But I thought this was mine - adverse possession

Richard Pulford, Senior Associate Solicitor in the Dispute Resolution team, looks at the criteria and timeframe necessary for reasonable belief of ownership in an adverse possession claim following the decision in Brown v Ridley.

Adverse Possession

Adverse possession can be an incredibly complicated process for the party claiming a right to the land and particularly since 2002. The implementation of the Land Registration Act 2002 essentially got rid of the concept of ‘squatter’s rights’. Now, in order to claim ownership of land, it is no longer enough just to show a period of unencumbered use as had been the case, you now need to be able to show that you reasonably believed the land to be yours for a period of at least 10 years. Reasonable belief is always a difficult prospect because it relies on not just what you thought, but on whether it was reasonable for you to have thought that. With information from land registry so freely available, it can be argued that it is difficult to meet this burden.

The issue being considered in the case of Brown v Ridley was when is it necessary to have had this reasonable belief. Is it sufficient to just have had 10 years of continuous belief, or did this need to be 10 years up to the point where an application for adverse possession was made.

Brown v Ridley

This case involved the erection of a fence and large hedge by a previous owner of the Ridley’s land where they considered the boundary to be. It was agreed by all parties that the action of putting up the fence had meant that part of the Brown’s land had now become enclosed and so cannot have been correct, but at the time there was no objection raised. The issue first started when planning permission was granted to the Ridleys in early 2018 for construction work and the hedge and fence were removed for the required works. After further back and forth where objections were made and some works were carried out, the Ridleys made their application to Land Registry to be registered as owners of the disputed land. 

The case made its way up to the Supreme court with the main issue in discussion being whether the 10 years reasonable belief could be any 10 years or did it have to be the 10 years prior to the application being made. This was significant because the First Tier Tribunal had found that the Ridleys only reasonably believed they owned the disputed land until around February 2018 when it was acknowledged that the fence and hedge had been in the wrong place. This was approximately 21 months before they made their application.

The Supreme Court unanimously found that the 10-year period could be any time and did not specifically have to end on the making of the application.

The court looked at the wording in Schedule 6 Paragraph 5 of the Land Registration Act 2002 particularly at the criteria that:

‘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.’

The court took the view that given the additional protection elsewhere within Schedule 6 of the Act, there was no need to apply an over restrictive interpretation of this language and so any 10 year period of time of reasonable belief was sufficient. Equally, if the alternative interpretation was preferred, this would lead to a situation where the party claiming the adverse right would need to make their application immediately upon the ending of their reasonable belief which would potentially encourage disputes between neighbours and leave no time for negotiation or taking proper advice.

Implications

This decision overrules the widely followed principle of Zarb v Parry (2011) i.e. that the 10-year period of reasonable belief has to end on the date of application.

The decision seems to be based on what was the most suitable way of administering these sorts of disputes. Clearly making an application on the day that your reasonable belief ended, was not practical. You would not be thinking of this in the moment. The court was also not satisfied that the reasonable ‘period of grace’ after the belief ended to make the application argument would do anything but create dispute. What was a reasonable period of time in this case? Had too long been left? What was the cause of the delay?

As such, the court veered on the side of a more certain interpretation. Just 10 years was sufficient. This of course does not remove the other factors required when making a claim for adverse possession, but it does make one part of it more clear.  

This case, amongst other things, highlights difficulties of statutory interpretation and there is no such thing as a ‘slam dunk’ case. The Browns and their advisers may well have read the relevant sections of the Act and quite reasonably interpreted the intention of the legislation one way with fairly strong precedent to rely on, only to find that the supreme court disagreed. This ‘litigation risk’ is one of the reasons that alternative dispute resolution should always be at least considered regardless of the basis of your claim.

If you find yourself in a dispute over land and require assistance and advice, please contact us and we will help where we can.