Stephanie Tozer and Kester Lees look at the law on an applicant’s “reasonable belief” and whether it must last up to the date of a claim
The Land Registration Act 2002 introduced a new regime for adverse possession – mere possession is no longer enough. Claimants must now also, if required to do so by the owner, prove one of the statutory conditions set out in paragraph 5 of Schedule 6. Under the third condition, in paragraph 5(4), an applicant must establish that:
“…for at least 10 years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him…”
This condition appears to have been intended to apply where there was a boundary dispute. However, it is being relied on much more widely – in any case where the claimed land is adjacent to other land owned by the claimant and the boundary between the two has not been determined.
This new reasonable belief requirement raises a number of questions, in particular the period during which the reasonable belief must subsist.
Zarb v Parry
The only appellate consideration of this question is in Zarb and another v Parry and another [2011] EWCA Civ 1306; [2012] 3 EG 88, where the Court of Appeal indicated that the belief had to subsist, and be reasonable, throughout the last 10 years of the period of adverse possession. Arden LJ suggested that a claimant had to act “promptly”, and apply for registration “as soon as” he learns that he is not the paper owner. It was also implicit in Lord Neuberger’s comments that it would not be good enough to establish a reasonable belief for any 10 years out of the period of adverse possession.
It appears that the statute requires such an interpretation: if the reasonable belief did not need to last until the application is made, and may exist for any 10-year period, the words “ending on the date of the application” would be entirely redundant.
Later developments
However, some advocates and judges have relied on the obiter nature of the comments to ignore the Court of Appeal’s guidance altogether.
In McLeod v Brown and Jones REF/2013/0833, in the First-tier Tribunal, Judge Green held:
“Although the belief must have been had during the period of adverse possession, and must have been held for at least 10 years, it does not have to be established as continuing up to the date of the application. If that were the case few, if any, applications under Schedule 6 in which the third condition was in issue could ever succeed. By the time the application is made, and for a period beforehand, the applicant knows that the title to the land in question is registered in the name of another person, hence the application. Once they have such knowledge, necessarily: the applicant cannot believe that he or she owns the land, or such a belief cannot be reasonable… The words ‘ending on the date of the application’ qualify the period of adverse possession, and do not apply to the period of at least ten years during which the reasonable belief as to ownership is required.”
In October 2014, Lewison LJ gave permission to appeal to the Court of Appeal in Homes and Communities Agency v Missing and another, an unreported case raising this point (which has subsequently settled), commenting:
“The Zarb v Parry point is one of importance and the argument advanced has real prospects of success.”
In support of Zarb v Parry
Judge Green’s concerns can be readily answered. Parliament must be taken to have intended that the principle of de minimis non curat lex (which applies to all statutes unless a contrary intention appears) would be imported into the 2002 Act, and paragraph 5(4)(c) in particular. So, any short gap between the reasonable belief ending and the date the application was made, which was de minimis in the circumstances, would be ignored.
Furthermore, the statutory conditions are exceptions to the general principle that possession for a 10-year period would not entitle the squatter to claim land in the face of an objection by the owner, and as such should be interpreted restrictively. This is all the more powerful an argument when one appreciates that: the purpose of the reforms to the adverse possession doctrine introduced by the 2002 Act was to narrow the scope of the adverse possession, so that the register was more likely to be an accurate reflection of the ownership of land; and parliament must have intended to give appropriate weight to the paper owner’s right (under Article 1 of the First Protocol to the European Convention on Human Rights) not to be deprived of his property except in the public interest.
How quickly to claim?
That leaves the question of what period should be considered “de minimis”. The period will vary from case to case, with factors including: the length of the period of possession; the amount of work needed to prepare the application; and whether the claimant had alerted the paper owner to his claim prior to making the application. That said, generally the period is likely to be measured in weeks rather than months or years. The key is to identify the time period that a reasonable person acting promptly would need in order to get the application prepared. Assuming that he identifies and consults a solicitor and witness statements in support of the application then need to be prepared, it seems unlikely that a period of less than 28 days would suffice in a run-of-the-mill case. However, two months might well be too long, absent special factors.
The Law Commission may examine this as part of their current project on land registration. But, unless and until there is a statutory amendment or further judicial clarification, the prudent course is to issue the application as soon as possible after discovering that the land is not registered to the claimant.
Stephanie Tozer and Kester Lees are barristers at Falcon Chambers
