extinguished; adverse possession and limitation together were the foundations of a good title: White v Amirtharajah [2022] EWCA Civ 11 considered.
(3) The 2002 Act effected a radical change in the application of limitation to registered land. By section 96(1) of the 2002 Act, no period of limitation ran under section 15 of the 1980 Act against a proprietor of registered land, and accordingly by section 96(3), section 17 of the 1980 Act did not operate to extinguish the registered proprietor’s title. By section 97 of the 2002 Act, effect was given to Schedule 6, which concerned the registration of an adverse possessor as proprietor of a registered estate.
By paragraph 1(1) of Schedule 6, a person who had been in adverse possession of registered land for 10 years might apply to be registered as proprietor. But by paragraph 1(3), a person might not make such an application if he was a defendant in possession proceedings. Notification of any such application was given to the registered proprietor, and the proprietor might require the application to be dealt with in accordance with paragraph 5. If he failed to do so, the adverse possessor was entitled to be registered.
If the registered proprietor did require an application to be dealt with under paragraph 5, the adverse possessor was only entitled to be registered if one of three conditions was met: (i) he had the benefit of a proprietary estoppel; (ii) the applicant was for some other reason entitled to be registered as proprietor of the estate; (iii) the applicant owned adjacent land to the land he claimed, the exact boundary between the two had not been settled and the applicant had for at least 10 years reasonably believed that the land he claimed belonged to him.
The practical effect was that, in most cases, there was no limitation period applicable to a claim for possession of registered land. Unless the person in possession could bring himself within one of the narrow exceptions in Schedule 6, it did not matter how long he had been in possession, or how much he might have reasonably believed himself to have some right to the land.
(4) Against that background, the appellants’ submission that it was not always the case under the 2002 Act that adverse possession was inconsistent with the person in possession being a licensee was unsustainable. Paragraph 11 provided that a person was in adverse possession for the purposes of Schedule 6 if a period of limitation would run in his favour under section 15 of the 1980 Act were it not for section 96 of the 2002 Act. That made it impossible to conclude that the requirements for adverse possession under the 2002 Act were fundamentally different from those applicable to unregistered conveyancing. The judge was right to conclude that adverse possession under the 2002 Act continued to mean what it had always meant, such that one could not be in adverse possession of a property if one occupied it under a licence. The draft pleading was unsatisfactory as it was internally self-contradictory and the appropriate course was to disallow the pleading in its entirety: Bridges v Mees [1957] Ch 475 considered.
Thomas Grant KC and Stephen Hackett (instructed by RHF Solicitors) appeared for the appellants; Michael Walsh and Richard Miller (instructed by Fladgate) appeared for the respondent.
Eileen O’Grady, barrister
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