Brookside battle: adverse possession prevails

Welcome to the first edition of RED Alert of 2025.

Also featuring in this month's update:

• How secure is secure? Navigating the Law Commission's 1954 Act Consultation

• When forfeiture doesn't (We)work: High Court prevents landlord from forfeiting WeWork UK flagship based on insolvency grounds
  

Clapham & Others v Narga [2024] EWCA Civ 1388

Summary

The Court of Appeal allowed an appeal and held that ownership of land had been acquired by adverse possession prior to first registration, despite the fact that the title plan for adjoining land appeared to show that it belonged to another.

Background

Mr and Mrs Clapham own 24 The Green, Mr and Mrs Wright own 25-26 The Green, and Ms Narga owns Brook Barn, as shown on the image below:

A brook runs between the properties with steep slopes on either side and a dispute had arisen over who owned land between the north and south sides of the brook (the Disputed Land). Ms Narga's position was that her ownership of Brook Barn included land up to the south side of the brook. The Clapham's and the Wright's position was that their ownership of their respective properties included land up to the north side of the brook, where a fence had been erected at the top of the slope (the Fence). 

Whilst Ms Narga had requested that her vendor procure written confirmation from the Claphams and the Wrights regarding the extent of the boundary, her vendor declined to provide this. However, she did not raise this directly with her proposed neighbours before purchasing Brook Barn; instead, she went ahead with the purchase and approached them subsequently. Not accepting their position that the Disputed Land belonged to them, she unilaterally tore down the Fence and erected a new boundary along the south side of the brook.

The first instance decision

In the County Court at Leicester, it was held that the Claphams and Wrights had acquired title to the Disputed Land by adverse possession for decades but that they had lost ownership of it pursuant to provisions of the Land Registration Act 2002 (which provides for registrable dispositions of a registered estate to have priority over unprotected interests) when Ms Narga bought Brook Barn.

The Claphams and the Wrights appealed the decision but this was dismissed. Subsequently, the decision was appealed in the Court of Appeal.

The Court of Appeal decision

The appeal was allowed and it was held that the Claphams and the Wrights were entitled to be registered as owners of the Disputed Land and the Fence continued to represent the boundary between the respective properties. In particular:

• The Claphams and Wrights had acquired title to the Disputed Land by adverse possession before Brook Barn was first registered.
• Although its title plan appeared to show the Disputed Land as part of Brook Barn, the plan depicted only general boundaries and did not result in Brook Barn gaining any of the Disputed Land. To determine the exact boundary, you must consider pre-registration deeds and the position on the ground.
• Section 75 of the Land Registration Act 1925 (which provides for the proprietor of an estate in registered land to be deemed to hold it on trust where it would have been extinguished under the Limitation Act 1980 had the land been unregistered) had no application both because:
  (i) the Disputed Land did not fall within Brook Barn’s registered title as Ms Narga's vendor had no title to convey to her 
  (ii) the provision did not apply where first registration was effected only after title had been extinguished by adverse possession.

The Court of Appeal noted in particular that boundary disputes "all too often arouse great passions but usually cost far more than the property in issue is worth". In this instance, Ms Narga had purchased Brook Barn for £265,000 but the "combined legal costs of the trial and two appeals arising from this unfortunate boundary dispute now exceed £300,000".

Our comments

This case is an important reminder that title plans only depict general boundaries and indicative only. Careful due diligence should be carried out prior to purchase if there is any concern about the extent of any boundaries.