The Land Registration Act 2002 includes provisions that enable squatters to apply to the Land Registry to be registered in place of a registered proprietor after being in adverse possession of land for 10 years. However, the legislation also includes provisions that make it more difficult for adverse possessors to succeed. This is because registered proprietors can now require adverse possessors to prove not just that they have been in adverse possession for 10 years but also that they are entitled to be registered as owners.
An adverse possessor will be entitled to be registered in place of a registered proprietor in the case of a boundary dispute if the adverse possessor and his predecessors have, for the last 10 years at least, reasonably believed that the land belonged to them. Zarb v Parry [2011] EWCA Civ 1306 is the first case to have been reported on this and provides practitioners with valuable guidance about how these provisions operate.
The Court of Appeal emphasised that the adverse possessor must reasonably have believed that the land belonged to him during the 10 years immediately preceding the application for registration. This means that an adverse possessor may lose his right to be registered in place of the proprietor if his belief were to become unreasonable as a result of facts that subsequently come to light, or something that occurs, even though the adverse possessor has possessed the land for more than 10 years.
The court decided that the adverse possessors had reasonably believed that they owned the land, even though their neighbour had queried the boundary line some years previously, because the neighbour was not in residence and the boundary dispute had gone to sleep. However, the court might have reached a different decision on different facts. Consequently, adverse possessors would be well-advised to apply for registration immediately, in the event of any doubt about their ownership.
Paragraph 1(2) of Schedule 6 of the 2002 Act is also important. It offers adverse possessors a six-month window in which to apply for registration after being physically excluded from land, failing which the adverse possession clock will be reset to zero. The authorities suggest that physical exclusion for a brief period will suffice to start the clock ticking again. Consequently, adverse possessors could be caught out while they are out, or away from home.
In Zarb, the registered proprietor had begun to evict the adverse possessors from the land, but abandoned the attempt when challenged. Had the proprietor succeeded, the adverse possessors would have had six months to apply for registration, after which they might have failed to satisfy the requirement that they had, for the last 10 years, reasonably believed that the land belonged to them.
The case also suggests that buyers should be warned to think carefully before accepting assurances that boundary disputes have “gone away”. Arden LJ suggested that neighbours should be asked to confirm boundaries with the Land Registry, in a manner capable of binding their successors, in such cases to avoid disputes at a later date. Alternatively, buyers can bring matters to a head by applying for registration as owners of the land themselves.
Allyson Colby is a property law consultant
