UK Upper Tribunal confirms 'period of reasonable belief' requirement for adverse possession

A recent Upper Tribunal decision in Brown v Ridley overturned a First-Tier Tribunal ruling which had strayed from binding case law.

The Upper Tribunal examined the First-Tier Tribunal's interpretation of whether paragraph f, schedule six of the Land Registry Act 2002 requires an applicant to a hold reasonable belief that the land belongs to them for a period of 10 years ending on the date of the application or whether this could be any period of 10 years within the period of adverse possession.

The judgment confirms that the First-Tier Tribunal made a material error in law by failing to follow Zarb v Parry and that the 10-year period ends on the date of the applicant's application.

Dispute background

The Ridleys and Mr Brown owned adjoining pieces of land but part of Mr Brown's land was also continuously occupied by the Ridleys – who constructed a dwelling on the disputed land. When Mr Brown was notified of the encroachment, the Ridleys made their application for adverse possession which, when contested by Mr Brown, was referred to the First-Tier Tribunal.

Adverse possession is a process by which a party who is not the legal owner of the land can acquire title to it by being in exclusive possession of the land for a period of time (which differs depending if the land is registered or unregistered).

First-Tier Tribunal in favour of applicant

Mr Brown's argument was that the Ridleys had become aware that they were not the proprietors of the land prior to making the application and, therefore, did not satisfy the condition prescribed by the Land Registry Act that "for at least ten years of the period of adverse possession ending on the date of application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him".

The judge's interpretation centred around the "reasonable belief" being for a continuous 10-year period of use and occupation, not when this period should end. In deciding to rule in favour of the Ridleys, the judge referred to several "persuasive" First-Tier Tribunal judgments but ignored a binding case, Zarb v Parry, which was controversial and formed the basis of Mr Brown's appeal.

Binding case law ignored

Zarb was another adverse possession case where the Court of Appeal had constructed paragraph 5(4)(c) of the Land Registry Act as the period of 10 years, during which the reasonable belief had to be shown, as the last 10 years prior to the application for registration.

The crux of Brown v Ridley was whether the date of the "reasonable belief condition" formed part of the rationale for the decision in Zarb and was, therefore, binding authority. The Upper Tribunal concluded that it was and acknowledged that the First-tier Tribunal made a material error of law in ignoring the binding nature of this case law.

10-year period ends on application date

The judge hypothesised that, if going by the theory in Zarb, an individual will make an application to register as owner of land after the point when they realise that they do not have the registered title to the relevant land. From that point of realisation, the applicant would find it challenging to prove that they still have reasonable belief as this would mean that the reasonable belief must exist on the day when the application is made. Therefore, this judgment is inconsistent with the way in which schedule 6 of the Land Registry Act intended to support individuals to claiming adverse possession.

Osborne Clarke comment

On the surface, this case simply confirms an existing Court of Appeal authority. However, interestingly, the Upper Tribunal commented that it considered Zarb to be wrongly decided on this point but that it was bound by it. They considered that any continuous 10-year period of reasonable belief during the time the land was adversely possessed would be sufficient.

However a challenge to Court of Appeal authority must be brought to the Supreme Court. Time will tell as to whether an applicant has the financial motivation to attempt to overturn Zarb in the Supreme Court and potentially provide a revised test for adverse possession.

In the meantime, the current law remains a challenge to those wishing to claim adverse possession, and those who will, must do so "promptly" and prove that they had reasonable belief that they had ownership up until the date of application.

Elleze Francis, a Solicitor Apprentice with Osborne Clarke, contributed to this Insight.