Adverse possession - clarity at last!

The background

Schedule 6 to the Land Registration Act 2002 sets out the statutory framework for the ’10 year-rule’ (the new regime).  In addition to the applicant needing to prove that they have been in adverse possession for at least ten years ending on the date of the application, they must be ready and able to satisfy one of the three conditions set out in paragraph 5 to schedule 6.

Paragraph 5(4) of Schedule 6 to the Land Registration Act 2002 is known as the third condition. It provides that:

(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.

It is the words in bold which have caused problems for advisors and their applicant clients since the comments made in the Court of Appeal’s decision in Zarb v Parry [2011] EWCA Civ 1306, [2012] 1 WLR 1240 (“Zarb”) and, more recently, the Upper Tribunal’s decision in this case (Brown v Ridley) of 2024 which considered itself bound by the comments made in Zarb.

Following Zarb, and when wishing to rely on the third condition, it was considered necessary to make an application for adverse possession to the Land Registry promptly once the applicant’s reasonable belief about ownership of the land could no longer be maintained or had been challenged.  It was feared that failure to do so could result in an unsuccessful application.  Nobody really knew what was meant by ‘promptly’.   It was also unclear whether the comments made in Zarb were obiter (and, therefore, only persuasive) or binding until 2024 when the Upper Tribunal decided they were binding.

In some cases, this led to applications being filed before parties (often residential neighbours) had been able to explore alternative dispute resolution.  In turn (and due to the obligation which the Land Registry is under to refer applications to the First-Tier Tribunal for determination where one party refuses to negotiate or negotiations fail after six months), parties could find themselves in the Tribunal much sooner than would otherwise be the case, thereby resulting in (potentially) unnecessary costs and lasting damage to their relationship as neighbours.

Prior to Zarb, it was considered that the applicant need only prove that it had held its reasonable belief for the purposes of paragraph 5(4)(c) for any 10-year period during its adverse possession of the land.  Life was simple!

The Supreme Court’s decision

On appeal from the Upper Tribunal, the issue to be decided by the Supreme Court was whether the 10 years of reasonable belief could relate to any period of 10 years during which the applicant was in adverse possession or had to be the 10 years prior to the date of the application to Land Registry.

Thankfully, the Supreme Court has held that the words “for at least 10 years of the period of adverse possession ending on the date of the application” mean any 10-year period, thereby disagreeing with the comments made in Zarb.

What is the practical impact of this decision?

The Supreme Court’s decision has removed the anxiety previously caused by the need for applicants and their advisors to rush making an application to Land Registry in fear of being judged to have not done so ‘promptly’.

Instead, applicants will have more time to take advice and explore alternative dispute resolution before deciding whether to apply to the Land Registry.  This approach is, of course, much more in line with the Court’s views on ADR (as indeed was noted by the Supreme Court).  It is also (in our view) a very sensible outcome.  Cases of adverse possession usually only arise in the context of boundary disputes, which are often very expensive and emotionally charged. Where possible, the parties are better off settling these disputes than litigating them.  This change in the law, therefore, provides some breathing space and reduces the risk of parties being thrown into litigation prematurely.

To find out more about adverse possession of registered land and how we can help you, please get in touch with one of our real estate dispute resolution solicitors today.