Louise Clark analyses a dispute between neighbours involving the effect of 12 years’ adverse possession prior to 13 October 2003.
Key points
- A squatter must establish physical possession of the land and an intention to exclude the world for the relevant period
- Establishing 12 years’ adverse possession prior to 13 October 2003 entitles the person in possession to be registered as proprietor of the land
In Walter and another v Stott [2023] REF/2021/0470, the First-tier Tribunal (Land Registration Division) considered the application of the law on adverse possession prior to the implementation of the Land Registration Act 2002.
The background
The case concerned adjacent properties in Boardman Fold Close, Middleton, Manchester, which were built in 1970 and sold under 999-year leases. A disputed triangle of land was demised by the lease of No 4 and included on its title plan.
However, the original owners of No 6, William and Theresa Slater, laid out a garden which included the disputed land. They treated it as part of their garden without objection from the original owner of No 4, David Goodfellow, or his successors in title, Derek and Angela Perrin, who acquired the property in 1988.
The applicants, Sarah and Gerard Waters, acquired No 6 from the Slaters in July 2001 and carried on using the disputed triangle of land as part of their garden without objection. A dispute only arose after the respondent, Andrew Stott, and his wife, Andrea, acquired No 4 in November 2018 and shortly after alleged that the applicants had stolen the disputed land. Andrea died in July 2022.
The applicants applied to the Land Registry to be registered as proprietors of the disputed land based on adverse possession. The respondent objected and the dispute was referred to the FTT in August 2021.
The law
As a matter of law, a squatter must establish that throughout the period in question:
1. they were in possession of the land in issue, ie that they have been dealing with it as an occupying owner might and that no one else has done so; and
2. they intended to exercise such custody and control on their own behalf and for their own benefit – to exclude the world at large (JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2002] PLSCS 163).
The decision
The judge decided that witness evidence and historical photographs showing the physical layout over the years established that the disputed land had been treated as part of the No 6 garden since 1970.
The likelihood was either:
(i) that when the path and boundaries of No 6 were laid out on the ground at the time of construction the disputed land was incorporated at the front of No 6 to give the property a roughly equivalent frontage to No 4 and the change was never reflected in the developers’ standard lease plan for the properties; or
(ii) that William Slater, a keen gardener, took it on himself to incorporate the disputed land within the front garden of No 6 for the same reason.
Whichever explanation was correct, that remained the position thereafter.
The Slaters had been in possession of the disputed land without the consent of the owners of No 4. Knowledge of how the disputed land was being used, without objection, did not constitute consent.
Operation of the statutory provisions
Time started to run in 1970 for the purposes of “adverse possession” as defined in paragraph 8 of Schedule 1 to the Limitation Act 1980.
Prior to implementation of the 2002 Act, if a person was in adverse possession of registered land for 12 years, then on expiry of that period, the land – in this case the registered lease – was deemed to be held on trust for the person in possession, who was entitled to be registered as proprietor under section 75 of the Land Registration Act 1925.
So, by 1983, the land was held by David Goodfellow on trust for the Slaters. The Perrins would have continued to hold the disputed land on trust for the Slaters since their beneficial interest under the bare trust would have had overriding status and bound the Perrins under either section 70(1)(f) or (g) of the 1925 Act – as a right acquired under the Limitation Act 1980 or the right of persons in actual occupation of the disputed land, unless the rights were not disclosed following enquiry. There was no evidence that enquiry was made of the Slaters when the Perrins purchased No 4 in 1988.
The Slaters’ rights under the trust constituted a possessory title, which passed to the applicants in 2001 when the Slaters relinquished possession to them without the need for any formal transfer.
When the 2002 Act came into force, the 1925 Act was repealed. Schedule 12, paragraph 18 of the 2002 Act provides that where, immediately before 13 October 2003, a registered estate was held in trust for a person under section 75, that person is entitled to be registered as proprietor of the estate.
As for the respondent, a transferee of land subject to the Schedule 12, paragraph 18 right takes the land subject to that right provided that those with the right were in actual occupation of the land at the date of the transfer, unless those rights were not disclosed following enquiry or their occupation was not obvious on inspection.
The applicants were in actual occupation of the disputed land in November 2018 when No 4 was transferred to the Stotts. There was no suggestion that they were asked about the disputed land prior to the transfer and their occupation of the disputed land would have been obvious on inspection.
The respondent and his wife acquired No 4 subject to the applicants’ rights to be registered as proprietors of the disputed land.
Louise Clark is a property law consultant and mediator
