Louise Clark explains how Court of Appeal authority determined an adverse possession claim.
Key points
- 10 years of reasonable belief of ownership of land must end on date of application for adverse possession
- Court of Appeal authority binds lower courts, irrespective of logic
Applicants for adverse possession of registered land who rely on the reasonable belief condition in paragraph 5(4)(c) of Schedule 6 to the Land Registration Act 2002 must establish 10 years of adverse possession ending on the date of the application, the Upper Tribunal (Lands Chamber) has confirmed in Brown v Ridley and another [2024] UKUT 14 (LC); [2024] PLSCS 19, allowing an appeal from a decision of the First-tier Tribunal.
Background
Richard and Sarah Ridley owned Valley View in Consett, County Durham, which they purchased in 2004. In 2002, Alistdair Brown had acquired for development an area of rough, uncultivated land, part of which was adjacent to the south-west boundary of Valley View. The dispute concerned a strip of land on the boundary within Brown’s title which had been enclosed and fenced by the Ridleys’ predecessors in title.
In March 2018, the Ridleys obtained planning permission to construct a new dwelling – Moonrakers – adjacent to Valley View. The new dwelling was constructed between June 2019 and October 2020. The south-west corner of the house encroached into the disputed land.
Adverse possession requirements
In December 2019, following correspondence between the parties, the Ridleys applied to be registered as proprietors of the land on the basis of adverse possession under Schedule 6 to the 2002 Act. Brown, as registered proprietor of the land, objected.
The Ridleys relied on the third condition in paragraph 5(4)(c) of Schedule 6, which required them to establish that:
(a) the application land was adjacent to their land;
(b) the line of the boundary had not been determined;
(c) for at least 10 years of the period of adverse possession ending on the date of the application they reasonably believed the land belonged to them; and
(d) the estate was registered more than a year prior to the date of application.
It was agreed that (a) (b) and (d) were met, the issue was whether the Ridleys met (c), the reasonable belief condition.
The FTT decision
The FTT concluded that the Ridleys had been in exclusive possession of the disputed land since their purchase of Valley View, reasonably believing it to be theirs, until the date of their application.
The judge decided that paragraph
5(4)(c) should be construed as meaning any 10-year period and not one that must end on or close to the date of application. If he was wrong on that, then the Ridleys had a grace period, once their reasonable belief came to an end, in which to make the application, provided they acted promptly.
He found as fact that it was more likely than not that, by February 2018, when the Ridleys submitted their planning application, they knew of the discrepancy and so did not have a subjective belief that they were the registered proprietors of the disputed land. The almost two-year delay in making their application meant that it was not made promptly or within a reasonable period of time.
The 10-year period
In the words of Lord Nicholls in R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 1 EGLR 129: “Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.”
The real question for the tribunal was what the words “ending on the date of the application” in paragraph 5(4)(c) refer to. Was it the relevant period of adverse possession – in which case the 10-year period could be any period of 10 years within that period – or was it to the period of 10 years during which the reasonable belief must be demonstrated – in which case the period must be the 10 years ending on the date of the application? Both readings were possible.
The UT agreed with the FTT that an interpretation of the words as referring to the period of adverse possession so that the reasonable belief could be demonstrated in any 10-year period was a better fit with the language. This was supported by the consequences for the operation of the adverse possession regime in Schedule 6 if the alternative interpretation prevailed.
An application for registration is ordinarily made after the applicant realises they do not have registered title to the relevant land but, from the point of that realisation, they are unlikely to be able to demonstrate the reasonable belief in their ownership of the relevant land, which must exist on the date of the application.
While allowing a grace period between the end of the period of reasonable belief and the making of the application for registration was an answer to such an absurd result, it was not provided for in the language of paragraph 5(4)(c) and it created uncertainty. How long is the grace period and what counts as prompt action? Parliament could not have intended the reasonable belief condition to have operated in this way.
However, the Court of Appeal decision in Zarb v Parry [2011] EWCA Civ 1306; [2012] 1 EGLR 1, which also concerned a boundary dispute, was authority that the words mean the 10-year period ending on the date of the application for registration. The judge made a material error of law in deciding that the decision did not bind him.
The tribunal found no grounds for overturning the FTT decision that from February 2018 the Ridleys no longer maintained a reasonable belief that they owned the land and that their application in December 2019 was not promptly made.
Louise Clark is a property law consultant and mediator
