Adverse possession and registered land

Dowse and Another v City of Bradford Metropolitan District Council [2020] UKUT 202 (LC)

While the legal process of applying for adverse possession in relation to unregistered land remains unchanged, the Land Registration Act 2002 (‘2002 Act’) changed the law of adverse possession in relation to registered land altogether, making it much more difficult to obtain registered land via adverse possession.

Under the 2002 Act, if an applicant has been in adverse possession of registered land for a period longer than 10 years, they can apply to HM Land Registry to be registered as the new owner in place of the registered owner, but crucially, the current registered proprietor can generally resist the application as long as the correct process set out in the 2002 Act is followed.

If the registered proprietor requires the application to be dealt with under paragraph 5 of Schedule 6 of the 2002 Act, the application will be summarily rejected, unless the applicant is able to rely, and has stated as such in the application, on one of the three fairly limited exceptions, one of which is that the applicant has been in adverse possession of land adjacent to their own for at least 10 years under the mistaken but reasonable belief that they are the owner of it.

There are four elements to this ground and all four must apply in order for the squatter to be successful:

1. The land they are claiming must be adjacent to their own land;
2. The exact boundary line between the two has not been determined (under S60 of the 2002 Act);
3. The applicant had reasonably believed that the land had belonged to them for at least 10 years prior to the date of the application; and
4. The land had been registered more than one year prior to the date of the application.

Background

Mr and Mrs Dowse relied upon the above-mentioned exception to claim approximately two acres of land (‘the Land’) which bordered the garden of their residential property and belonged to the Council. They claimed to have used the Land in question since 1974 for the purposes of grazing and, more recently, for storage of a caravan/trailer and to grow hay. They made access to the land more difficult. The Land (or at least part of it) was adjacent to the garden of their house.

They had also previously made an application for adverse possession, which had been rejected by the Land Registry in 2001.

Mr & Mrs Dowse claimed that they could avail themselves to the third exception and on a literal interpretation all four conditions were in fact met. They claimed that:

(a) the Land in question was adjacent to their own land;
(b) the exact boundary line between the two had not been determined;
(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.

However, the Upper Tribunal rejected the Mr and Mrs Dowse’s attempt to rely on this exception to claim title to the Land and submitted that the ground could only apply to land in the general area of the boundary.

The Judge stated, having examined maps of the area concerned, that:

In my judgment, therefore, the application land in this appeal is not “adjacent to” land belonging to the Appellants, within the meaning of para 5(4)(a) of Schedule 6. Only a very small part of it was within the area of the general boundary with No.135.  The land to which the application relates is not adjacent to land belonging to the Appellants, within the meaning of para 5(4). On that basis, the Appellants cannot succeed even if they prove adverse possession and a reasonable belief that the application land belonged to them for the period from 2007 to 2017.   

The Land in this case could not be said to be adjacent to the property belonging to Mr and Mrs Dowse as only a small fraction of it was. The whole of the land, or a substantial part, would need to be adjacent to the Dowse’s property in order for condition (a) to apply.

What are the practical implications of this case?

This case serves as further reminder of the limited circumstances in which a claim for adverse possession of registered land will be successful when seeking to rely on the limited exceptions in Schedule 6 of the 2002 Act. Those advising applicants seeking to rely on the 2002 Act should consider from the outset whether any of the exceptions apply and to objectively consider the strength of the claim and the likelihood of success.

If the adverse possession of registered land has already started by October 1991 (namely 12 years before the 2002 Act came into force in October 2003), then this method is much easier, because an applicant can take advantage of the transitional provisions in the 2002 Act. In summary; just the 12 years adverse possession is needed before October 2003, and the additional requirements, and compliance with the limited exceptions, do not apply.