Welcome to the second edition of RED Alert of 2024.
Also featuring in this month's update:
Brown v Ridley and Another [2024] UKUT 14(LC); [2024] PLSCS 19
Summary
The Upper Tribunal (Lands Chamber) considered the requirement of an applicant for adverse possession to demonstrate a reasonable belief that the land belonged to them for a period of ten years, and whether this period ended on the date of the application or whether this could be any period of 10 years within the period of adverse possession.
The facts
In October 2019, Mr Brown discovered that part of the land upon which his neighbours, Mr and Mrs Ridley, had constructed a property, lay within the title of Mr Brown's land.
In December 2019, following correspondence between the parties, Mr and Mrs Ridley made an application to the Land Registry seeking registration as proprietors based on adverse possession. This was opposed by Mr Brown.
Under the Land Registration Act 2002, a condition of a successful application for adverse possession is that:
“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”.
Mr Brown raised the argument that the Ridleys had become aware that they were not the proprietors of the land prior to making the application and, therefore, did not satisfy the condition.
Judgment at first instance
Judge Bastin in the First-tier Tribunal decided that the Ridleys had been in adverse possession since 2004 and had reasonably believed that they owned the land from that date, however, they had ceased to hold that reasonable belief in February 2018.
Accordingly, it was for the FTT to decide whether the Ridleys were required to show ten years of reasonable belief of ownership:
- up to the date of their application
- whether any ten year period within the period of adverse possession would be sufficient for a successful application.
Judge Bastin found in favour of the Ridleys, on the basis that a 10 year period between 2004 and 2018 had been obtained.
This prompted an appeal from Mr Brown.
The decision
On appeal to the Upper Tribunal, Edwin Johnson J determined that the correct interpretation, as confirmed by the Court of Appeal in Zarb v Parry, was that the 10 year period during which a reasonable belief of ownership existed must run to the making of the application.
On the basis that the FTT judge had determined that such belief ended in February 2018, over a year before the application by the Ridleys was made, the adverse possession claim could not succeed.
Our comment
This case makes clear that the judgement in Zarb v Parry is a binding authority. Accordingly, potential claimants need to make an application to Land Registry “promptly” after discovering facts which may change their reasonable belief as to ownership of the land.
Whilst Zarb is binding, for now, the Upper Tribunal doubted the correctness of the Court of Appeal's analysis in Zarb, suggesting a preference for the “any ten years” interpretation of the condition.
Practically, a person will only make an application for registration after they realise that they do not already have the registered title to it. This therefore creates an "absurdity", where a person would have to apply for registration on the same day as making such discovery in order to be successful in their claim.
Since judgment, Edwin Johnson J has granted a ‘leapfrog’ certificate enabling the Ridleys to apply directly to the Supreme Court for permission to appeal. Time will tell whether a challenge Zarb's authority will be brought by the Ridleys.
