Failure to register title to land acquired by adverse possession within the transitional period provided by the Land Registration Act 2002 means the right is lost unless there is actual occupation of the land which is obvious.
The High Court has dismissed an appeal over interpretation of the 2002 Act on adverse possession in Clapham and others v Narga [2023] EWHC 3337 (Ch).
The case concerned the location of the boundary between 24, 25 and 26 the Green, Thrussington, Leicestershire, owned by the claimants, and Brook Barn, owned by the defendant, and the claimants’ entitlement to be registered as proprietors of two strips of land between their properties and the defendant’s.
Brook Barn lay to the north of the claimants’ properties and was separated from them by a brook. On the north side of the brook was a steep bank at the top of which was a fence. The claimants argued that the land up to the fence formed part of their respective titles either because it was conveyed to them or they had acquired it by adverse possession.
The judge rejected the claim that the disputed land was conveyed to the first and second claimants but found that the claimants had all acquired title to the areas claimed by adverse possession by October 2000, prior to the registration of title to Brook Barn in March 2003. Consequently, under the three-year transitional period following implementation of the 2002 Act, the defendant held the title to the disputed land as trustee under section 75 of the Land Registration Act 1925.
The third condition of paragraph 5 of Schedule 6 to the 2002 Act dealt directly with the claimants’ situation and enabled them to be registered as proprietors of the disputed land if application was made more than a year after the defendant’s title was registered: the application land was adjacent to their land, the boundary had not been determined under section 60, they had been in adverse occupation for at least 10 years and reasonably believed the land belonged to them.
Their failure to register title to the disputed land before the transitional period expired on 12 October 2006 meant the right was lost and their only option was to establish that they were in actual occupation of the disputed land and such occupation was obvious on a reasonable inspection of the land when the defendant purchased it. The judge found that while they were in occupation their occupation was not obvious. The claims for declaratory relief were dismissed.
Louise Clark is a property law consultant and mediator
