Adverse Possession and Reasonable Belief

This blog post was contributed by David Thomas, Teaching Fellow for Property law.

As we all know, the Land Registration Act 2002 changed the law of adverse possession, making it much harder for adverse possessors to gain a good title. You have to apply to register your ownership under paragraph 1 of Schedule 6 to the Land Registry, who in turn will notify the registered owner. If the registered owner objects, your title can only be registered if very limited circumstances apply. One of these is intended to provide an effective way of dealing with boundary disputes. Under paragraph 5(4) of Schedule 6, if four conditions are met, the adverse possessor’s title may be registered and displace that of the registered owner. The condition we are looking at in this blog is subparagraph (d):

for at least ten years of the period of adverse possession ending on the date of the application, the applicant … reasonably believed that the land to which the application relates belonged to him.

Paragraph 1 of the Schedule requires, for the making of an application under the Schedule, that the applicant “has been in adverse possession of the estate for the period of ten years ending on the date of the application.” That seems both reasonable and clear, and no doubt because of the similar wording it has been widely assumed that subparagraph (d) similarly required the reasonable belief to relate to the ten years “ending on the date of the application”.

The problem with that interpretation, however, is that it does not in fact allow the provision to operate at all. At some point, the adverse possessor will learn that the registered title does not match up with the situation on the ground. At that point (we may assume) their belief will stop being reasonable. An application to the Land Registry is likely to follow, but we can be sure that it will not follow on the same day, as that interpretation literally requires.

The first Court of Appeal case to deal with paragraph 5(4), Zarb v Parry [2011] EWCA Civ 1306, did not turn on this point, but the court did make the assumption that the period of reasonable belief had to be the ten years ending on the date of the application; Arden LJ referred to the need to make the application promptly.

In the recent case of Brown v Ridley [2024] UKUT 14 (LC), the Upper Tribunal had to deal with the issue directly. The very thoughtful judgment spells out that there is a second interpretation of the subparagraph; that the period of reasonable belief needed to be of at least ten years within the period of adverse possession, not necessarily up to the date of the application. This interpretation restores the effectiveness of the provision.

However, although the Upper Tribunal strongly preferred this interpretation, it also held that Zarb was binding authority for the first interpretation, and so ruled against the applicant. The applicant applied for leave to appeal, and since the Court of Appeal would also be bound by Zarb was granted leave to make a leapfrog appeal for permission to the Supreme Court. The Supreme Court has granted that application (on 23 May 2024).

So, assuming that the matter is not settled (which would undoubtedly be best for the parties), we may be fortunate enough to see the first judgment by our highest court on the subject of adverse possession since J A Pye (Oxford) Ltd v Graham [2002] UKHL 30. It may be sad, but I find this very exciting!

References

Brown v Ridley [2024] UKUT 14 (LC)

Chris, R. ‘Precedent before Principle: Adverse Possession, “Reasonable Belief” and Statutory Interpretation of the Land Registration Act 2002 Sch. 6 para. 5 (4).’ The Conveyancer and Property Lawyer 88, no. 2 (2024).

J A Pye (Oxford) Ltd v Graham [2002] UKHL 30

Zarb v Parry [2011] EWCA Civ 1306