The Land Registration Act 2002 was thought to have killed off adverse possession as an active legal mechanism, but the recent case of Brown v Ridley has reopened the debate. The central issue: when is the 10-year period during which the applicant must have a reasonable belief to satisfy paragraph 5(4) of schedule 6? This is one of the three conditions which an applicant must satisfy if the registered title owner objects to the application for adverse possession.
The debate in Brown v Ridley highlights how a title owner still needs to be aware that adverse possession can rob someone of their land. And it could be very valuable land indeed, such as agricultural land that has residential planning potential.
The crux of Brown v Ridley (so far) is that the 2011 Court of Appeal decision in Zarb v Parry was binding. Zarb v Parry decided that paragraph 5(4) should be construed to mean that a 10-year period of reasonable belief was the 10 years immediately prior to the date of the application. The practical problem that arises with this is the person making the application no longer has that reasonable belief once they become aware of the fact that the land is not in their title.
So, what the court has in effect done is to create a short period of grace in which to make an application to ensure it complies with the requirement that the belief was for a 10-year period ending at the time of the application. But the question for practitioners is how short is ‘short’. For example, if the fee-earners receive instructions on 23 December does an application need to be made on 24 December or does the period of grace extend to a month or two or more?
Brown v Ridley at the Court of Appeal level found that although it considered that Zarb was binding on this point, it commented that it was probably wrongly decided and that the correct interpretation of paragraph 5(4) is that any 10-year period meets the condition – in effect whenever the 10 years occurred. So why does this issue about the correct period of a 10-year belief matter, apart from giving property lawyers something to debate and a possible personal indemnity insurance trap for the unwary?
The issue goes to the heart of what the Land Registration Act 2002 was intended to achieve. When it comes before the Supreme Court, it will have to consider the intention of the act. The current interpretation is that a reasonable belief for a 10-year period ends on the date of the application, subject to making the application promptly. The Land Registration Act 2002 was intended to make land ownership more certain and make it more difficult for land to be lost through adverse possession, except in limited circumstances. If this 10-year period of reasonable belief can be any 10-year period whatsoever, then that must add uncertainty to the system of registered land. If the person claiming adverse possession can roll back to any 10-year period, to when they had a reasonable belief that the land in dispute was within their title, then that shifts the balance heavily against the registered title owner. Time will tell how the Supreme Court approaches this problem.
The registered title owner who wants to challenge the reasonable belief will often request the conveyancing file from when the applicant purchased their title. This enables them to consider whether there is any evidence that the applicant could not have had a reasonable belief. There may be something in the conveyancing file which makes it impossible to say that the applicant reasonably believed the disputed land was in their title. However, if it were to be any 10-year period then that period could reach back a long time, and the conveyancing file may not still be available or at least more difficult to locate. This would create greater uncertainty and possibly open the floodgates to more claims. Though this could cause more uncertainty, other aspects of the act already have this effect – for example, the general boundaries rule which some say is absurd and makes a Land Registry title virtually useless.
There must be a way of enabling claims based on a reasonable belief to be brought while not preventing the title owner from being able to fairly contest such claims. The solution in my view is to impose a time limit from when the belief is no longer reasonable in which to bring a claim. This is not that far removed from the idea of the applicant having to act promptly. A period of two months would probably be appropriate, and this could be achieved by a simple amendment to the act. However, in a busy political environment that may not happen anytime soon.
Will the Supreme Court go for a strict interpretation, or will it use common sense and for policy reasons decide on something which makes the current legislation workable? The Land Registration Act 2002 to the ordinary citizen creates absurd situations such as general boundaries. The interpretation of the period of reasonable belief in paragraph 5(4) of schedule 6 is another example.
The act probably needs an overhaul if we want a modern land registration system which creates certainty. Not only that, but we also need a Land Registry which has the desire to work efficiently.
Tony Reeves is a consultant at Fleet Law, Gloucester
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