Adverse Possession - The Belief Criteria

When it came to adverse possession, The Land Registration Act 2002 was specifically introduced so as to make applications harder to prove, so as to provide more certain on land ownership.

Any application under the Act that is contested by the land owner can only be approved if the applicant meets one of three criteria. One of those criteria (paragraph 5(4) of schedule 6) involves proving (amongst other things) that you had a reasonable belief that you owned the land for 10 years.

The recent case of Brown v Ridley is once again asking: when is the 10-year period during which the applicant must have a reasonable belief?

Previous case law comes from a 2011 Court of Appeal decision in Zarb v Parry, which 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 is how short is 'short'. A few days? A few months?

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. If this does turn out to be the case then it will undoubtedly add uncertainty back into 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 against the registered title owner.

Time will tell how the Supreme Court approaches this problem, as the matter has already been appealed.

Oliver Kew

Published on 20/11/2024