What is mine is yours… or not, as the recent decision in Dowse and Another v City of Bradford Metropolitan District Council  UKUT 202 (LC) demonstrates in providing useful guidance for landowners and applicants alike regarding adverse possession claims.
What is “adverse possession”?
In brief, possession of land is “adverse” if that person is not entitled to occupy and use it. If a squatter’s adverse possession continues unopposed for a period of time specified by law, subject to satisfying certain requirements, it can apply to become the legal proprietor of the land without paying any compensation to the “true owner”.
In order to acquire title by adverse possession, a squatter must show that it has been in factual possession of the land and that it had an intention to possess the land “adversely”, i.e. without legal entitlement or without the owner’s consent.
What regimes govern adverse possession claims?
There are two regimes which govern adverse possession claims. The regime which an applicant chooses to apply under will generally depend on when the period of adverse possession took place, if the land is registered and, if so, when the land was registered.
- The adverse possession regime under the Limitation Act 1980 and the transitional provisions in Schedule 12, paragraph 18(1) of the Land Registration Act 2002 (the “LRA 2002”); and
- The adverse possession regime under Schedule 6 of the LRA 2002.
In this case, the Upper Tribunal was considering an adverse possession application under the latter regime.
Applying under Schedule 6 of the LRA 2002
An application under this regime:
- Relates to registered land;
- Enables a squatter to apply for registration as the proprietor of the land after 10 years of continuous adverse possession ending on the date of the application;
- Requires the applicant to prove adverse possession for the ten-year period. It will not be presumed.
Once the application has been made, the registered proprietor of the land will be given notice by HM Land Registry.
The registered proprietor is entitled to serve a counter-notice in respect of an application brought under this regime. This can object to the applicant’s alleged factual possession of the land and/or ask the registrar to deal with the application under paragraph 5 of Schedule 6 of the LRA 2002.
Can the applicant succeed even if a counter-notice has been served?
If the application is opposed in this way, the applicant must establish one or more of the grounds or “gateways” contained in Schedule 6 Paragraph 5 of the LRA 2002 in order to succeed in its application:
- Proprietary estoppel e.g. it would be unconscionable for the squatter to be removed from the land;
- The applicant is for some other reason entitled to be registered as the proprietor of the estate; or
- There has been a reasonable mistake as to the boundary position. This requires the applicant to show:
- The land to which the application relates is adjacent to land belonging to the applicant;
- The exact line of the boundary between the two parcels of land has not been determined under section 60 of the Land Registration Act 2002;
- The estate to which the application relates was registered more than one year prior to the date of the application;
- 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 them.
If an applicant’s first application is unsuccessful, it is not necessarily the end of the story as an applicant may be able to make a second application in specific circumstances.
Facts of the case
Mr and Mrs Dowse claimed adverse possession of approximately two acres of land which bordered their property (the “Application Land”). At the rear of Mr and Mr Dowse’s property was a fence, which separated their property from the Application Land. The Application Land therefore bordered the end of Mr and Mrs Dowse’s garden.
Mr and Mrs Dowse relied on the fact that they had used the Application Land since the 1970s primarily for grazing and storage of a caravan and trailer. The registered proprietor of the Application Land was Bradford District Council.
In 2001, Mr and Mrs Dowse made an application to have title of the Application Land registered in their name on the basis of 12 years adverse possession (under the old regime). However, this was rejected on the basis that it was clear that the land was only used for grazing and the land was not in any event in Mr and Mrs Dowse’s exclusive possession.
The couple went on to intensify their use of the Application Land to make access more difficult including growing hay and storing materials including positioning a caravan and trailer. In 2017, they made a second application to HM Land Registry, this time under the new regime. Mr and Mrs Dowse confirmed their intention to rely on the third gateway as set out above (para 5(4) of Schedule 6 of the Act) stating that there had been a reasonable mistake as to the boundary position.
The primary focus of the case therefore was on the third gateway and its interpretation.
Following rejection by HM Land Registry, the couple referred the case to the First-Tier Tribunal (the “FTT”). They argued that the extent of their adjacent land was sufficient to adversely possess the whole of the Application Land. This was denied by the Council who asserted that the majority of the land adjacent to the Application Land was owned by them.
The FTT held that para 5(4) of Schedule 6 of the Act only applied in the case of a boundary dispute, which did not arise here. The Judge went on to say that para 5(4) Act required Mr and Mrs Dowse to prove that they reasonably believed that they had paper title to the land claimed, which they could not.
Mr and Mrs Dowse appealed this decision to the Upper Tribunal (the “UT”) and argued that they had satisfied the third condition of paragraph 5 of Schedule 6 of the LRA 2002 as:
- The land in respect of which they were claiming adverse possession was adjacent to their land;
- The boundary between the two parcels of land had not been determined under section 60 of the LRA 2002;
- They had “reasonably believed” that they owned the land for at least 10 years; and
- The land had been registered more than one year prior to the date of application.
Specifically the couple relied on a literal interpretation of the conditions arguing that the land bordered their garden and had a boundary with their property so could arguably be seen to be “adjacent” for the purposes of the LRA 2002.
However, this was rejected by the Judge in the UT, who stated that this condition would only be satisfied if “the whole (or substantially the whole) of the disputed land was capable of being described as “adjacent to” the applicant’s land”.
In his Judgment the Judge stated that:
“the application land in this appeal is not “adjacent to” land belonging to the Appellants, within the meaning of para 5(4)(a) of Schedule 6. Only a very small part of it was within the area of the general boundary with No.135. The land to which the application relates is not adjacent to land belonging to the Appellants, within the meaning of para 5(4). On that basis, the Appellants cannot succeed even if they prove adverse possession and a reasonable belief that the application land belonged to them for the period from 2007 to 2017.
The Land in this case could not be said to be adjacent to the property belonging to Mr and Mrs Dowse as only a small fraction of it was. The whole of the land, or a substantial part, would need to be adjacent to the Dowse’s property in order for condition (a) to apply.”
Here, only a small area of the Application Land could be said to be adjacent to Mr and Mrs Dowse’s land. In order to succeed on this ground, an applicant would need to be able to demonstrate that the whole of their land (or a substantial part of it) was adjacent to the Application Land. Since, Mr and Mrs Dowse could not do this, the Judge ruled that the couple could not succeed even if they proved adverse possession and a reasonable belief that the Application Land belonged to them for a ten year period. The appeal therefore failed.
Key take away from the decision
This case demonstrates the strict approach the Courts are likely to take in adverse possession cases in implementing the restrictions the LRA 2002 was designed to enforce. It will be important when making an application to have serious consideration from the outset as to whether, on the specific facts and circumstances of the case, any of the gateways can be said to apply.
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