The 10-Year Period of Reasonable Belief for Adverse Possession Examined In Brown V Ridley (2024)
What is adverse possession?
Quite simply this is the physical ‘adverse’ possession of land (which one does not own) for a specified period (previously 12 years but since October 2003 now 10 years) which gives rise to legal ownership – sometimes known as squatters’ rights.
The Test
In order to successful establish legal ownership by way of adverse possession you have to show:
- Factual possession of the land
- An intention to possess the land (to the exclusion of others including the legal owner)
- Such possession was without the legal owner’s consent
The Land Registration Act 2002 introduced a new scheme for applying to register title to registered land by way of adverse possession contained in Schedule 6.
The first step is to establish that in the preceding 10 years to the application being made, the applicant was in adverse possession of the land in question
Notice of this application is then given to relevant parties including the ‘owner’ of the land to which the application relates.
Anyone who has received notice of the application may then object and require the application to be dealt with paragraph 5 of Schedule 6 of the 2002 Act.
There are then 3 further conditions before any application can be approved
(2) The first condition is that—
(a) it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and
(b) the circumstances are such that the applicant ought to be registered as the proprietor.(3) The second condition is that the applicant is for some other reason entitled
to be registered as the proprietor of the estate.(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.
Since 2002 cases on adverse possession are few and far between but recently the court was enlisted to clarify the ‘reasonable belief’ that was required in the 10 year period in the case of Brown v Ridley (2024)
Brown v Ridley (2024) – the facts
Mr and Mrs Ridley owned Valley View, The Promenade, Consett, County Durham DH8 5NJ since July 2004.
Mr Brown purchased land on the west side of the Promenade in September 2002.
The dispute concerned a strip of land lying within the boundary of Mr Brown’s land.
Mr Shaw, the predecessor of the Valley View had enclosed the Disputed Land by way of a picket fence and hedge just inside the fence. Therefore the Ridley’s had been in exclusive possession since 2004.
Mr and Mrs Ridley obtained planning permission and constructed a new dwelling between 2019/2020. This was constructed on the Disputed Land.
After Mr Brown beware aware of this and following correspondence between the parties, the Ridleys made an application on 10 December 2019. Mr Brown was given notice and obviously objected and asked for the application to be dealt with under paragraph 5 of Schedule 6.
The matter was referred by the land registry to the First Tier Tribunal for determination.
The Proceedings
The case was primarily in relation to the construction of para 5(4)(c) of Schedule 6
(i) is the period of ten years ending on the date of the relevant application or
(ii) can be any period of ten years within the period of adverse possession
Mr and Mrs Ridley claimed they became aware of the issues of ownership in October 2019 and made an application within 2 months.
Mr Brown disputed that they had been in actual adverse possession or that they held the intention to possess for the necessary 10 years.
Mr Brown also alleged that any reasonable belief they held ended on February 2018 or October 2019 and was well short of the 10 years required.
Judge Baston decided on 2 March 2023 in Mr and Mrs Ridley’s favour.
He felt that they had made out actual adverse possession and held reasonable belief during a 10 year period albeit that ended in February 2018.
Mr Brown appealed and this was heard by Justice Edwin Johnson in the Upper Tribunal (Lands Chamber) on 5 December 2023 with judgment being handed down on 23 January 2024.
The issue was whether the prior case of Zarb v Perry (2011) was binding authority that the 10 year reasonable belief had to be the 10 years ending on the date of the relevant application.
The judge decided that Zarb constitutes binding authority that this period of ten years, during which the required reasonable belief in ownership must exist, is the period of ten years ending on the date of the application for registration.
The application for registration by Mr and Mrs Ridley was therefore dismissed in Mr Brown/s favour.
But he also felt that Zarb had been wrongly decided as it allowed no period of grace from the point that one is aware there is an issue with ownership and then lodging an application.
Where next?
Where does leave matters? Mr and Mrs Ridley has been given permission to leap frog an application for permission appeal to the Supreme Court to provide clarity on the conflicting views of the Court of Appeal (in Zarb) and the Upper Tribunal (in Brown v Ridley).
If you need legal advice on adverse possession or any other property dispute, our experienced solicitors are here to help. We can provide guidance on complex matters like establishing possession rights and navigating the requirements of the Land Registration Act. Call 0330 822 3451 to discuss your case and how we can support you in achieving the best outcome.