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What is Adverse Possession?

Adverse Possession is the occupation of land inconsistent with the right of the 'true owner'. Put simply, adverse possession allows a person without legal title to the land or property to claim ownership of the land when they have occupied it without consent. The principles regarding adverse possession were clarified in the Judgment of Zarb v Parry [2011] in the Court of Appeal, proving it to be a difficult area for the future for conveyancers, neighbours and property litigation lawyers.

Background

The Limitation Act 1980 placed a negative nature upon adverse possession. This meant that adverse possession could be acquired provided 12 years' possession could be established on behalf of the third party. Once the 12 year period had expired, the 'true owner' with paper title, could not reclaim their land. "Limitation extinguishes the right of the true owner to recover the land, so that squatters' possession becomes impregnable, giving him a title superior to all other" (Buckinghamshire County Council v Moran [1990]). After twelve years of adverse possession, the paper proprietor held the land on trust for the squatter who could apply to be the registered proprietor. However, the Land Registration Act 2002 brought fundamental changes in the law with regard to registered land. With unregistered land, adverse possession can still be acquired after 12 years.

The Land Registration Act 2002

The main purpose of the Act was to encourage registered owners to keep control over their land and to encourage the registration of unregistered land.

The relevant provisions of the Act include:-

  1. There is no limitation period for the recovery of a registered estate in land. However, if the adverse possessor has possessed for 10 years or more, they may apply to be registered as the legal owner. However, if proceedings for possession have already begun, the adverse possessor cannot apply to be the registered owner.
  2. following on from the above however, Section 98 of the Act states:
  • A person has a defence to an action for possession of land if:
  • 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 the registered proprietor of an estate in land and, he had made such an application on that day, the condition in paragraph 5(4) of the Schedule would have been satisfied.
Zarb v Parry considered the aforementioned conditions.

Zarb v Parry [2011]

The Facts
  • The land compromising both the Claimant's and Defendant's properties were owned by Mr Little. Mr Little separated the land in 1985, retaining the Daisymore property and settling Fleet Cottage.
  • In 1992, Mr Little sold an additional parcel of land at Daisymore to the owners of Fleet Cottage, allowing the garden to be enlarged. This parcel of land was central to the dispute.
  • Daisymore was purchase in 2000 by the Claimants, who alleged the hedge, which the then owners of Fleet Cottage took to be the boundary between the properties, did not follow the boundary as set out in the 1992 conveyance.
  • In 2007, the Claimants attempted to take adverse possession of the parcel of land, forcibly. They informed the Defendants that the intended to retain the land back and cut down the sapling, and began to install two new fences before being interrupted by the Defendants.
  • In 2009, the Claimants issued court proceedings to obtain a declaration noting that the boundary matched that of the 1992 conveyance. The Defendants argued that the legal boundary followed that of the physical features of the land, and also relied upon S.98.

The Decision

It was accepted that the Claimants were the paper owners of the title. However, it was held that the Defendants were able to establish adverse possession. This decision was appealed by the Claimants on the following grounds:

The previous owners of Fleet Cottages' possession of the land was implied consent from Mr Little meaning possession of such land could not be adverse,

  1. The Defendant's averse possession had been interrupted in 2007 by the Claimants. The Claimants argued that the time period began running from this date; and
  2. The Defendant's did not reasonably believe that they owned the land throughout the previous period of 10 years as provided in Schedule 6, paragraph 5(4)(c). Although the Claimant's only required one of the above grounds to be satisfied, the Court of Appeal unanimously dismissed same.

The Court of Appeal Reasoning

Regarding the first ground, Lady Justice Arden found that erecting a stock- proof fence did not indicate consent to possess the parcel of land. She provided that the crucial question was whether the acts and words of Mr Little were "probative of and not merely consistent with the giving of permission". The Claimants had not done enough to cause adverse possession to cease. This point was emphasised by the fact that the Claimant's ceased in their attempt to take possession half way through same. On receipt of confrontation from the Defendant's they abandoned their enterprise. It was found that on all evidence available, the Defendant's belief of possession was reasonable.

Practical Implications of the Decision

The above decision has created a path which will need to be tread carefully by those claiming adverse possession and owners of land. It was suggested in Zarb v Parry that all potential purchasers ensure all boundaries are agreed, recorded by deed and subsequently registered with the Land Registry. Therefore, if you are an adverse possessor with over 10 years possession, then the best course of action would be to apply to be registered as the proprietor before they are presented with evidence making their belief unreasonable.