Adverse Possession: 10 years immediately preceding or any 10 years?

The Supreme Court recently published its landmark judgment in the case of Brown (Respondent) -v- Ridley and Another (Appellants) which considered the correct interpretation of the ’10-year reasonable belief’ requirement contained within the Land Registration Act 2002. 

What is adverse possession?

Adverse possession is a principle whereby someone can claim ownership of land if they have occupied the land without the owner’s permission for the ‘requisite period’. In order to apply for adverse possession, the applicant must be able to prove both uninterrupted possession of land for the requisite 10-year period (or 12 years for unregistered land) and the intention to possess the land during this period.

Paragraph 5 of Schedule 6 of the Land Registration Act 2002 (LRA) also requires that an applicant is able to meet any of the following conditions:

(2) The first condition is such that it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and 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 as follows:

1. the land to which the application relates is adjacent to land belonging to the applicant,
2. the exact line of the boundary between the two has not been determined under rules under section 60;
3. 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
4. the estate to which the application relates was registered more than one year prior to the date of the application.

Brown -v- Ridley – A Neighbourly Dispute

In Brown (Respondent) -v- Ridley and Another (Appellants), Mr Brown purchased a piece of land in 2002. Mr and Mrs Ridley subsequently purchased an adjacent piece of land in 2004. Between the two properties was an enclosed strip of land bounded by both a fence and a hedge which had been installed by the previous owner to the Ridley property. Mr and Mrs Ridley believed that they owned this strip of land and used the same as part of their garden and later as part of the site for the erection of a new house. In preparation for the impending construction work, the Ridleys removed the fence and hedge. In October 2019 following removal of the fence and hedge, Mr Brown advised the Ridleys that he considered the construction work to be in breach of the Party Wall Act etc. 1996. Subsequently, in December 2019, Mr and Mrs Ridley applied to the Land Registry to be registered as owners of the strip of land in question, claiming adverse possession. Mr Brown objected to Mr and Mrs Ridley’s application. 

The Land Registry referred the matter to the First-Tier Tribunal which found in favour of the Ridleys despite noting that the Ridleys had only had a reasonable belief that they owned the disputed land until February 2018 (around 21 months prior to their application). Mr Brown then successfully appealed to the Upper Tribunal. The Upper Tribunal considered itself bound by the precedent set in Zarb -v- Parry [2011] which found that the ‘reasonable belief’ must subsist up to shortly before the application date and therefore that an application for adverse possession must be made promptly once the applicant realises that they do not own the land. The Ridleys subsequently used the leapfrog procedure to appeal directly to the UK Supreme Court. 

The issue before the Supreme Court was whether:

1. The 10-years of reasonable belief of ownership required under paragraph 5(4)(c) of the LRA (cited above) must end immediately prior to an application for adverse possession being made (Construction A); or
2. Whether an applicant can rely upon any 10-year continuous period of possession (Construction B). 

In a landmark judgment, the Supreme Court unanimously found in favour of Mr and Mrs Ridley, favouring the Construction B interpretation or the ‘any 10-years’ approach. The Supreme Court found difficulty in the Construction A interpretation with Lord Briggs noting that “[t]he notion that Parliament should have intended that [a squatter], upon realising their mistake, must immediately start a process likely to lead to a dispute and litigation seems most unlikely. But this is what construction A would require.” The Supreme Court considered the Construction A interpretation to be both “unrealistic” and “unattractive”. 

Impact of this Decision

The Supreme Court’s decision removes the need for applicants to act immediately upon discovering that they do not own land in dispute. This has significant implications for property owners who will be at risk of losing parts of their land to adverse possession claims even where the applicant no longer has reasonable belief of their ownership. So long as the applicant can prove that a 10-year period has occurred at some stage (and provided the rest of the criteria is are met) they will be legally entitled to be the registered proprietor of that land. Landowners should satisfy themselves of their own property boundaries and take timely action where someone is using their land without consent to avoid another party meeting the 10-year adverse possession requirement. Parties to any potential boundary dispute would be advised to first determine the precise boundary under section 60 of the LRA. This will establish whether the claimant has actually been in adverse possession for the ‘requisite period’, which as a result of Brown v Ridley is now any 10-year period.