[2024] UKUT 14 (LC)

It is convenient at this point to identify the relevant provisions of the 2002 Act with which the appeal and cross appeal are concerned.

The 2002 Act introduced a new legal scheme for acquiring title to registered land by adverse possession. Section 96 of the 2002 Act disapplies the provisions of the Limitation Act 1980 which previously governed claims to title to registered estates in land on the basis of adverse possession. Section 97 then introduces Schedule 6, which contains the new legal scheme.

I will return to the original purposes behind the new legal scheme later in this decision, but it is fair to say that the new scheme was intended substantially to restrict the circumstances in which a person would be able to obtain title to registered land, on the basis of adverse possession, in the face of objection from the registered proprietor.

The new scheme is, as I have said, set out in Schedule 6. The starting point is paragraph 1 of Schedule 6 (“paragraph 1”), which provides as follows:

“(1)

A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application.

(2)

A person may also apply to the registrar to be registered as the proprietor of a registered estate in land if—

(a)

he has in the period of six months ending on the date of the application ceased to be in adverse possession of the estate because of eviction by the registered proprietor, or a person claiming under the registered proprietor,

(b)

on the day before his eviction he was entitled to make an application under sub-paragraph (1), and

(c)

the eviction was not pursuant to a judgment for possession.

(3)

However, a person may not make an application under this paragraph if—

(a)

he is a defendant in proceedings which involve asserting a right to possession of the land, or

(b)

judgment for possession of the land has been given against him in the last two years.

(4)

For the purposes of sub-paragraph (1), the estate need not have been registered throughout the period of adverse possession.”

It will be noted that paragraph 1 does not alter the concept of adverse possession. What paragraph 1 does is to permit an application to be made, for registration as the proprietor of a registered estate in land, on the basis of a period of adverse possession of ten years ending on the date of the application. In order to determine whether there has been ten years of adverse possession in any particular case, it is still necessary to have resort to the Limitation Act 1980 and to the common law (case law), in order to determine whether the requirements of adverse possession have been met. This is provided for by paragraph 11(1) of Schedule 6. Paragraph 11 is in the following terms:

“(1)

A person is in adverse possession of an estate in land for the purposes of this Schedule if, but for section 96, a period of limitation under section 15 of the Limitation Act 1980 (c. 58) would run in his favour in relation to the estate.

(2)

A person is also to be regarded for those purposes as having been in adverse possession of an estate in land—

(a)

where he is the successor in title to an estate in the land, during any period of adverse possession by a predecessor in title to that estate, or

(b)

during any period of adverse possession by another person which comes between, and is continuous with, periods of adverse possession of his own.

(3)

In determining whether for the purposes of this paragraph a period of limitation would run under section 15 of the Limitation Act 1980, there are to be disregarded—

(a)

the commencement of any legal proceedings, and

(b)

paragraph 6 of Schedule 1 to that Act.”

Paragraph 2 of Schedule 6 provides for the registrar to give notice of the application made under paragraph 1 to the proprietor of the estate in land to which the application relates and various other parties. Paragraph 3 provides that a person given notice of the application may require that the application be dealt with under paragraph 5 of Schedule 6 (“paragraph 5”). If such a requirement is not made, the applicant is entitled to be registered as the new proprietor of the relevant estate in land.

It follows that an applicant only has an unqualified right to be registered where there is no requirement that the application be dealt with under paragraph 5. Where, as in the present case, such a requirement is made, the right of registration is subject to the qualifying conditions in paragraph 5. Paragraph 5(1) provides as follows:

“(1)

If an application under paragraph 1 is required to be dealt with under this paragraph, the applicant is only entitled to be registered as the new proprietor of the estate if any of the following conditions is met.”

Where paragraph 5 applies, the applicant has to meet any one of three conditions, in order to be entitled to registration as proprietor of the relevant estate in land. The three conditions are set out, respectively, in sub-paragraphs (2), (3) and (4). These sub-paragraphs are in the following terms, with sub-paragraph (5) included for completeness:

“(2)

The first condition is that—

(a)

it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and

(b)

the circumstances are such that the applicant ought to be registered as the proprietor.

(3)

The second condition is that the applicant is for some other reason entitled to be registered as the proprietor of the estate.

(4)

The third condition is that—

(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.

(5)

In relation to an application under paragraph 1(2), this paragraph has effect as if the reference in sub-paragraph (4)(c) to the date of the application were to the day before the date of the applicant’s eviction.”

In the present case the Respondents’ case was that they were able to satisfy the third condition, in paragraph 5(4). It was common ground between the parties, before the Judge, that the conditions, or more accurately sub-conditions in sub-paragraphs (a), (b) and (d) were met. The issue was whether the Respondents could meet the sub-condition in sub-paragraph (c), by reason of the dispute, which I have identified above, over the identification of the period of ten years during which the reasonable belief in ownership must exist. Where it is convenient to do so, and as an alternative to making reference to paragraph 5(4)(c), I will use the shorthand expression “the Reasonable Belief Condition” to refer to the sub-condition in paragraph 5(4)(c).

The above is very far from a comprehensive description of the legal scheme for acquiring title to registered land by adverse possession introduced by the 2002 Act. It is intended only to explain, in outline, the legislative background to the Application and the appeal.