Adverse possession claim – Procedure – County court claim against tenant for anti-social behaviour order – Claim alleging trespass – Tenant claiming rights to land by adverse possession – County court refusing to adjourn proceedings pending outcome of application to Land Registry for registration of possessory title to that land – Whether such application precluded by para 1(3) of Schedule 6 to Land Registration Act 2002 – Appeal allowed
The claimant let a ground-floor flat to the defendant on an assured tenancy from March 2000. The defendant’s demise included part of the rear garden of the premises and a right of way over an adjacent passageway; the latter right was enjoyed in common with the claimant and the owners and occupiers of the adjoining properties. In June 2011, the claimant applied for an anti-social behaviour injunction against the defendant, under the Housing Act 1996, on the ground that he had impeded access over the passageway by installing a lock on the gate and erecting greenhouses and that the greenhouses and a gazebo trespassed on the garden of the first-floor flat and the passageway.
In his defence, the defendant claimed to have acquired rights by adverse possession. However, no such title could be acquired without making an application to the Land Registry. A few weeks before the trial, the defendant sought an adjournment on the ground that he had just made such an application to register a possessory title to the relevant pieces of land, based on more than 10 years’ adverse possession.
The county court judge held that para 1(3) of Schedule 6 to the Land Registration Act 2002 precluded the defendant from making his Land Registry application since he was a “defendant in proceedings which involve asserting a right to possession of the land” within the meaning of that provision. However, the judge adjourned the trial for other reasons and gave further directions relating to the court’s determination of the issue of possession.
The defendant appealed against the judge’s order. He contended that: (i) the court had no direct role in determining the issue of adverse possession since that matter could be resolved only in accordance with the statutory procedure laid down in the 2002 Act; and (ii) his right to apply to the Land Registry to have his interest registered should not be inhibited by the court proceedings and was not precluded by para 1(3), which applied only to prevent a tenant from making such an application in response to possession proceedings.
Held: The appeal was allowed.
(1) The county court judge had misinterpreted the law in concluding that it was for the county court to determine whether the defendant had acquired a title by way of adverse possession. A person could only acquire an effective title by adverse possession if certain procedural requirements are fulfilled; these included the making of an application to the Land Registry. Unless and until that happened, no such title could be acquired and there was nothing for the court to adjudicate on. The position under the 2002 Act was different in that regard from the previous situation, when adverse possession claims had been governed by sections 15 and 17 of the Limitation Act 1980 and the relevant period of adverse possession could in itself create a right, so that whether it had done so might well have been a matter for the court’s adjudication. The only circumstances in which the court would now be called on to adjudicate on whether someone had been in adverse possession for the necessary period was in the context of a defence, under section 98 of the 2002 Act, to an action for possession of land. That had no relevance to the instant case, which was not a claim for possession. The means of acquiring a title by adverse possession has been firmly placed in the hands of the Land Registry. It was not for the court to arrogate to itself the functions now to be discharged, in the first instance, by the Land Registry. Section 21(2) of the County Courts Act 1984, giving the court jurisdiction to hear and determine any action in which the title to a hereditament came into question, did not affect that position since that general provision could not take precedence over the specific provisions of the 2002 Act and, for the reasons stated above, there was no question of title to be determined in the instant proceedings.
(2) The judge had also misinterpreted para 1(3) by taking it to refer to proceedings in which the defendant was asserting a right to possession. In fact, it was an assertion by the claimant that mattered. The judge had erred in concluding that the defendant was not permitted to make an application to the Land Registry. The trial should have been adjourned to await the outcome of that application.
Andy Creer (instructed by Batchelors) appeared for the claimant; Stuart Armstrong (instructed by Chennells, of Westcliff-on-Sea) appeared for the defendant.
Sally Dobson, barrister
