A recent Supreme Court case has demonstrated that a claim for land through adverse possession need only have had a “reasonable belief” that the land belongs to them for any ten-year period before making the application to be successful.
With this ruling giving landowners more cause to be vigilant about the borders of their estate and knowing what land they own, Sara Shaikh, Solicitor in Thrings’ Property Litigation team, looks at what can be done to help.
Brown v Ridley
The case related to a dispute between Alistdair Brown and neighbours Richard and Sarah Ridley over land registered in the former’s name since September 2002.
Prior to the couple purchasing the adjacent plot, known as Valley View, in 2004, a previous owner had put up a fence and planted a hedge along what he understood the boundary between the Brown land and Valley view to be. 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).
Planning permission for the new house was granted in early 2018 with the fence and hedge removed later that year ahead of construction work. In October 2019, Mr Brown gave notice to the Ridleys that he considered the work to be in breach of the of the Party Wall etc. Act 1996.
The couple then applied to the Land Registry to be registered as owners of the disputed land on the grounds they had been in adverse possession of it for the requisite period of time outlined in the Land Registration Act 2002. Mr Brown objected to the application with the claim then being escalated through the courts – with the First-Tier Tribunal siding with the Ridleys, the Upper Tribunal with Mr Brown and the claim being escalated to be appealed before the Supreme Court.
The question that lay before the court was in deciding whether the 10 years of reasonable belief of ownership required for registration under paragraph 5(4) of Schedule 6 to the Land Registration Act 2002 (LRA) must be the 10 years immediately preceding the date of the application, or whether it could be any period of 10 years within the period of adverse possession.
Handing down a judgment that sided with the Ridleys, Lord Briggs concluded that the 10 years of reasonable belief could be held within any period of time for adverse possession to apply, overruling a stricter approach taken by the Court of Appeal in previous cases, particularly Zarb v Parry (2011).
The Supreme Court resolved that it was not appropriate to impose an unduly narrow meaning on the words used in the boundary condition, and in particular there seemed no purpose in requiring the belief of the applicant to continue right up to the moment of the application.
What can landowners do?
In Lord Briggs’ statement when delivering the judgment, he said that an application for registration of title to adjacent land along an undefined boundary “is not something which can be put together in an afternoon” and would require professional advice and evidence about the nature of the decade of possession of it as well as potentially about “the possession of predecessors”.
For landowners concerned about their land being adversely possessed, their first step should be to seek professional and legal advice, which will help them to understand and mitigate the potential risks.
Other things that landowners can do include:
- Regularly inspecting the property: Keep an eye on unused land and property boundaries to ensure no one is occupying or using the land without permission. Look out for signs of long-term occupation (fences, sheds, gardening etc).
- Take swift action if you notice trespassers: Politely ask anyone occupying the land without permission to leave or remove their encroachments. If they refuse, serve a formal notice requiring them to vacate.
- Give permission in writing: If you are allowing someone to use your land (for example a neighbour parking or gardening), give them written permission as it clearly demonstrates they are not using the land adversely.
- Be vigilant if disputes arise: If boundaries are disputed, have clear plans and surveys showing the boundaries and resolve the dispute formally, documenting everything.
Thrings’ Property Litigation lawyers are experienced in safeguarding your assets and reaching resolutions in disputes, often without recourse to court proceedings, and with an excellent track record when cases do go to court. To find out how they can help protect, get in touch.
