In Part 2 of this blog post Rod Edmunds, Module Convenor for Property law expresses the details of the case and its implications.
Dowse: What happened?
Mr and Mrs Dowse (D) owned a semi-detached house at 135 Staveley Road (Nos. 135). The Council owned the registered title to an irregular shaped, two-acre piece of land situated beyond D’s back garden. In 2001 D made their first adverse possession claim (under the LRA 1925) to part of the land. It failed because D’s grazing use, dating back to the 1970s, did not meet the common law requirements of adverse possession. D reacted by intensifying their use of the disputed land by parking a caravan there and cutting hay before reapplying to the Land Registry in 2017 for registration of their title. Having been notified of D’s application under the LRA 2002, the Council served a counter-notice. D then claimed their application should succeed because they met all four elements of the ‘boundary exception’ in para 5(4) because:
(a) the land in question was adjacent to their own land;
(b) the exact boundary line between the two had not been determined (under section 60 of the LRA 2002);
(c) they had reasonably believed that the land had belonged to them for at least 10 years prior to the date of the application; and
(d) the land had been registered more than one year prior to the date of the application.
There was no dispute over elements (b) and (d) D’s. D’s principal contention in the appeal proceedings before the Upper Tribunal was that the exception was not confined to applications about the incorrect positioning of a physical boundary, so that all that they needed to show to meet the adjacency requirement in (a) is that their garden at Nos. 135 shared a boundary with the Council’s land, which it did.
Dowse: What did the Upper Tribunal decide, and why?
Fancourt J rejected D’s literal interpretation of para 5(4), preferring to view its four elements holistically. The Tribunal found its construction to be compatible with the objective identified for para 5(4) by the Law Commission and HM Land Registry’s joint report and draft bill that preceded its enactment (see ‘Land Registration for the 21st Century: A Conveyancing Revolution’ (2001) (Law Com No 271). This showed the exception to be concerned with the position of the boundary, and applicable only to land in the area of the general boundary between an applicant’s land and that of the registered proprietor. More specifically this meant the whole (or possibly substantially the whole) of the disputed land would have to be capable of being described as ‘adjacent to’ the applicant’s land. D’s claim therefore failed because, by looking at local maps, only a very small part of the Council’s land they were claiming in their application was within the area of the general boundary with Nos.135. On that basis D could not succeed even if they could prove adverse possession and, as required by, para 5(4)(c), that they had a reasonable belief that the disputed land belonged to them for the ten-year period between 2007 to 2017 – matters which the Upper Tribunal did not find it needed to determine.
Dowse: Implications and Assessment
Dowse is a useful reminder of how the conditions in para 5(4) are pivotal in determining when the registered owner will lose out to the squatter. At first glance it suggests that the underlying purpose of the exception is relatively narrow. It is more about settling boundary discrepancies where the Land Registry plans are inconclusive and less about providing a broader mechanism for resolving any land dispute between neighbours. It is understandable then that Fancourt J describes the issue as involving ‘a matter of some general importance’ ([2020] UKUT 202, para [9]). More specifically the way the Upper Tribunal addresses the first of para 5(4)’s four conditions (‘adjacency’) curbs the reach and availability of the boundary exception, by only allowing a successful claim to a large expanse of registered land if all, or substantially all, of that land is adjacent to that belonging to the applicant/squatter. But, then again, in assessing the significance of the decision we should perhaps keep in mind the peculiar geography of the application land in relation to the D’s garden at Nos. 135. So, does the reasoning definitively rule out claims to a sizable area of a neighbour’s land that is entirely adjacent to the applicant’s land? And another question that may prove a fertile source of future litigation is what exactly counts as ‘substantially all’ for the purposes of being adjacent?
All that aside Dowse interprets the boundary exception so as to favour the interests of the registered owner over those of the squatter. As such the outcome sits well with the 2002 Act’s policy of confining and controlling the potential for adverse possessors of land to claim its registered title. This in turn ensures that prospective purchasers are able to rely on what the register says about who owns the land. Yet it should be remembered how earlier cases on the boundary exception have been interpreted more advantageously for squatters. This can be seen in decisions about para 5(4)(c)’s requirements of reasonable belief that the land belonged to the squatter, and the timing and duration of that belief (see IAM Group v Chowdery [2012] EWCA Civ 505; and Zarb v Parry [2011] EWCA Civ 1306). Of course the reasoning in those decisions, and so, too, that in Dowse, is not immune from future judicial changes in direction and refinement. But they indicate a need for the LRA 2002 to balance the protection it gives registered owners with the value of recognising legitimate claims of adverse possession. To do otherwise may only increase the number of squatters, including those similarly placed to Mr and Mrs Dowse, who decide to continue to occupy the land outside the system rather than risk making a failed application and being removed from the land (on which see the excellent article: Cobb, N and Fox, L ‘Living outside the system?’ The (im)morality of urban squatting after the Land Registration Act 2002’ (2007) 27 Legal Studies 236).
Click here to read Part 1 of this blog post.