Summary
The Supreme Court has determined that, in the context of a boundary dispute, one element a person in adverse possession must prove in order to be registered as proprietor of an estate is less restrictive than had previously been assumed.
In addition to being in adverse possession for 10 years, paragraph 5(4)(c) of Schedule 6 of the Land Registration Act 2002 (‘LRA 2002’) requires that, in the boundary dispute context, a successful applicant must have 10 years’ reasonable belief they own the land in question.
In a long-awaited determination on the construction of paragraph 5(4)(c), the Supreme Court has confirmed that the 10-year period of reasonable belief can be any period of 10 years within the period of adverse possession: it does not need to be the 10-year period immediately preceding the application for registration.
Introduction
There are few types of litigation that stoke controversy like boundary disputes and few areas of law that that stoke controversy like adverse possession.
Prior to the coming into force of the LRA 2002 in October 2023, sections 15 and 17 of the Limitation Act 1980 (‘LA 1980’) operated to devest a paper owner of their ability to recover possession from a squatter who had been in adverse possession of their land for 12 years. Whilst this remains the position in respect of unregistered land, title to approximately 89% of the land mass in England and Wales is registered and, in respect of those titles, the scheme set out in Schedule 6 of the LRA 2002 applies.
Whereas the LA 1980 operates automatically on the paper owner’s title, the LRA 2002 scheme focuses on the adverse possessor, who – after a period of 10 years – obtains the right to apply for full registered title.[1] For the paper owner notified of such an application, one option is to serve a counter notice, which will be effective unless certain conditions are satisfied. One important situation where a counter notice will not be effective is the ‘neighbour condition’ – set out in paragraph 5(4) of Schedule 6 of the LRA 2002:
(4) The third condition is 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.
Sub-paragraph (c) above has given rise to confusion, given it can bear at least two possible meanings:
- The adverse possessor must maintain their 10 years of reasonable belief up to the day they make the application (‘the restrictive interpretation’).
- The adverse possessor must demonstrate 10 years of reasonable belief at any time within the potentially longer period of adverse possession (‘the broader interpretation’).
Zarb v Parry [2011] EWCA Civ 1306
This case was an action for a declaration that the true boundary between neighbouring properties included land the Defendants were occupying as their garden. The Defendants relied upon section 98 of the LRA 2002, subsection (1) of which provides:
(1) 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.
On appeal, the issues before the court were threefold:
(i) Was the judge at first instance in error in rejecting the argument that possession of the strip had been with the previous owner’s consent, so that the possession could not be adverse?
(ii) Was the judge correct to hold that the adverse possession of the strip by the Respondents had not been interrupted by the Appellants’ attempt to fence off the strip in July 2007, so as to start time running again?
(iii) Did the Respondents satisfy the requirement in paragraph 5(4)(c) of Schedule 6 of the 2002 Act?
The Court of Appeal heard from counsel for the Claimants on all three issues but required the Defendant’s counsel only to address them on the second issue and, in dismissing the appeal, the judgments of Arden LJ and Lord Neuberger MR focused chiefly on that issue.
Arden LJ discussed the third issue at paragraphs 45 – 52 of her judgment but mostly focused on the “reasonableness” element of the requirement in paragraph 5(4)(c). Neither she nor Lord Neuberger commented directly on the appropriate timeframe but appear to have assumed (albeit without hearing argument on the point) that the restrictive interpretation was correct.
In particular, at paragraph 17 of her judgment, Arden LJ stated that the belief must have been reasonable in the “last ten years of his possession prior to the application for registration”, and that the adverse possessor should make an application under paragraph 5(4)(c) “as soon as” they learn facts which may render their belief unreasonable. At paragraph 55, Arden LJ suggested that that the adverse possessor can succeed if they act “promptly”. In his concurring judgment, Lord Neuberger briefly discussed the third issue and indicated, at paragraph 79, that the relevant period for considering the reasonable belief was the ten years immediately preceding the action.
This had the overall effect of supporting the general application of the restrictive interpretation. However, as no comparative analysis was undertaken between the two constructions by the Court of Appeal, this issue remained substantially unresolved until the Supreme Court’s recent decision in Brown v Ridley.
Brown v Ridley [2025] UKSC 7
Given the question for the Supreme Court was one of statutory construction, the facts that gave rise to the appeal are of limited importance but nonetheless serve as useful illustration.
The parties were the freehold proprietors of title to adjoining parcels of land in County Durham. Since 2004, the Ridleys had been in possession of a strip of land between those parcels, title to which was registered in the name of the Browns.
Initially, the Ridleys reasonably believed that they the strip of land belonged to them. They used the land first as a garden and later determined to build a house on it. It was during the planning permission phase preceding that building project in February 2018 that they discovered that they were not in fact the owners of the strip of land.
The Ridleys applied to be registered as proprietors of the strip of land on 20th December 2019, approximately 21 months after they were disabused of the belief that they owned it.
Following the service of a counter notice by the Browns, the question became whether the Ridleys could benefit from the neighbour condition to nonetheless be registered as proprietors. More specifically, the question was whether they could satisfy the requirements of paragraph 5(4)(c) of Schedule 6 of the LRA 2002.
The Ridleys were successful before the First-Tier Tribunal, Judge Bastin concluding that he was not bound to apply the restrictive interpretation adopted in Zarb. The Browns’ appeal to the Upper Tribunal was successful, Johnson J concluding that he was bound by Zarb to adopt the restrictive interpretation – though offering his view that such an interpretation was wrong ([2024] UKUT 14 (LC) at paragraphs 122 – 162).
That being the context, Johnson J granted the Ridleys permission to appeal directly to the Supreme Court using the leapfrog procedure (section 12 of the Administration of Justice Act 1969).
The Supreme Court has now allowed the Ridleys’ appeal, Lord Briggs (with whom the other four justices agreed) gave the only judgment.
Citing adverse possession in its historical context, the court noted that the restriction of adverse possession to the boundary context makes sense since it is “where the register is at its weakest in answering questions” (paragraph 24) due to the general boundary rule in section 60 of the LRA 2002 and therefore is “where adverse possession has the most useful continuing role to play…” Seen in this context, a restrictive reading of paragraph 5(4)(c), is less justifiable.
The court also endorsed a more fundamental practical point made by both Judge Bastin and Johnson J: it is unrealistic to expect a person in adverse possession to apply to be registered as owner of land they reasonably believe they already own. In the typical boundary setting, the fact that the person in adverse possession has learnt they are not the owner of the land will be the very reason they apply to be registered. Notwithstanding the time such an application would take to prepare, the restrictive interpretation would doom such an application to failure and thereby render the neighbour condition illusory.
The Browns’ response to this criticism chiefly relied on an interpretation of the de minimis principle: that the law does not concern itself with trifling matters. It was suggested on their behalf that a minor delay between the end of an applicant’s reasonable belief and the making of an application should be overlooked. This submission was roundly rejected (see [2025] UKSC 7 at paragraphs 30 – 38); the court’s criticism included the observation that the one to two months’ grace suggested was simply not a trifling matter but one of substance. The fact it was not catered for expressly in legislation which does so in other areas – see, for example, Schedule 6, paragraph 1(2)) – further supports the broader interpretation of paragraph 5(4)(c).
Comment
The limits on adverse possession imposed by the LRA 2002 are now more clearly seen. The approach taken by the court in Brown is a sensible one that accounts for the reality that a person in adverse possession is only likely to contemplate an application once they no longer reasonably believe in their ownership.
It is submitted that the court was correct to reject what would have substantively amounted to an expansion of the de minimis principle. When one considers the practicalities of taking legal advice, considering alternatives and preparing an application, the time required for those steps is clearly beyond de minimis. The court was also correct to reject the Respondent’s argument based on the principle in R v Soneji and affirm its scope, having recently clarified it in A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27 (as to which, see Charles’ article here).
An interesting argument raised by the Respondent was that the broader interpretation could cause registered owners to answer allegations of a reasonable belief from the distant past – presenting “unfair forensic disadvantages”. The answer to that is that it is no different from the majority of cases where a Claimant is incentivised to bring a claim fairly promptly by the practical difficulties in evidence gathering that all litigators will be familiar with.
Boundary disputes are “a particularly painful form of litigation”[2] and, in this context, it is hoped that the Supreme Court’s judgment will generally make parties think carefully before seeking to challenge the status quo. It perhaps will also help avoid sterile, time-consuming and expensive debates as to statutory interpretation in favour of those focused on more important questions of entitlement.
Charles practises in the areas of real estate, agricultural and commercial law and frequently deals with boundary disputes and claims in respect of registered land. Find out more about Charles here.
Nicole has a broad practice across commercial and chancery matters and has dealt with the intricacies of the landlord and tenant regime from straightforward possession claims to fast-track litigation. Find out more about Nicole here.
This article is provided for general information purposes only. It is not legal advice and reliance should not be placed on it. Specific advice should be obtained in relation to any case or matter.
[1] Section 98 LRA 2002 also provides for a defence on the basis of adverse possession. Paragraph 1(2) of Schedule 6 gives a qualified right to apply for registered title to an adverse possessor who has been evicted.
[2] As described by Lord Hoffman in Wibberley Building Ltd v Insley [1999] 1 W.L.R. 894