In Nazir and another v Begum [2025] EWCA Civ 587; [2025] EGCS 78, the Court of Appeal has confirmed the reference in Schedule 6(12) of the Land Registration Act 2002 to a trust which prevents time accruing for the purposes of adverse possession means a conventional trust, not the statutory trust which arises under section 33 of the Administration of Estates Act 1925.
Key points
- A conventional trust requires separation of legal and beneficial ownership
- A statutory trust is not a trust in the conventional sense
- Schedule 6(12) of the 2002 Act refers to a conventional trust
Adverse possession under the 2002 Act
The adverse possession provisions contained in Schedule 6 of the 2002 Act were enacted to reflect the principles of title registration and restrict claims to those cases where it is essential to ensure the marketability of land or to prevent unfairness. The limitation period for recovery of land under section 15 of the Limitation Act 1980 was removed by section 96.
Anyone who has been in adverse possession of registered land for at least 10 years ending on the date of the application may apply to be registered as proprietor of the land (Schedule 6, paragraph 1).
An applicant must satisfy one of three conditions (Schedule 6, paragraph 5):
- (2)(a) it would be unconscionable for the registered proprietor to seek to dispossess the applicant and (b) the circumstances are such that the applicant ought to be registered;
- (3) for some other reason the applicant ought to be registered; or
- (4)(a) the land to which the application relates is adjacent to land belonging to the applicant;
- (b) the exact boundary between the two has not been determined under section 60;
- (c) for at least 10 years of the period of adverse possession ending on the date of the application the applicant reasonably believed the land belonged to them; and
- (d) the estate to which the application relates was registered more than one year prior to the date of the application.
- A person is in adverse possession if, but for section 96, the limitation period under section 15 of the 1980 Act would run in their favour. Periods of adverse possession by a predecessor in title also count (Schedule 6, paragraph 11).
There is a defence to an action for possession of land if, on the day preceding the application, a person was entitled to make an application under paragraph 1 and had they done so the condition in 5(4) would have been satisfied (section 98).
However, a person is not to be regarded as being in adverse possession of an estate at any time when the estate is subject to a trust unless the interest of each beneficiary in the estate is an interest in possession (Schedule 6, paragraph 12).
The statutory trust under the 1925 Act
Where a person dies intestate, their real and personal estate vests in the Public Trustee until the grant of administration. Once administration is granted, section 33 of the 1925 Act provides that the estate of an intestate person is held in trust by their personal representatives with the power to sell it. The personal representatives shall pay all funeral, testamentary and administration expenses, debts and other liabilities from ready money in the estate and any net money from disposing of any other part of the estate. Any residue shall be set aside to provide for pecuniary legacies.
The background
The claim concerned a strip of land running between 37 Lower Ashton Road and 1 Gurbax Court in Thornbury, Bradford. Lower Ashton including the disputed land was owned by the appellants’ father, who died intestate in March 2010.
Letters of administration were obtained by the appellants and, in April 2022, they acquired title to the property and disputed land. In August 2022 they executed a deed of trust stating they held the disputed land on trust for themselves as tenants in common in equal shares.
The respondent owned Gurbax Court and claimed title to the disputed land by at least 10 years’ adverse possession. Her defence to possession proceedings brought by the appellants – under section 98 of the 2002 Act – succeeded before the county court judge, who directed she be registered as proprietor of the disputed land.
The appeals
The appellants appealed, arguing for the first time that the land was subject to a trust under section 33 and relying on schedule 6(12) of the 2002 Act.
The High Court was satisfied that for such a trust to exist there must be identifiable property, a trustee and beneficiaries who can enforce the trustee’s duties. None of this exists in the administration of an estate. Personal representatives are not trustees in the conventional sense (Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 22nd edition).
The Court of Appeal agreed, dismissing the second appeal. The statutory trust is one which imposes trustee-like duties on a personal representative with which they must comply in carrying out the administration of the estate. The relationship between a personal representative, the assets in an estate while it remains unadministered and a residuary legatee’s interest under section 33 is not a trust in the conventional sense. It is akin to the trust arising pursuant to statute on the bankruptcy of an individual or the liquidation of a company.
The terms of the exception in Schedule 6(12) of the 2002 Act provide an important indicator that what is referred to is a conventional trust with a separation of legal and beneficial ownership between a trustee and one or more beneficiaries.
Louise Clark is a property law consultant