Erica Williams
Posted on 22 Feb 2021

Adverse Possession & the boundary exception

Adverse Possession & the boundary exception

When acquiring land by adverse possession, there are two different regimes that could apply. One relates to unregistered titles and registered titles, where there is reliance on 12 years possession before 13 October 2003. The other relates to registered titles and is found under Schedule 6 Land Registration Act 2002 ("LRA 2002"). This latter regime was considered in the recent Upper Tribunal decision of Dowse v Bradford Metropolitan District Council [2020] ("Dowse").

LRA 2002 regime

Schedule 6 LRA 2002 came into force on 13 October 2003.  This statutory regime arguably made it harder for a claim of adverse possession to succeed, with the aim of giving registered owners of land greater security of title over squatters. To satisfy the test under the LRA 2002, the applicant has to prove they have adversely possessed the land for 10 years (2 years less than under the common law scheme). In short, if after a further 2 years the registered owner of the land does not respond to the application or does not evict the applicant from the land, then the applicant is entitled to be registered as the proprietor of that land.

If the registered owner of the land serves a counter notice when an application has been made, the applicant's claim will fail, unless they can satisfy one of the three exceptions set out in section 5 Schedule 6 LRA 2002.

The Dowse case has provided some clarity on the extent of the application of the third exception. This exception, at s5(4) is where the land subject to the application is:

  • adjacent to land belonging to the applicant; and
  • the exact line of the boundary has not been determined.

The applicant must also be able to establish that they reasonably believed that the land they had possessed for the 10 year period, belonged to them. 

The Dowse case

Mr & Mrs Dowse's garden backed onto approximately 2 acres of open land, of which Mr & Mrs Dowse ("D") claimed to have had possession since 1974. The boundary between the garden and the open land had not been determined.

In 2001, D had previously applied under the old regime of adverse possession to have the land registered, but this application was rejected, as it was deemed not to have been in their exclusive occupation.

D's application to the First Tier Tribunal for adverse possession was rejected on the basis that the third exception only related to disputes about the correct position of a boundary and that they could not prove they reasonably believed the land belonged to them.

Appeal

In the appeal, D argued that on a literal interpretation of the third exception, the land they were claiming adverse possession over was adjacent to their land and the boundary had not been determined. They also still contended that they reasonably believed the land had belonged to them so they satisfied the exception.

However, the Upper Land Tribunal rejected this literal interpretation. It held that the exception only applies to land on the general boundary between the parcels of land in question and the third exception is to be construed narrowly. It was noted that not all of the area of 2 acres was adjacent to D's land and it did not fall within the general boundary. Therefore, the appeal failed.

Conclusion

This decision has clarified that the third exception is intended to rectify the issue of when a physical boundary on the ground does not accord with the legal boundary as registered and that it is limited in scope. Its application is therefore in relation boundary disputes and should not be construed more widely.