What is Adverse Possession

In simple terms, adverse possession is the process in which you can acquire legal ownership of land, following a sufficient period of possession in an appropriate manner, without permission from the paper title owner.

The law on adverse possession for registered land is now governed by Schedule 6 of the Land Registration Act 2002 Act (“LRA 2002”). This new regime in some ways has made it easier for the original owner of the land to prevent an application for adverse possession from being successful.

The Law on Adverse Possession

On the face of it, the LRA 2002 helped applicants by reducing the required period of possession from 12 to 10 years. However, under Section 5(1) the applicants are now under the constraint of having to establish one of three grounds to overcome an objection to the application made by the registered owner. This causes the applicant to have the burden of showing factual possession, alongside sufficient intent to possess.

This blog focusses on the difficulties of when an application is opposed and the relevant sections of the law which relate to intention to possess, as outlined below.

The three grounds for possession are summarised below:

1. based on unconscionability arising from an equity by estoppel (Section 5(2)).
2. is "for some other reason" (Section 5(3)).
3. (Section 5(4)).

• 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 10 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.

Section 5(4)(c) is especially problematic for applicants due to the varied interpretation of what is the appropriate timing to make an application. A significantly relevant new case discussing the matter is Brown v Ridley [2024] which is analysed below.

The Case Law on Timing Under Section 5(4)(C)

Previous Case Law - Zarb v Parry [2011]

• In this case, there was a dispute over a strip of land, which the applicants were building a house on. As such, they applied to become legal title owners of the land in question. The original owners objected to their application and the case went to the Court of Appeal (COA) on the third ground of justification.
• The COA debated whether the 10-year period in Section 5(4)(c) should be interpreted as either:
• a) A reasonable belief held for any ten years in the period of adverse possession up to the date of the application; or
• b) A reasonable belief held in the ten years immediately prior to the application.
• In the COA, Judge Arden found that unreasonable belief of the adverse possession in the last ten years prior to the application, is a potentially disqualifying factor. Moreover, that even if the belief started out as reasonable, it could become unreasonable because of circumstances.
• Furthermore, Judge Arden stated that the moral is that as soon as the applicant learns of facts which might make his belief in the ownership unreasonable, he should take steps to secure registration as the legal owner.
• OUTCOME – Judge Arden concluded that reasonable belief had to be held immediately before the application, not at any time.
• Outside of his reasoning for his conclusion, Judge Arden commented that an application under Section 5(4) should be made “promptly” once the applicant discovers they are on their neighbour’s land.

Brown v Ridley [2004] – Have the Courts Moved Away from Zarb V Parry?

At First Instance – Shifting Interpretation

• In this case, Judge Bastin believed that reasonable belief as to ownership started in 2004, but that the belief could not have been maintained after February 2018. Although the application was not made until December 2019.
• Considering Zarb v Parry, Judge Bastin thought that the comments dealing with Section 5(4)(C) did not form part of Judge Arden’s reasoning and that the language of Section 5(4)(c) was ambiguous. Furthermore, Judge Bastin was of the view that parliament could not have intended for an applicant to make the application on the day his belief became unreasonable.
• OUTCOME – Judge Bastin held that the applicants could successfully rely on the ground of justification and Section 5(4)(c) should be interpreted to mean any 10 year period.
• Finally, Judge Bastin commented that his interpretation would reduce uncertainty as to whether the application was done promptly and provides the opportunity for parties to explore alternative forms of resolution prior to litigation.

In The Upper Tribunal – Overturning Judge Bastin’s Ruling

• Upon appeal, Judge Johnson evaluated the following two grounds of appeal:

1. Was there an error in law – had Judge Bastin failed to follow Zarb v Parry as binding authority which had concluded that the 10-years ends on the date of the application?
2. Had Section 5(4)(C) been wrongly interpreted in not requiring the applicant’s belief to go up to the date of the application?

• In making his decision, Judge Johnson considered the following points:
• a) Whether the date of the ‘reasonable belief condition’ formed part of the reasoning behind the decision in Zarb v Parry, consequentially making it binding authority. It was held that whilst the date was not the subject of the argument, it formed a necessary step in reaching the conclusion as to whether the ground could be relief upon.
• b) Despite finding Zarb v Parry binding, Judge Johnson agreed with Judge Bastin with regards to the wording of Section 5(4)(C) being ambiguous. Furthermore, Judge Johnson was of the view that if Zarb v Parry’s interpretation was correct, then inevitably an applicant would not be able to demonstrate the required belief. Therefore, the result would be absurd, and it was impossible for Judge Johnson to accept that it was what parliament intended, as he found that the Zarb v Parry’s interpretation was inconsistent with the way that the LRA intended to support applicants. Finally, Judge Johnson disagreed with Judge Arden’s suggestion that an application should be made promptly, as he thought it undermined the need to avoid boundary disputes in the first place.
• OUTCOME – due to not following binding authority, Judge Bastin’s previous conclusion was overruled, and the appeal was allowed. Thus, the original application was dismissed.
• Whilst not agreeing with the interpretation in Zarb v Parry, it was necessary to follow it as binding authority. Therefore, once again, reasonable belief had to be held immediately before the application, not at any time.

Appeal to the Supreme Court – The Future for Timings of Adverse Possession Application

• On the 23rd of May 2024, the Supreme Court granted permission to appeal this case. The hearing is likely to be in 2025 and means that the door may not be fully shut as to the correct interpretation of Section 5(4)(c). 

The Consequences of Brown v Ridley – Where Do Applicants Stand Now?

Currently

At present, Zarb v Parry’s interpretation remains good law. Therefore, an applicant must have 10 years of reasonable belief of possession immediately prior to the date of application.

This might be relevant for those who have moved fences over time without either party being conscious to the movement. Once someone realises the boundary is incorrect, and on paper, the land is not theirs, it would be wise for applicants to follow Judge Arden’s suggestion of making an application to the Land Registry promptly.

Unfortunately, this inevitably will result in disputes being hurried into formal litigation prematurely without letting parties have time to negotiate and settle disagreements amicably at a cheaper cost.

In the Future?

If the dispute in Brown v Ridley is not settled beforehand, and the case ends up in Supreme Court there is a chance the Court could revise the test for adverse possession. This seems likely given the Judge Johnson’s comments which highlights his opinion that although Zarb v Parry is binding, he still considers it to be wrong.

If the case settles, we may have to wait a while longer until another challenge is brought to the Supreme Court on this matter. For this to happen, an applicant would need significant motivation to spend those large funds.