A person who is in adverse possession of registered land may apply to the Land Registry to be registered as its owner on the basis of ten years’ adverse possession of it, ending on the date of the application. If the application is opposed by the existing registered owner, the applicant must satisfy one of three conditions specified in Paragraph 5 of Schedule 6 of the Land Registration Act 2002.
One of those conditions, found in Paragraph 5(4), includes a requirement that ‘for at least ten years of the period of adverse possession ending on the date of the application’, the applicant reasonably believed that the land belonged to them. The Supreme Court recently ruled on whether the required ten-year period of reasonable belief must continue until the date of the application or whether it could end some time before the application was made.
The case concerned a strip of land which a couple had used as part of their garden since buying neighbouring land, including a house, in 2004. In February 2018, in the process of obtaining planning permission to build another house on their land, evidence emerged which meant that from that point the couple could no longer have reasonably believed they owned the strip of land. They applied to be registered as its owners in December 2019. This raised the question of how the condition in Paragraph 5(4) should be construed: was it necessary that the reasonable belief persist until the date of the application, or was it only necessary that the adverse possession continue until that date?
The Court could not discern any real purpose that the first construction would serve over the second, other than making the ability to obtain registered title under Paragraph 5(4) little more than illusory. Both constructions effectively excluded squatters who were seeking to possess land with a view to taking it from others by means of what they knew was a trespass. An application for registration of title to adjacent land along an undefined boundary could not be put together in an afternoon: it would require professional advice and the gathering of evidence.
The Court noted that a person might lose their reasonable belief that they owned land via information from a third party, without there being any apparent dispute with the relevant neighbour. It seemed unlikely that Parliament would have intended that such a person should be expected immediately to start a process likely to lead to dispute and litigation, which is what the first construction would require. The Court did not accept that the de minimis principle could justify reading into the first construction a grace period of a month or two for making an application.
The Court also found that a careful examination of the words Parliament had chosen to use tended to support the second construction. The words ‘ending on the date of the application’ naturally describe the end of a period, that period being the period of adverse possession described immediately beforehand. Even if there were not strong factors favouring the second construction in order to avoid making the statutory right illusory, the Court would construe the requirement in accordance with the second construction just on the ordinary meaning of the words. The couple were entitled to be registered as the owners of the land.