The reference in schedule 6(12) of the Land Registration Act 2002 to a trust which prevents time accruing for the purposes of adverse possession means a conventional trust, not the statutory trust which arises under section 33 of the Administration of Estates Act 1925.
The Court of Appeal has dismissed an appeal on this issue in Nazir & Anor v Begum [2025] EWCA Civ 587.
The claim concerned a strip of land running between 37 Lower Ashton Road and 1 Gurbax Court in Thornbury, Bradford. Lower Ashton was owned by the appellants’ father who died intestate in March 2010. Letters of administration were obtained by the appellants who acquired title to the property and the disputed land. In August 2022 they declared by deed of trust that they held the disputed land on trust for themselves.
The respondent owned Gurbax Court and claimed title to the disputed land by at least 10 years’ adverse possession. Her defence to possession proceedings brought by the appellants – under section 98 of the 2002 Act – succeeded before the county court judge who directed that she be registered as proprietor of the disputed land.
The appellants appealed relying on schedule 6(12) of the 2002 Act which provides that a person is not to be regarded as being in adverse possession of an estate at any time when the estate is subject to a trust unless the interests of each of the beneficiaries in the estate is an interest in possession.
The High Court was satisfied that for such a trust to exist there must be identifiable property, a trustee and beneficiaries who can enforce the trustee’s duties. None of this exists in the administration of an estate. Personal representatives are not trustees in the conventional sense Williams, Mortimer and Sunnucks on Executors, Administrators and Probate 22nd Ed. at 48-06.
The Court of Appeal agreed. The reference in schedule 6(12) of the 2002 Act was to a conventional trust with a separation of legal and beneficial ownership between a trustee and beneficiaries. The relationship between a personal representative, the assets in an estate while it remains unadministered and a residuary legatee’s interest under section 33 was not a trust in the conventional sense.
The “trusts” under section 33 were akin to “duties” in respect of the assets: to preserve them; deal properly with them; and apply them in the course of the administration for the benefit of those interested in them Commissioner of Stamp Duties v Hugh Duncan Livingston [1965] AC 694.
Louise Clark is a property law consultant
