[2024] UKUT 14 (LC)

In summary, the findings, reasoning and conclusions of the Judge in the Decision were as follows.

After summarising the background facts, the Judge identified the cases of the parties at Paragraphs 7 and 8. The cases of the parties can be summarised in the following terms:

In Paragraphs 9-11 the Judge set out the legal framework. The Judge then identified the issues which he had to resolve, and where the burden lay, at Paragraphs 12 and 13:

“12.

The headline issues are as follows:

12.1

Can the Ridleys establish adverse possession of the Disputed Land ‘for the period of ten years ending on the date of the application’ being 20 December 2019 as required by paragraph 1(1) Schedule 6 (see paragraph 9.1 above)? Subsidiary issues are (a) can the Ridleys show factual possession of all of the Disputed Land throughout the relevant 10 year period, (b) did they hold and manifest the requisite intention to possess, and (c) did the Ridleys acknowledge Mr Brown’s title thereby re-starting the running of time?

12.2

Can the Ridleys establish that they reasonably believed that the Disputed Land belonged to them for the relevant period of 10 years as required by paragraph 5(4)(c) Schedule 6 (see paragraph 10 above)? Subsidiary issues are (a) what is the test for reasonable belief, (b) do the Ridleys satisfy the test or did any reasonable belief they might have had end by February 2018 when they submitted their planning application, or, alternatively, October 2019 when Mr Brown pointed out the trespass?

13.

Since it is the Ridleys who have brought this application, the burden of proof is on them to the civil standard (being the balance of probabilities).”

At Paragraphs 14-36 the Judge reviewed the evidence, both oral and documentary (including the witness statements which were not challenged), in considerable detail.

At Paragraphs 37-48 the Judge dealt with the question of whether the Respondents had proved that they had been in adverse possession of the Disputed Land for the required period of ten years ending on the Application Date. At Paragraph 48 the Judge expressed himself as satisfied that the Respondents had established the two required elements of adverse possession; namely, and throughout the required period, (i) the appropriate degree of exclusive physical control of the Disputed Land and (ii) the required and clearly manifested intention to possess the Disputed Land to the exclusion of all others. In reaching these conclusions the Judge rejected the Appellant’s argument that the Respondents had, by their solicitors’ letter dated 11^th November 2019, made a written acknowledgment of the Appellant’s title to the Disputed Land, such as to start time running again for adverse possession purposes.

This left the question of whether the Respondents could demonstrate their reasonable belief in their ownership of the Disputed Land for the period of ten years required by paragraph 5(4)(c). This is turn engaged the question of statutory construction identified above. The Appellant argued that the period of ten years, as referred to in paragraph 5(4)(c), meant the period of ten years ending on the Application Date or, on the basis that one could disregard a short gap between the ending of the reasonable belief and the making of the Application, the period of ten years ending shortly before the Application Date. The Respondents argued that they could rely on any period of ten years within the period of their adverse possession of the Disputed Land, with the consequence that it did not matter if their reasonable belief ended, as the Appellant contended, either in February 2018 or in October 2019.

In support of the Appellant’s case, counsel for the Appellant relied upon two decisions of the Court of Appeal which, so he contended, supported the Appellant’s construction of the Reasonable Belief Condition. The relevant decisions are Zarb v Parry [2011] EWCA Civ 1306 [2012] 1 WLR 1240 (“Zarb”) and IAM Group plc v Chowdery [2012] EWCA Civ 505 [2012] 2 P.&C.R. 13 (“IAM”). I will need to consider both decisions in detail later in this decision, but for present purposes it is sufficient simply to identify the decisions.

The Respondents also relied upon Zarb for the purposes of a fallback argument which they deployed. The Respondents argued that if, contrary to their primary case, the reasonable belief had to be maintained up to the Application Date, there was a grace period between the date when the reasonable belief came to an end and the Application Date, provided that the Respondents acted promptly in making the Application following their discovery that there was an issue over the title to the Disputed Land. The Respondents’ case was that they had only become aware that there was an issue in October 2019, and had thereafter acted promptly in making the Application.

So far as the issue of the construction of paragraph 5(4)(c) (the Reasonable Belief Condition) was concerned, the Judge decided this issue in favour of the Respondents. The essential reasoning of the Judge on this issue can be found in Paragraphs 52 and 53, which it is easiest to quote directly:

“52.

The wording of paragraph 5(4)(c) is ambiguous as is evidenced by the debate that it has engendered and there is no clear authority on its construction. In both Zarb v Parry and IAM Group plc v Chowdrey it was found that the reasonable belief continued until the date of the proceedings and construction was not argued. I am, therefore, not bound by either of them. What is clear to me is that Parliament cannot have intended that a squatter makes an application on the day his belief ceases to be reasonable. Such a construction would render the provision virtually useless and, indeed, Mr Adams acknowledges this by conceding that any de minimis period should be disregarded.

53.

I take the view that paragraph 5(4)(c) should be construed as meaning any 10 year period and not one that must end on or close to the date of an application to the Court or the Land Registry. This was, of course, the view taken in Crook v Zurich Assurance Ltd (in which the issue was argued at some length) and other Tribunal decisions such as Davies v John Wood Property plc, Port of London Authority v Mendoza and McLeod v Brown & Jones. Whilst I accept that these decisions are not binding on me, I do find them persuasive. Further, the any 10 years construction can be read from paragraph 5(4)(c) itself and, perhaps incidentally, is consistent with the wording of paragraph 1(1) where ‘the period of ten years ending on the date of the application’ also appears. The de minimis argument offers a solution that is not needed and throws up all the unsatisfactory and unwelcome difficulties and uncertainties of working out whether an application is made promptly in any particular case; something which this Tribunal sees this in practice and the Law Commission acknowledges in proposing a one year window for applications to be made. I also note that Dr Charles Harpum, who played a major role in the drafting of the Land Registration Act 2002, says that paragraph 5(4) was intended to allow an adverse possessor to rely on the facts “on the ground” until a dispute was inevitable since “no sane person wishes to initiate a boundary dispute”. It is, after all, the arising of a land dispute between neighbours that should prompt action by an adverse possessor, not a change in the adverse possessor’s belief .”

Although this is not entirely clear, I take the Judge to have made a finding, in Paragraph 54, that the period of the Respondents’ reasonable belief could be traced back to, and had existed since their purchase of Valley View in 2004. Although this is also not entirely clear, I also take the Judge, in his analysis of whether the Respondents had demonstrated the required period of adverse possession, to have found that the Respondents’ period of adverse possession of the Disputed Land could be traced back to, and had existed since their purchase of Valley View in 2004.

The Judge then continued to consider what the position would have been if he had been wrong in his construction of the Reasonable Belief Condition, and the period of reasonable belief had to exist for the period of ten years ending on the Application Date. This required the Judge to make a finding as to when the reasonable belief of the Respondents in their ownership of the Disputed Land came to an end. For this purpose the Judge returned to the evidence, at Paragraphs 56-61. The ultimate finding of the Judge on this question was set out in Paragraph 61, in the following terms:

“61.

On the above analysis, it seems to me more likely than not that by February 2018 the Ridleys knew of the discrepancy and so did not have a subjective belief that they were the registered proprietors of the Disputed Land. Similarly, their objective belief cannot have been reasonable. If the Ridleys had to make their application to the Land Registry promptly or within a reasonable period of time, then I find that they did not as it took them almost two years to do so with no explanation for the delay.”

As can be seen from Paragraph 61, the Judge accepted that if, contrary to his construction of paragraph 5(4)(c), the period of reasonable belief had to endure for the period of ten years ending on the Application Date then the Respondents had a period of grace, following the period of their reasonable belief coming to an end, within which to make the Application, provided that they acted promptly. Given his finding that the reasonable belief of the Respondents came to an end in February 2018, and given the absence of explanation for the delay of almost two years thereafter in the making of the Application, the Judge decided that the Respondents had not acted promptly in making the Application. As such, and if the Judge had accepted the Appellant’s case on the construction of the Reasonable Belief Condition, the Respondents would not have been able to satisfy the Reasonable Belief Condition.

Finally, the Judge considered what the position would have been if (i) contrary to his construction of the Reasonable Belief Condition, the period of reasonable belief had to endure for the period of ten years ending on the Application Date and (ii) contrary to his findings on the evidence, he had found that the Respondents’ reasonable belief in their ownership of the Disputed Land only came to an end in October 2019. On that hypothesis the Judge decided that the Respondents would have made the Application promptly, and thus would have satisfied the Reasonable Belief Condition.

These final parts of the Decision were, as I have said, considering hypothetical situations. On the Judge’s construction of the Reasonable Belief Condition, all that the Respondents had to establish was that the period of their reasonable belief endured for any period of ten years during the period of their adverse possession of the Disputed Land. On the Judge’s findings this was established. Accordingly, the Judge determined the Application in favour of the Respondents and directed the Chief Land Registrar to give effect to the Application and register the Respondents as the new proprietors of the Disputed Land.