Under the Land Registration Act 2002, applicants can apply for registration on the basis of at least 10 years in adverse possession – and will be registered as proprietor of the land if the landowner fails to respond when notified of the application or, having seen off the claim, fails to evict the applicant within the next two years.
However, if the landowner serves a counter-notice in time and takes advantage of the rules laid down in the 2002 Act, the application will fail unless the applicant can bring himself within one of three exceptional cases set out in paragraphs 5(2)-(4) of Schedule 6 of the Act.
In those cases – (2) where there is a proprietary estoppel in the applicant’s favour; (3) where the applicant is entitled to be registered as the proprietor for some other reason; or (4) where the land in question is adjacent to land belonging to the applicant, and the exact position of the boundary between the parcels has not been determined under the Land Registration Rules 2003, and the applicant has reasonably believed that the land belonged to him – 10 years’ adverse possession will suffice, and the landowner will be unable to recover possession.
Dowse v City of Bradford Metropolitan District Council [2020] UKUT 0202 (LC) concerned land divided by a fence from open land at the rear. The land in dispute comprised approximately 2 acres, which the applicants had used for grazing and storing materials.
Having applied to be registered with title to the land in 2001 – unsuccessfully, because the Land Registry did not believe that they had been in exclusive occupation – the applicants decided to try again, relying on paragraph 5(4) of schedule 6 of the 2002 Act. However, their application failed again, this time because only a small fraction of the land in dispute could be described as being adjacent to their land.
Mr Justice Fancourt explained that the requirements that the application land and the land belonging to the applicant must adjoin each other, and that there must be a general boundary, mean that there must be uncertainty about the true position of the common boundary.
It followed that the applicant’s land must adjoin the whole, or possibly substantially the whole, of the disputed land, and not simply a part of it. Or, to put it another way, the exception in paragraph 5(4) is limited to land in the area of the general boundary between the respective parcels – ie to boundary disputes – and is relatively narrow.
In this case, the plan attached to the judge’s decision revealed that the application land shared a boundary with at least 17 more dwellings, as well as other land. So this was not a dispute about the position of the boundary between two properties and the application was unsuccessful.
This conclusion meant that the judge did not need to consider whether the applicants had been in adverse possession of the application land, whether they had believed that it belonged to them, and, if so, whether their belief was objectively reasonable.
However, the judge made it clear that it is not the case that a person who intends to possess land will, as a matter of course, reasonably believe that he owns it. And he questioned whether the applicants could show that they had reasonably believed that the application land belonged to them, given that their previous application to be registered as proprietors was unsuccessful.
Allyson Colby, property law consultant
