Adverse Possession: 10 years and trying to keep the faith

What is meant by ‘adverse possession’?

Adverse possession is a legal principle by which a person who is not the legal owner of a piece of land can acquire ownership from the legal owner by using the land without the owner’s permission for a specific period of time.

There are various different grounds one can rely upon when claiming adverse possession. Different conditions apply depending upon which ground you are relying upon.

The 10 year and “reasonable belief” ground

One of the grounds for claiming adverse possession is that you have occupied the land belonging to someone else for at least 10 years in the mistaken but reasonable belief that you owned that land.

Schedule 6 of the Land Registration Act 2002 states that as well as holding this belief for 10 years, that belief must continue until the date that you make the application for adverse possession.

The anomaly/mind boggle

And this is where we come up against an anomaly that the courts are struggling to resolve.

The anomaly here is that the Land Registration Act requires that you must believe that you are the owner of the land not only for a period of 10 years but also that you must keep believing you are the owner right up until the date you make your application for adverse possession.

But this seems to be a mind boggling impossibility. Why?

You make an application for adverse possession because you want to become the owner of the land that you have used for 10 years. You have realised at some point that you are not the owner and you want to make sure that you claim the benefit of your 10 years of use of the land by applying to become the registered owner.

But this is where the boggle begins.

If you are making the application knowing that you are not the owner, you are not, in the loose words of the Land Registration Act, holding a belief that you are the owner right up until the date you make your application. At some point before making your application, you have realised that you are not the owner of the land. And of course realising that you are not the owner is why you are making the application in the first place!

So how on earth can one ever succeed on this 10 year “reasonable belief” ground?

Brown v Ridley case

The recent case of Brown v Ridley saw the Upper Tribunal consider this 10 year rule and how it should be interpreted.

The applicants in this case had believed that the land belonged to them from 2004 until 2018. In 2019, they made an application for adverse possession.

The Tribunal held that despite the 14 years of belief that they owned the land (2004-2018), the realisation that they were not the owners of the land prior to making the application for adverse possession in 2019 meant that the application could not succeed on this ground.

The Tribunal re-stated that point that the applicant’s belief must continue right until the moment an application for adverse possession is made.

Consequences of the judgement in Brown v Ridley

For the reasons outlined above, this anomaly has caused some judicial angst.

Even the Tribunal judge in Brown v Ridley made it clear that, in his view, the required period of ten years ought to be any period of ten years, rather than a period of ten years ending on the date of the application which would appear to require an act of wizardry to be possible.  The Tribunal was however bound by an earlier Court of Appeal decision so had no choice but to dismiss the application.

This judgement has of course caused debate in the legal domain and an appeal has been allowed which will be taken straight to the Supreme Court for a decision. It is hoped that the Supreme Court will provide clarity on this 10 year rule.

If you are considering a claim for adverse possession, have queries as to legal ownership of property, or concerns as to your property boundaries, please contact Jo Lingard or Andrew Turner at 01242 574 244.