Whose land is it anyway? A recent adverse possession case has rendered successful claims even less likely
23rd August 2021
Adverse possession is a legal principle whereby a person who does not have legal title can become the owner of land by being in possession of it for long enough to oust the title of the true owner. In modern times, the Limitation Act 1980 rendered a legal owner’s claim for possession statute-barred after 12 years if the squatter could prove they had been in control of the land for that period to the exclusion of the true owner. This is still the case for unregistered land but, in 2003, the Land Registration Act 2002 introduced a completely new regime for registered land. It is now almost impossible to obtain title by adverse possession of registered land against the will of the true owner, but there are three exceptions to the general rule. The most significant of these was put to the test last year in Dowse v City of Bradford Metropolitan District Council  UKUT 0202 (LC).
The Land Registration Act 2002
The Law Commission Report which preceded the 2002 Act said that under the new rules:
“… the squatter’s application will be rejected, unless he or she can establish one of the very limited exceptional grounds which will entitle him or her to be registered anyway. Of these exceptional grounds, the only significant one is where a neighbour can prove that he or she was in adverse possession of the land in question for 10 years and believed on reasonable grounds that he or she owned it. This exception is intended to meet the case where the physical and legal boundaries do not coincide.”
Although the 2002 Act reduces the period which a squatter must be in adverse possession from 12 years to 10 years, the registered proprietor can now serve a counter-notice opposing the registration and the claim will be rejected unless the applicant can prove one of the three conditions set out in Schedule 6 paragraph 5 of the Act. The most frequently used condition is the third condition, which is that:
- the land to which the application relates is adjacent to land belonging to the applicant;
- the exact line of the boundary between the two has not been determined under rules under section 60;
- for at least 10 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 them; and
- the estate to which the application relates was registered more than one year prior to the date of the application.
The decision in Dowse
A literal reading of the condition has permitted many a squatter to rely on it to justify claims for large plots of neighbouring land which go way beyond that in the immediate vicinity of the boundary. In most adverse possession claims the plot claimed is “adjacent” to land belonging to the applicant and conditions (b) and (d) are also fulfilled. Disputes have, therefore, tended to turn on what the squatter “reasonably believed”, which an absent landowner will probably only be able to guess at. But as, Fancourt J explained in Dowse, this is to misunderstand the scope of the third condition.
Dowse related to an area of open land behind Roy Dowse’s property measuring about two acres. Dowse claimed to have been in possession of the land for well over 10 years by using it for grazing livestock, storing materials and keeping a caravan. Before the Upper Tribunal (Lands Chamber), Dowse’s counsel accepted that “adjacent to” in condition 3 means “having a boundary with”, not merely being in close proximity to, but argued that the third condition was not limited to boundary disputes.
In considering whether the applicant’s literal reading of the condition could be right, Fancourt J found: “Objectively, the cases in para 5 of Schedule 6 are exceptional cases, in which after only 10 years’ adverse possession, without warning to the proprietor to the proprietor and despite the general hardening of legislative policy against squatters, the squatter can acquire the proprietor’s title. In that context, one would expect to find some clear justification in the conditions for the exceptional treatment in those cases, not conditions that are merely incidental to the core justification of adverse possession.
“On that basis, reading conditions (a), (b) and (c) together, it is clear that the exception is to the effect that the applicant was justified in believing that the true position of the boundary was where he believed it to be. The exception is necessarily to do with the position of the boundary, and not simply giving effect to a reasonable belief of the applicant as to ownership, otherwise conditions
(a) and (b) would be otiose. It would otherwise be bizarre that parliament should intend to allow the proprietor to be dispossessed after only 10 years, without warning, if part of the disputed land adjoined the applicant’s land but not if it did not, and not in a case where
the boundary had been fixed, even if the claim to adverse possession had nothing to do with the general boundary between the applicant’s land and the disputed land…
“The claim to adverse possession of the greater part of disputed land that does not adjoin the boundary can have nothing to do with the position of the boundary between the two parcels.”
Tightening the net
Accordingly, the third exception is a much narrower exception than has previously been thought. In most cases a claim will only succeed if the disputed land is on the applicant’s side of the dividing fence and the legal ownership of the area is questionable by virtue
of the general boundaries rule. The Dowse case clarifies the scope of the exception and will undoubtedly result in a reduction of cynical attempts to purloin a neighbour’s land.
First published in the Estate Gazette on the 21st of August 2021.