The Upper Tribunal (UT) has allowed a landowner’s appeal against the rejection of his application to be registered as the proprietor of a parcel of land on the basis of adverse possession.
The landowner and the owner of adjoining land both carried on vehicle repair businesses from their land. The landowner applied to be registered as the proprietor of a small triangular parcel of land that formed part of the title to the adjoining land. He had used it as part of his forecourt and claimed that he had been in adverse possession of it for ten years ending with the date of the application in the mistaken belief that it formed part of his registered title. He contended that he therefore fulfilled the requirements of Schedule 6 of the Land Registration Act 2002.
The First-tier Tribunal (FTT) directed the Land Registry to cancel the application on the basis that the mistaken belief had not lasted up until the day he made the application. However, the FTT subsequently gave permission to appeal on two grounds. The first was whether the mistaken belief needed to last until the date of the application. Subsequently, the Supreme Court’s ruling in Brown v Ridley established that this is not necessary.
The appeal therefore turned on the other ground, namely whether leases granted to the landowner in 2011 and 2018 by the then owner of the adjoining land included the parcel of land. If either of the leases included it, his possession of it for the duration of the lease was as a tenant and was not adverse. If neither lease included it, the requirements of Schedule 6 were met and his appeal would succeed.
The FTT had found that the leases did not include the parcel of land. The then owner of the adjoining land had wished to retain advertising hoardings to the front of it and had excluded the land the hoardings were on from the leases. The central issue in the appeal was whether the 2018 lease had had the Land Registry Plan attached to it, which included the parcel of land, or another plan which excluded it.
The UT noted that the landowner was unlikely to have accepted a plan which included the parcel of land when he had believed at the time that he owned it. His evidence was that the same plan had been used for the 2011 and 2018 leases. The clauses excluding the parcel of land in both leases were identical, and it was unlikely that the 2018 lease had been intended for some reason to include the parcel of land when the 2011 lease did not.
The UT allowed the appeal and directed the Land Registry to give effect to the landowner’s application.
