Adverse possession: applications by squatters to be registered as proprietor

The Supreme Court has used “pure grammar” to clarify the law relating to adverse possession. Nick McKnight considers the ruling.

In a leapfrog appeal from the Upper Tribunal (Lands Chamber) the Supreme Court decided the question of how quickly an application, to be registered as the proprietor of a registered estate in land by way of adverse possession, needs to be made by a squatter, following their realisation that they do not in fact own the land which they have been possessing.

There are many intricate rules that apply to the doctrine of adverse possession, and this decision deals only with one. However, it is one which is commonly met in practice.

Relevant legislation

The decision applies to adverse possession claims as to registered land. The ability of a squatter to acquire, by way of adverse possession, title to registered land was greatly reduced, in comparison to unregistered land, by the Land Registration Act 2002. 

Nonetheless, there is a relatively common scenario (the “Boundary Condition” – to adopt the Supreme Court’s terminology) where such an application can still be successful. This is covered by Paragraph 5 of Schedule 6 of the above-mentioned Act which provides, at subsection (4), that an application may succeed if:

1. the land to which the application relates is adjacent to land belonging to the applicant;
2. the exact line of the boundary… has not been determined
3. for at least 10 years of the period of adverse possession ending on the date of the application, the applicant… reasonably believed that the land to which the application relates belonged to him.

This provision covers the position where land is purchased with a fence already in place, the purchaser reasonably believes that this fence constitutes the legal boundary but, in fact, it encloses land which actually forms part of a neighbouring title.  The purchaser (termed “squatter” for the purposes of this article) only becomes aware of the true position at a later date.

The issue in question was the meaning of “ending on the date of the application”. If the squatter made such an application for registration this would only be because it realised that the land in question formed part of a neighbouring title (the squatter’s reasonable belief would have ended for it to draft the application). 

The question was partly how literally this provision (“ending on the date of the application”) should be applied. Did the application need to be submitted the day following the squatter’s realisation that it did not own the land, or was a period of grace to be implied. Alternatively, was there some other interpretation which allowed the application to be made at any time after 10 years’ adverse possession, in the requisite circumstances, had passed – regardless of how much time had elapsed since the squatter realised the true position as to ownership. 

The initial decision

At first instance Tribunal Judge Bastin took the latter position, deciding that it did not matter how long passed between the squatters’ realisation, and the date on which the application was made. He noted that the literal interpretation would make the provision “virtually useless”, as a squatter is very unlikely to be able to make such an application the day after discovering that their reasonably-held belief as to ownership was incorrect. 

The Judge also noted that this would leave the squatter with no prospect of seeking to resolve matters amicably with their neighbour, and force them to plunge straight into proceedings on becoming aware of the issue.   

The Upper Tribunal disagreed.  Its primary reasoning was that a Court of Appeal decision (Zarb -v- Parry [2011]) was binding on the Tribunal, and that it provided for the squatter’s 10 years of reasonable belief to be “the last 10 years of his possession prior to the application for registration”. 

It was accepted that Zarb allowed a period of grace (subsequently referenced as a de minimis period in the Supreme Court) between realisation and submission of the application, though the squatter still needed to act “promptly”.

As Judge Bastin at first instance had found that there had been an inexplicable delay of nearly two years between the ending of the squatters’ reasonable belief of ownership, and the making of their application, the success of the appeal resulted in a new direction to the Chief Land Registrar to cancel the squatters’ application. 

Supreme Court appeal

Permission was given for an appeal directly to the Supreme Court (such that the case law at the Court of Appeal could be overruled if necessary).  The Supreme Court approached the question as “…a matter of pure grammar…”, commenting that 5(4)(c) could be read in two ways

Construction A

It defined the scenario where the squatter’s application needed to be made immediately on becoming “disabused” of its belief as to ownership, as “construction A”. A great deal of the owner’s argument that construction A was to be preferred was based on “the flexibility of the omnipresent de minimis principle, which could… give [the squatter] up to a month or two after being disabused of his reasonable belief…to make his application…”.

The maxim De minimis non curat lex is normally translated as “the law is not concerned with trifles”, and generally means that negligible matters can be disregarded. Effectively the owner was accepting that Parliament could not have meant that the application needed to be made by the squatter instantly on becoming aware of the issue, but that two months or so to make the application was inconsequential.

Construction B

The more lenient approach, which would allow the application to be made at any time after 10 years’ adverse possession in the requisite circumstances, regardless of how long had passed since the squatter’s realisation, was named “construction B”. 

This interpretation of 5(4)(c) can be illustrated by reading the clause as “for at least ten years of the period of adverse possession, this period of adverse possession leading up to the date of the application, the applicant…reasonably believed…”. 

It must be stressed that the Court found that this interpretation of Clause 5(4)(c) could be reached naturally, without the addition of further wording (the underlined wording has been added by the writer to assist in explanation).

Supreme Court’s decision

The Supreme Court chose construction B, thereby reinstating the decision made by Judge Bastin at first instance. 

It commented that in the end the debate came down to whether “…construction A could be saved… by the vigorous application of the de minimis principle”.  As set out above, the argument put forward by the owner was that Parliament intended an additional month or two (being a negligible amount of time) for the application to be made once the squatter was disabused of their reasonable belief.

The Supreme Court found, amongst other things, that this argument suffered from “insuperable obstacles”, such a period being substantial rather than de minimis, and there being no precedent for the de minimis principle ever extending a statutory time limit.

The difficulties with construction A having been aired, the Court reconsidered the wording of 5(4)(c),and decided that it was not a reference to the squatter’s reasonable belief as to ownership “ending” at the date of the application, but the period of adverse possession of which the ten years’ reasonable belief formed part “ending” on (being read as “leading up to” – the writer’s words, rather than those of the Court) the date of the application.

In conclusion

Due to general boundaries being “…the norm in registered title”, and “boundaries” therefore being “matters where adverse possession has the most useful continuing role to play”, clarity has certainly been given where it was needed. It will not be necessary for the Tribunal to seek to estimate whether there has been undue delay between the ending of the squatter’s reasonable belief, and the submitting of the application, or what the length of a permissible delay might have been.

On becoming aware that they do not own the land in question a squatter does not need to hurry to submit an application (it being noted that such an application can take very much longer than two months to compile) and, indeed, does not need to commence any action at all – rather it could wait to see what action the owner proposes to take.

It was noted that the squatter might encounter difficulties in proving its application (reasonable belief of ownership etc.) if it were to wait too long before submitting its application, and so “…construction B would contain a built-in incentive [upon the squatter] to get the register aligned with the position on the ground while the evidence is still fresh…”.

Nonetheless, the effect of the decision will be more “squatters” empowered to submit applications in these circumstances, long after becoming aware that they do not, in fact, own the land in question.

Nicholas McKnight is a Legal Director at Birketts.