Allyson Colby considers provisions in the Land Registration Act 2002 to deal with adverse possession claims in the context of boundary disputes
Key points
• Landowners can stop the adverse possession clock running by physically excluding squatters from land
• Squatters should act swiftly if their title is called into question or they are physically excluded from land
• Buyers should think carefully before accepting assurances that boundary disputes have gone away
Boundary disputes cause bad feelings. They are stressful and time-consuming. The financial outlay usually exceeds the value of the land and the disharmony may even blight a sale. The courts have repeatedly warned landowners against litigation over boundaries, but disputes between neighbours are often difficult to resolve. Some cases turn on the interpretation of paper maps, sometimes by reference to physical features on the ground when a plan was drawn. However, this will not necessarily provide a complete answer if the law on adverse possession is also in play.
Zarb v Parry [2011] EWCA Civ 1306 is the first Court of Appeal decision on provisions in the Land Registration Act 2002 (LRA 2002) which were enacted specifically to deal with adverse possession claims in the context of boundary disputes. The provisions apply where the squatter owns adjacent property and has been in adverse possession of the disputed land in the reasonable belief that he was the owner of it.
A dormant dispute
The Zarbs bought their property first and notified the owners of the adjoining property that their boundary was in the wrong position. The neighbours tried to resolve the dispute, but the Zarbs were not in occupation and did not respond. The Parrys bought the adjoining property – and the boundary dispute – two years later. They were informed that there had been a dispute, but that it had been resolved.
The dispute erupted again in one fraught hour on a summer day when the Parrys discovered the Zarbs pulling down fencing and banging new fence posts into their lawn. It took 20 minutes to persuade them to leave. The parties referred their dispute to the RICS Neighbour Dispute Service, but the Zarbs rejected the report in favour of the Parrys and resorted to litigation. The trial judge agreed that the Zarbs had paper title to the land, but upheld the Parrys’ claim that they had acquired title by adverse possession in accordance with the LRA 2002.
The legislation enables squatters to apply to the Land Registry to be registered in place of a registered proprietor after being in adverse possession for 10 years. However, a registered proprietor can require a squatter to prove that he is entitled to be registered as the owner on one of three statutory grounds prescribed in the legislation. If the registered proprietor takes advantage of these new provisions and none of the grounds exist, the squatter’s application will fail, even though he has been in adverse possession for the requisite period.
In the case of a boundary dispute, the squatter must show that he owns adjacent land and that, for at least 10 years of the period of adverse possession ending on the date of the application for registration, the squatter and his predecessors in title reasonably believed that the disputed land belonged to them. The exact line of the boundary between the properties must remain undetermined for the purposes of the LRA 2002 and title to the disputed land must have been registered for more than a year: paragraph 5(4) Schedule 6 LRA 2002.
Belief in ownership
The provisions create difficulties for proprietors with disputed boundaries. Paragraph 5(4) requires a squatter to have reasonably believed that the land belonged to him during the 10 years immediately preceding the application for registration. The effect of this is that a squatter will lose his right to be registered as proprietor if his belief in his ownership becomes unreasonable, even though he has been in adverse possession for more than 10 years. The moral is that squatters should apply to be registered with title to land along a boundary line as soon as they learn facts that make it unreasonable to believe that the land belongs to them.
In the Court of Appeal’s judgment, the Parrys’ belief was reasonable. The boundary dispute was dormant when they bought the land and they were told that it had been resolved. It remained dormant and did not resurface for several years. The report produced by the surveyor appointed by the RICS confirmed the Parrys’ belief that their boundaries were correct and nothing occurred between receipt of the report and the issue of proceedings to upset that conclusion.
Interruption to adverse possession
If the squatter’s adverse possession is interrupted or comes to an end, the adverse possession clock will be reset to zero. The law also gives the paper title owner another advantage in that physical exclusion for a very short period will suffice to start the clock ticking again: Randall v Stevens (1853) 2 E&B 64.
The LRA 2002 gives squatters a short breathing space in such circumstances. It allows them six months to make an application for registration: paragraph 1(2) Schedule 6 LRA 2002. Therefore, a squatter who acts promptly after being evicted can still apply to be registered as the proprietor of the land. However, squatters who fail to apply within six months may be unable to satisfy the conditions in paragraph 5(4).
There was no evidence to suggest that the Parrys’ predecessors had taken possession with the consent of the paper title owner. Consequently, the adverse possession clock had started running more than 10 years previously. The court was not referred to any authority that was binding on it on the question of what constitutes an interruption to a period of adverse possession, but agreed that the squatter’s possession must be brought to an end. The Parrys never actually lost control to the Zarbs and had remained in adverse possession of the land.
Nonetheless, it was a close run thing. Had they been out, or away from home, the Zarbs might well have dispossessed them. The Parrys would then have had six months to apply for registration or face potential defeat on the ground that they did not satisfy the conditions in paragraph 5(4).
Buyers beware
Boundary disputes have a habit of reappearing until finally resolved. The court advised buyers to consider asking neighbours to agree and register any boundaries that are in dispute before buying land. Defining the boundaries will add cost and delay, but is preferable to protracted litigation. If a neighbour refuses to co-operate, the buyer should be aware – and beware – of the risks attached to the purchase.
