The law of adverse possession allows people who do not have legal title to land or property to claim ownership of the land when they have occupied it without consent. On 15 November, judgment was handed down in the case of Zarb v Parry [2011], the first case to reach the Court of Appeal in what is likely to prove a difficult area in the future for neighbours, conveyancers and property litigation lawyers.
Background to the law on adverse possession
Historically, adverse possession was obtained by the indirect effect of the Limitation Act 1980. The right to acquire adverse possession under the Act was negative in nature and, provided that 12 years’ possession could be established, the paper title owner could not reclaim their land.
However, when the Land Registration Act 2002 (LRA) was passed, this introduced new rules. Under the LRA, there is no limitation period for recovery of a registered estate in land. However, after ten years of adverse possession, the adverse possessor can apply to the Land Registry to be registered as the legal owner. If proceedings for possession have already begun, the adverse possessor cannot apply to be the registered owner. However, section 98 of the act states: “A person has a defence to an action for possession of land if – (a) on the day immediately preceding that on which the action was brought he was entitled to make an application under paragraph 1 of Schedule 6 to be registered as the proprietor of an estate in the land, and (b) had he made such an application on that day, the condition in paragraph 5(4) of that Schedule would have been satisfied.”
It was these conditions that were given detailed consideration by the Court of Appeal in Zarb.
The facts of the case
Mr Little owned the land comprising both the claimants’ and defendants’ properties. He originally separated the land in 1985, retaining the property called Daisymore and selling Fleet Cottage. In 1992, Mr Little sold an additional parcel of land at Daisymore to the owners of Fleet Cottage, to enlarge their garden. This land was at the centre of the dispute between the parties.
The claimants purchased Daisymore in 2000 and, shortly after, alleged that a hedge, which the then owners of Fleet Cottage took to be the boundary between the properties, did not accurately follow the boundary as recorded in the 1992 conveyance.
The defendants, who purchased Fleet Cottage in 2002, believed that the dispute had been resolved. This was not the case however and, in 2007, the claimants attempted to take possession of the disputed parcel of land forcibly. They told the defendants they intended to take the land back, unrolled a tape (presumably with the intention of marking what they asserted to be the correct boundary), cut down a sapling, removed a short length of post and wire fence, and started installing two new fence posts before being interrupted by the defendants. When confronted and threatened with a call to the police, they left the disputed land.
In 2009, the claimants issued court proceedings, primarily to obtain a declaration stating that the boundary did indeed match the 1992 conveyance. The defendants suggested that the legal boundary followed the physical features of the land and also relied upon the defence in Section 98 of the LRA, above.
Judge Daniel Pearce-Higgins accepted the claimants’ argument that they were the paper title owners of the land. However, he also held that the defendants were able to establish adverse possession. The claimants appealed this decision, arguing that:
- The previous occupants of Fleet Cottage’s possession of the land was with the implied consent of Mr Little, so possession could not be adverse;
- The defendants’ adverse possession had been interrupted by the claimants in 2007, and so the time-period started running again from that date;
- The defendants did not satisfy the requirement in Schedule 6, paragraph 5(4)(c) of the LRA, which stipulates that, throughout the previous period of ten years, they must have reasonably believed they owned the land.
The claimants only needed one of the grounds for appeal to be successful but the Court of Appeal dismissed them all unanimously.
Reasons for the Court of Appeal’s decision
In relation to the first point, the Court of Appeal held that the crucial question was whether the acts and words of Mr Little were “probative of and not merely consistent with the giving of permission.” Lady Justice Arden found that erecting a stock-proof fence did not indicate consent to possess the parcel of land.
The second point was the issue that most troubled the court. It found that the claimants had not done enough to cause the adverse possession to cease and Lady Justice Arden emphasised the fact that the claimants withdrew part of the way through their attempt to take possession. Furthermore, the Master of the Rolls said that “while the Zarbs embarked on an enterprise which, if it had been completed, would have involved their retaking possession of the strip, they were interrupted by the Parrys before the enterprise had been completed, and, in the ensuing confrontation, they abandoned the enterprise.”
The claimants were equally unsuccessful in their third ground of appeal and, based on the available evidence, it was held that the defendants’ belief of ownership was indeed reasonable.
It is clear from the judgment that the claimants may well have successfully interrupted the possession, had the defendants been away while they were installing the new fence.
Practical implications of the ruling
It is clear from this judgment and the wording of the LRA that both paper title owners and anyone claiming adverse possession will need to tread very carefully when deciding what actions to take in similar situations. Lady Justice Arden provides useful guidance for any prospective purchasers of land that may be under dispute. She suggests that all parties ensure that boundaries are agreed, recorded by deed and registered with the Land Registry. If agreement cannot be reached, then the purchaser enters the transaction with their eyes open to the possibility of expensive litigation.
It is noteworthy that the requirement for “reasonable belief” of ownership must extend up to the date of the application for title. Therefore, if an adverse possessor applies to the Land Registry after discussions about ownership or an attempted eviction, they may fail to satisfy this requirement. It would not matter if that belief had been held for the previous ten years or more; if they had been made aware of the dispute before applying and lost their reasonable belief, the condition would not be satisfied.
It is evident that the new rules on adverse possession create a tactical minefield for disputing neighbours and lawyers alike and neighbour disputes of this nature are renowned for being not only difficult to resolve but also for the often prohibitive legal costs that can result. The structure imposed by the LRA no doubt creates more certainty than earlier case law in this area. This, along with the guidance of Lady Justice Arden will, it is hoped, result in neighbours and conveyancing solicitors giving careful thought to early resolution of any potential uncertainties over boundaries.
The above may lead you to conclude that if you are a paper title owner in this situation, you should present clear evidence that the possessor’s belief must be wrong, in an attempt to stop their reasonable belief. A boundary expert’s report in your favour may be the best way. If you simply take possession instead, the possessor has six months to register their interest, notwithstanding that they may have lost their reasonable belief along with possession of the land.
If you are an adverse possessor with over ten years possession, you must apply to be registered as proprietor immediately, before being presented with evidence which would make your belief unreasonable. However this invites the question of why someone who reasonably believed they were the owner of a piece of land would apply to register a possessory interest until they were presented with evidence to the contrary?
If you would like advice on adverse possession or any other form of neighbour dispute, please contact our Property and Neighbour Disputes team on 0117 904 6000.
