The challenge of adverse possession of registered land
After 10 years of ‘adversely possessing’ registered land, a party can apply to the Land Registry to be registered as the new owner in place of the existing one. Broadly, the applicant must demonstrate that they have exclusively possessed the land, and that the possession was both intentional and without the owner’s consent.
However, the concept of adverse possession of registered land is inherently problematic. The doctrine is not easily reconcilable with the concept of indefeasibility of title that underpins the system of land registration in the UK. The uncertainties as to ownership which may justify adverse possession of unregistered land do not apply to registered land where the legal estate is vested in the registered proprietor who is identified in the register.
The Land Registry’s adverse possession regime is based on principles of neutrality and fairness to both parties. On receipt of an application, the Land Registry will notify the paper owner of the land – typically by providing a copy of the application and supporting statement of truth. Enclosed with the notice will be a Form NAP by which the paper owner is invited to:
- consent to the registration of the applicant;
- require the Registrar to deal with the application under paragraph 5 of Schedule 6 to the Land Registration Act 2002 (the Act), commonly referred to as serving a ‘counter notice’; or
- object to the application on another ground (to be specified by the paper owner).
The Land Registry gives the paper owner a generous 65 business days (ie approximately three months) to respond. If the application is not opposed (that is, if the paper owner does not respond to the Land Registry’s notice, or returns Form NAP consenting to the registration of the applicant), the applicant will be registered as proprietor in place of the paper owner after the expiry of the 65 business days.
If the paper owner objects to the application, the matter will be referred to the Land Registry’s dispute resolution regime.
However, if the paper owner requires the application to be dealt with under paragraph 5 of Schedule 6, the application will be rejected without further ado, unless the applicant is able to rely on one of the three conditions in paragraph 5 (and stated as such on his application form). The conditions are:
- It would be unconscionable because of an equity by estoppel for the paper owner to seek to dispossess the applicant and the circumstances are such that the applicant ought to be registered as the proprietor. Although this may seem straightforward on first reading, it is difficult to satisfy in practice. The applicant will need to demonstrate that (a) the paper owner encouraged or allowed the applicant to believe that they owned the land, and (b) this caused the applicant to act to their detriment to the knowledge of the paper owner, such that it would be unconscionable for the paper owner to deny the applicant the rights which he believed he had.
- The applicant is for some other reason entitled to be registered as the proprietor. Again, although this may appear to be a promising catch-all provision, the term ‘entitled’ has been interpreted rigidly. Examples of where this condition might apply are where the applicant is entitled to the land under the will or intestacy of the deceased proprietor, or where the applicant contracted to buy the land and paid the purchase price, but the legal estate was never transferred to them.
- The applicant has been in adverse possession of land adjacent to their own for at least 10 years under the mistaken but reasonable belief that they are the owner of it. An example of where this condition might apply is where the dividing walls or fences on an estate were erected in the wrong place. If the applicant has not stated in their Form ADV1 that they are relying on one of the three conditions in paragraph 5, then their application will be rejected by the Land Registry on receipt of the counter notice from the paper owner. Even if the applicant does rely on one of the conditions in its application, the road ahead is by no means smooth. The Land Registry may still reject the application if it is not persuaded by the statement of truth that the condition applies. If the Land Registry is convinced that the condition does apply, it will give the paper owner a further opportunity to object (essentially by disputing that the condition has been met). The matter will then be referred to the Land Registry’s dispute resolution regime.
A two year wait…
If an application is rejected as a result of a counter notice being given and none of the three conditions being met, the applicant will need to wait a further two years before resubmitting their application. During this time, the paper owner may evict the applicant. Only after that two-year period can the applicant reapply to the Land Registry, presuming he has been in adverse possession of the land throughout. The applicant will at that point be registered as the owner, provided the paper owner has taken no action to recover possession in the intervening period.
Accordingly, the paper owner has two years from the rejection of the application in which to take steps either to evict the applicant or to legitimise their occupation. Presumably any paper owner who responded to the application by serving a counter-notice will be minded to protect their interest in this way.
This serves as a warning to those seeking to acquire registered land by adverse possession. Such applications are far from straightforward, and can be struck-out by the paper owner by the mere ticking of a box, except in the most deserving of cases. By submitting an application for adverse possession where none of the conditions in paragraph 5 applies, the applicant effectively risks being evicted from the land by the paper owner. Depending on the circumstances, it may be worth simply continuing to occupy the land rather than alerting the paper owner to the occupation and potentially upsetting the status quo.
From the perspective of the paper owner, the concept of adverse possession highlights the importance of keeping the address for service on the register up to date to ensure any notice of an application is received and can be responded to. Further, in the event that an application is rejected, action should be taken promptly to evict the applicant within the two year period.
In the case of Thorpe v Frank  EWCA, the act of paving an area of land was held to constitute a sufficient degree of exclusive physical control as to amount to ‘possession’ for the purposes of the Limitation Act. This has arguably varied the test for adverse possession making the act of enclosing the land not a definite requirement. It was held that the nature and character of the land were important. It was also highlighted that the alleged possessor had been dealing with the land in question as the occupying owner might have been expected to deal with it and that no one else had dealt with it.
As mentioned above, if the registered owner files a counter notice, the applicant can only rely on one of three conditions in paragraph 5 of Schedule 6 of the Act. The recent case of Dowse v Bradford MBC  UKUT 202 (LC) provided more insight into the third condition (paragraph 5(4) of Schedule 6 of the Act):
- (a) the land to which the application relates is adjacent to land belonging to the applicant;
- (b) the exact line of the boundary between the two has not been determined under rules under section 60;
- (c) 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
- (d) the estate to which the application relates was registered more than one year prior to the date of the application.
The Appellants appealed an order of the First Tier Tribunal (Property Chamber) (the FTT) who directed the Chief Land Registrar to cancel their application. The Appellants were seeking adverse possession of part of the land adjacent to their residential home but owned by the Respondent (a local authority).
The FTT held that even if the Appellants established more than ten years adverse possession, they had not satisfied the conditions in paragraph 5(4) because the third condition only applies where there is a dispute about the position of a boundary and that they were required to prove that they reasonably believed that they had paper title to the land claimed.
At appeal, the Appellants argued, amongst other things, that it was wrong to hold that paragraph 5(4) only applied in a boundary dispute and that it required a reasonable belief in ownership of the ‘paper title’ (ie the condition refers to a belief that the land belongs to them and does not refer contain the words ‘paper title’). The Appellant’s position was that Condition A (adjacent land) and Condition B (boundary) were satisfied and so the only decision to be considered was whether they had satisfied Condition C (adverse possession for more than ten years and a reasonable belief in ownership) which they say they did.
The Judge noted it was not necessary for the Appellants to believe they had a paper title to the land as paragraph 5(4) consistently uses the language of ‘belonging’ rather than ‘paper title’ or ‘ownership.’ However, the appeal was dismissed. The Judge held that the Appellants had not met Condition A (adjacent land) because the whole (or substantially the whole) of the disputed land would have to be capable of being described as adjacent to the Appellant’s land. In this case, only a small fraction was. The Judge considered that it was unnecessary to consider the other grounds of appeal because, even if adverse possession and a reasonable belief in ownership were proven, the appeal could not succeed. This case shows that the third condition will only apply in limited circumstances.