A Case of Bad Timing? Adverse Possession and the Land Registration Act 2002

Adam Hymes, Partner

In English Law, adverse possession (sometimes referred to as “squatter’s rights”) falls under two different regimes.  On one hand, if the land which is being claimed by adverse possession has unregistered title, there is a regime which, essentially, requires 12 years of occupation plus a number of other criteria to be met.  On the other hand, where registered land is being claimed, a completely different regime applies and a period of ten years is relevant (as opposed to 12).  The latter process was established by the Land Registration Act 2002 (“LRA”) whereas the former process has existed for very many years.

At a glance, it may appear that by reducing the relevant period to ten years, the LRA made it easier to claim adverse title.  However, due to the other criteria which must also apply, this is not so.  As the case below confirms, the LRA included “a reform to restrict the scope for acquiring land by adverse possession, but not remove it altogether (the pre-LRA regime gave significantly less protection to registered owners)”

The case of Brown v Ridley was heard by the Supreme Court.  Mr Brown (the respondent) is the registered owner of land in County Durham, which he purchased in September 2002 (the “Brown land”). Mr and Mrs Ridley (the appellants) are the registered owners of a neighbouring plot of land, which they purchased in July 2004 (“Valley View”).

A previous owner of Valley View had put up a fence and planted a hedge along what he understood to be the boundary between the Brown land and Valley View, but which (as the parties now agree) actually enclosed part of the Brown land as registered (this strip of land being the “disputed land”).

The Ridleys used the disputed land first as part of their garden and later as part of the site for the erection of a new house (into which they eventually moved). The fence and hedge were removed in preparation for construction work.

In December 2019 after an initial Party Wall Act dispute, the Ridleys applied to the Land Registry to be registered as the owners of the disputed land on the grounds that they had been in adverse possession of it for the required period of time per the LRA. Mr Brown objected.

Following a previous appeal (which found in Mr Brown’s favour) the Ridleys brought the case to the Supreme Court.  The relevant question arose due to wording in the LRA about adverse possession – namely, that to succeed, a “trespasser” will have to prove several matters in their favour:

“(a) the land to which the application relates is adjacent to land belonging to the applicant,

(b) the exact line of the boundary between the two has not been determined under rules under section 60,

(c) 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, and

(d) the estate to which the application relates was registered more than one year prior to the date of the application.”

The underlined section was relevant here.  The LRA clearly referred to “ten years”, but did that mean ten years prior to the date of the application, or could be any ten years within the period of adverse possession? This was highly important in Brown v Ridley since it was accepted that the Ridleys did not have such “reasonable belief” at the date of their application to Court or indeed for some time beforehand.

In the end, the Supreme Court unanimously found in favour of the Ridleys. Properly construed, the words cited above had to mean that any ten-year period of reasonable belief was sufficient.

The Court had to work out the objective intention of Parliament as manifested by its words, in the context of the underlying purpose of the legislation. As stated above, the LRA was intended to restrict the ability to claim land by adverse possession, but not to block it altogether.  There was no need to impose an unduly narrow reading on the underlined words regarding the ten-year period.

Furthermore, Mr Brown’s preferred interpretation, that the ten years needed to be the ten years ending on the date of the application, would require the adverse possessor to make their application immediately upon the ending of their reasonable belief. That seemed unrealistic and unattractive.

Likewise, Mr Brown’s argument of “de minimis” (that the law is not concerned with trivialities) such that an applicant could in fact wait a month or two after the ending of their reasonable belief before filing their application, failed, since there was no basis for this in the language of the statute.

In short, not only did the words of the provision themselves favour the Ridleys, but Mr Brown’s construction would have had the drastic consequence of making the process envisaged by the LRA impossible to properly pursue.

Finally, an argument from Mr Brown that human rights considerations made claiming property under this LRA regime unlawful and not compliant with the ECHR, also failed, since the ECHR had already confirmed the harsher pre-LRA unregistered process to be compliant in the case of JA Pye (Oxford) Ltd (2008).

In conclusion, whether you are a potential claimant or a possible defendant regarding a case of adverse possession, you should take early advice to ensure that your position is properly understood.