What is adverse possession?
Adverse possession, often referred to as “squatter’s rights,” is a well-established legal concept in the property law of England and Wales. Historically, this doctrine allowed individuals to claim ownership of land openly occupied without permission or force over a period of 12 years. That still applies for unregistered land or where the 12-year period of adverse possession completed before 13 October 2003, but for any other situation, the ‘new’ rules below are likely to apply instead.
Changes introduced by the Land Registration Act 2002
The Land Registration Act 2002 (LRA) brought significant changes to the adverse possession rules. Although the LRA reduced the required period of adverse possession from 12 to 10 years for registered land, it also introduced more stringent conditions and procedures for making such applications. One common misconception among clients is that merely occupying land for 10 or 12 years is sufficient to establish a claim. However, under the LRA, if the rightful owner of the land (the “paper owner”) opposes the application, the applicant must meet specific conditions set out in the LRA to succeed.
Key condition: mistaken belief as to boundary
There are three such conditions to fit an application into. The most commonly used of those is the “mistaken belief as to boundary.” This condition, outlined in paragraph 5 of Schedule 6 of the LRA is defined as follows:
“For at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him.”
Brown v Ridley and Another [2024] UKUT 14(LC)
The recent case of Brown v Ridley and Another provides valuable insights into the application of this condition. Here are the details:
Background
- The Ridleys and Mr Brown owned adjoining parcels of registered land, each purchased in the early 2000s.
- In 2019, Mr Brown discovered that the Ridleys had built partially on his land.
- After corresponding on the issue, the Ridleys applied for adverse possession.
- Mr Brown opposed the application, arguing that the Ridleys were aware they were not the registered proprietors of the land before making the application.
Legal dispute
The primary legal issue was whether the 10-year period of adverse possession must end on the application date, or if any 10-year period within the time of the adverse possession would suffice. The judge at the first hearing ruled in favour of the Ridleys, deciding that the latter interpretation was correct. However, Mr Brown successfully appealed to the Upper Tribunal, citing the Court of Appeal decision in Zarb v Parry [2011] EWCA Civ 1306 as a binding authority.
This decision mandates that the 10-year period must end on the application date.
Upper Tribunal’s decision
While the Upper Tribunal acknowledged the binding nature of Zarb v Parry, it expressed doubts about the Court of Appeal’s interpretation. This is because a person in adverse possession of land will only make an application for adverse possession once they realise that they are not the paper owner of the land in question. This interpretation of the legislation results in the absurd requirement that a person would need to make an application on the same day that they discover they are not the registered proprietor.
Conclusion and next steps
Given the controversial outcome, the respondents have been granted permission to appeal directly to the Supreme Court for a definitive interpretation of “promptly.” Whether the Supreme Court will uphold the requirement for immediate application or adopt a more flexible approach remains to be seen. The authors share the view expressed by the Upper Tribunal and believe that the Supreme Court will confirm that a flexible interpretation should be adopted. Nonetheless, anyone who discovers they may have been occupying land without being the registered owner should act swiftly to apply for adverse possession, as any delay could be detrimental to an application.
How TWM can help you
Navigating the complexities of adverse possession applications can be challenging. TWM’s specialist property dispute lawyers have extensive experience in dealing with adverse possession applications and can assist you in making a robust application. To discuss your matter and find out more about how we can help you protect your interests, please contact our Dispute Resolution team.
