Squatters applying to be registered with title to registered land can be required to prove that they have been in adverse possession for 10 years and that they can satisfy one or more of three conditions laid down in schedule 6 of the Land Registration Act 2002. Paragraph 5(4)(c) applies to boundary disputes – and requires squatters to show that they have, for at least 10 years ending on the date of their application, reasonably believed that the land belonged to them.
Monk v Gillespie [Property Chamber First-tier Tribunal 22 June 2021] concerned a piece of land that wrapped around the applicants’ boundaries in an L-shape. The applicants had purchased part of a field adjoining their house in 1995. The seller’s surveyor had staked out the land before completion and the applicants had instructed a third party to erect a fence – after which they maintained and cultivated all the land on their side of the fence, as well as keeping livestock there and taking cuts of hay.
The applicants discovered a sizeable discrepancy in the title boundaries in August 2019, while contemplating a sale for the construction of approximately 36 new homes, and claimed to have acquired title to the disputed land, comprising more than half an acre, through adverse possession. The judge accepted that the seller’s surveyor had staked out the land incorrectly and that there were no physical features on the ground to show that the stakes were in the wrong place. The fencing had followed the line of the stakes and the applicants had excluded the world at large from all the land on their side of the fence and shown the requisite intention to possess it since 1995. Furthermore, the applicants had honestly believed that the disputed land belonged to them.
Was their belief reasonable? The First-tier Tribunal decided that it was. The applicants were not used to metric measurements, had no experience in land surveying and had reasonably relied on the boundaries marked out by the surveyor employed by the sellers. No one else had spotted the error and nothing had occurred that would have given them cause to question the boundary lines. And they were not experienced professionals, with all the documents in front of them and the benefit of hindsight.
Furthermore, if the dicta in Zarb v Parry [2011] EWCA Civ 1306; [2012] 1 EGLR 1 were correct, the applicants had applied to be registered with title to the land six weeks after being disabused of their belief that they owned it, which was “prompt” enough for the purposes of paragraph 5(4)(c). But did the applicants’ reasonable belief actually need to continue until they applied for registration? The judge suggested that such an interpretation would render paragraph 5(4)(c) virtually useless and noted the more generous six-month period allowed for applications where squatters are evicted from land: paragraph 1(2). It would be extremely difficult for squatters to apply for registration immediately, would result in poorly considered and prepared applications and would encourage boundary-related litigation, which the court is keen to discourage.
And, finally, the judge distinguished the ruling in Dowse v City of Bradford Metropolitan District Council [2020] UKUT 0202 (LC) that paragraph 5(4(c) is limited to land in the area of the general boundary between the respective parcels and is relatively narrow. The whole, or substantially the whole of the disputed land adjoined the applicants’ field and did not dwarf it, as was the case in Dowse.
Allyson Colby is a property law consultant
