Decided October 2024
The Land Registration Act 2002 was designed to give more certainty to purchasers of registered land, by abolishing certain overriding interests. But purchasers should still beware of historic rights, especially where there is any uncertainty as to boundaries.
Jonathan Gale succeeded at trial and at first appeal in arguing that a purchaser had postponed the historic rights of squatters by registering her property. However, the Court of Appeal overturned the decisions of the lower courts, holding that the general boundaries rule applied and that where a property was first registered before the 2002 Act came into force, adverse possession, even when historic, could not be undone by registration. A passage from Jourdan on Adverse possession, which was part of the reasoning at first instance, may need to be revised.
Background
Dee Narga was looking for a home in Leicestershire. She found a property called Brook Barn, situated in a secluded place part way up a hill outside the village of Thrussington. In the grounds, as the name of the property suggests, was a brook. The brook was situated at the bottom of a steep bank, which was overgrown. Ms Narga thought she could tidy it up and make a nice feature out of the bank and the brook. Attracted by the prospect of having the feature in her grounds, she bought the property in June 2020 and proceeded to cut down the undergrowth on the bank around the brook.
It was then that she met the occupants of the houses on the other side of the brook. They were neighbours in the sense that the grounds of their properties were adjacent, but the undergrowth was such that it was not easy to see those neighbouring properties on the other side of the brook, and the geography of the area was such that, from the front of Brook Barn to the front entrance of the houses, it was necessary to go down a lane and through a village.
The Claphams and Wrights claimed that Ms Narga was trespassing on their land, and went to the County Court to seek an injunction preventing her from accessing anything beyond the top of the bank that led to the brook.
From the general boundaries as marked on the land registry plan it looked as if Brook Barn included the brook, and some of the bank on the other side.
The Wrights produced a conveyance which included a plan (“for identification purposes only”) showing the boundary along the edge of the brook on the Wright’s side. They said that when they bought the property in the 1980s they had spoken to the former owner of Ms Narga’s property and theirs when they had been in common ownership, who had sold their property in the first place, had confirmed that he had intended to sell the Brook with the property. They said that, otherwise, they had been in adverse possession of the disputed bank, which they identified as a “strip”, and sought declarations to that effect.
Dee Narga did not believe them. She had bought Brook Barn because it contained a brook and had seen no evidence of any occupation of the bank in her inspections of the place.
County Court and High Court
The matter came to trial before HHJ Hedley. The Wrights and the Claphams called 10 witnesses – family, friends and previous owners. Ms Narga had no evidence from before she moved in. The previous owner of Brook Barn had not been resident there, but had used the property as an office, and rarely ventured into the garden.
I argued for Ms Narga that, even if adverse possession had been established, it did not override her registered ownership. That was the purpose behind the change of law in 2003, removing adverse possession from the list of “overriding interests”.
The trial lasted 4 days of evidence. The Wrights and the Claphams had been challenged by the previous owner of Brook Barn, but no determination of the boundary had been sought.
HHJ Hedley construed the conveyance such that the brook was part of Brook Barn. The Judge accepted the evidence of the Wrights and the Claphams, and found that they had had adverse possession for 12 years. Crucially, HHJ Hedley found that the period of adverse possession had expired before Brook Barn was first registered. HHJ Hedley found that, with respect to the Brook and the bank in question, Dee Narga was not to know, when she purchased Brook Barn in 2020, that the Wrights and Claphams had had adverse possession of the Strip for more than 12 years before the property was first registered (in 2003).
HHJ Hedley agreed with Ms Narga that the Wrights’ and the Claphams’ right deriving from adverse possession, which His Honour held, relying on a passage from Jourdan on Adverse possession, took the form of a trust under Section 75 of the Land Registration Act 1925, did not override the registered title of Dee Narga. That was because their occupation of the land was not obvious on reasonable inspection when the land was purchased by Ms Narga and then registered to her. That was in accordance with Paragraph 2 of Schedule 3 to the Land Registration Act 2002.
In holding that the rights which the Wrights and the Claphams had over the strip of land took the form of a trust, HHJ Hedley relied on the following passage from paragraph 2.48 of Jourdan on Adverse Possession:
Where a squatter claims that, before the title to the land in dispute was registered in the name of a person with the paper title, the squatter had already acquired title to it by adverse possession, his claim may not fall under Sch 12, para 18 of the 2002 Act. If title to the land was first registered before 13 October 2003, it seems likely that the Land Registration Act 1925 S.75 would have applied, so as to make the registered proprietor the trustee for the title for the squatter from the moment the title was registered. In that case, Sch 12, para 18 will apply. 21-49: However, if title is not registered until on or after 13 October 2003 then Sch 12 para 18 has no application …
The Wrights and Claphams appealed to the High Court, where Leech J also agreed. The Wrights and Claphams made a second appeal to the Court of Appeal.
The Wrights and Claphams appealed additionally, on alternative grounds that HHJ Hedley ought, in construing the conveyance, to have taken into account the previous owner’s intention, as stated to the Claimants long after the event, that, when he sold the land to their predecessor, he intended to include the brook. I think that would have been an ambitious extension of the exceptional rule in Ali v Lane [2006] EWCA 1532 (post conveyance conduct admissible in construction of a conveyance of land where probative of intention). Those grounds were stayed pending the appeal on the adverse possession point. Given the result in the Court of Appeal, it was not necessary for the appeal to be pursued on the construction grounds.
Court of Appeal
On adverse possession / registration, in the Court of Appeal, Newsom, Newey and Jackson LJJ held that, because of the General Boundaries Rule, the brook, despite the appearance of the Land Registry plan, was never included in the Property that was registered, so there was no question of overriding interests. The General Boundaries Rule is that a land registry plan is determinative of title, but cannot be relied upon to determine the physical extent of the land.
On Ms Narga’s behalf, I argued that the true nature of the dispute was not one of boundary determination, but, being an adverse possession dispute, was a question of title to a defined area – “the Strip”. It was argued that claims for adverse possession were, by their nature, not boundary, but property disputes. The mischief addressed by the Land Registration Act 2002 was the possibility of registered owners being troubled by stale adverse possession claims where an alleged squatter was not in occupation but claimed to have returned after an absence. Any new owner, who may not be able to gainsay the claimant’s account of events, would be vulnerable to concerted attempts by longstanding neighbours, to deprive them of their property. In this case, the claimants ought to have taken steps to register their ownership after challenge by the previous owner of Brook Barn. I said registered owners should be left in peace.
Newey LJ referred to the original attempt at introducing land registration in by the Land registration Act 1862. His Lordship outlined the mischief caused by making every boundary a determined boundary, quoting the Land Transfer Commission’s 1870 report outlining two mischiefs:
First, notices have to be served on adjoining owners and occupiers which may and sometimes do amount to an enormous number, and the service of which may involve great trouble and expense …This is the first mischief. The second is that people served with notices immediately begin to consider whether some injury is not about to be inflicted on them. In all cases of undefined boundary they find that such is the case, and a dispute is thus forced upon neighbours who only desire to remain at peace.”
The Court of Appeal saw no reason to disregard adverse possession claims from the exercise of determining where a boundary was.
… a title plan is not to be taken to show the boundaries accurately. If, therefore, neighbouring owners differ as to where a boundary lies, the answer is not to be found in the title plan but by reference to the other principles by which the extent of a person’s property is ascertained. The exercise may involve analysis of conveyances, transfers and other documentation, but I do not think there is any good reason for disregarding adverse possession claims. In my view, a title plan will not settle the exact location of a boundary regardless of whether it accords with the paper title or has moved through adverse possession.
46. I find it hard to see how the position could be otherwise. It would seem to make no sense for a title plan which avowedly portrays only a general boundary to be deemed to determine the precise extent to which land claimed by adverse possession is included in the title. Title plans do not pretend to be accurate, and according them significance in the way for which Mr Gale contended could engender just the sorts of mischief which the Land Transfer Commission identified in 1870 and which the general boundaries rule has since sought to avoid. Owners whose boundaries might, as a result of adverse possession, no longer fully accord with the conveyancing materials might need to be alive to the title plans used for their neighbours’ properties and, potentially, challenge them. To adapt what the Land Transfer Commission said, dispute might be forced on neighbours who had hitherto been at peace.
It was crucial that the Wrights and Claphams had been found to have obtained title before the property was first registered.
The other argument considered by the Court of Appeal was the effect of Section 75 of the Land Registration Act 1925. In this case, Brook Barn had been registered just before the coming into force of the Land Registration Act 2002. It had been held by both courts below that, in accordance with the passage in Jourdan on Adverse Possession, the claimants were beneficiaries under a trust created by Section 75 of that Act (indeed, that is how the case had been pleaded originally, prior to amendment).
The Court of Appeal agreed with obiter dicta in St Marylebone Property Co Ltd v Fairweather [1963] AC 510 to the effect that s75 did not have retrospective effect, where title was extinguished prior to registration.
Comment
What if the disputed land had been a strip running through the middle of the registered land? From the Court of Appeal’s decision on Section 75 of the 1925 Act that there would have been no trust of land formed on first registration because the provision did not apply retrospectively when 12 years adverse possession had already elapsed. It is submitted that, in that case, irrespective of s75, the first registration in 2003 would have been subject to an overriding interest under s70(1)(f) of the 1925 Act (rights acquired under the Limitation Act) but that on subsequent registration to Ms Narga in 2020, that interest, no longer an overriding interest under the 2002 Act, would have been postponed to that of Ms Narga, and the General Boundaries Rule would have had no application. Provided that the disposition was made for value in good faith, then, absent the uncertainty of registration at the boundaries, the registered owner would take free of historic adverse possession rights where a squatter was no longer in obvious occupation.
The application of the general Boundaries Rule can be a matter of fact and degree. At least one previous decision of the court of appeal (Parshal v Bryans [2013] EWCA Civ 240, overruled on other grounds) has rejected its application where the question is one of adverse possession which relies on possession of a defined area of land, with no question as to where the boundaries are, and Counsel in this case were not able to find a reported case where an adverse possession claim was decided based on the General Boundaries Rule. The Court of Appeal in this case held that there was no difference in principle when determining a boundary, between consideration of the conveyance, and rights subsequently derived outside of the document, such as estoppel and adverse possession.
Would the position have been different if the land had been first registered after the coming into force of the 2002 Act? It ought to make no difference when land was first registered. Notwithstanding the passage cited in Jourdan, Section 75 of the Land Registration Act 1925 appears to have been a red herring.
The finding of fact at trial, that 12 years’ adverse possession had already elapsed prior to registration, and the application of the general boundaries rule were crucial to the result in this case.
The fact that the case was appealed twice was unfortunate for all the parties, and caused the costs of this dispute, over what was perceived to be a relatively small area of land, to escalate such that it drew the attention of the national press. It was said by the Court of Appeal that if Ms Narga had spoken to the claimants before buying the property, she would not have bought it and the dispute would never have happened.
The back of Brook Barn was so overgrown that it would have been difficult for a potential purchaser to see that there might have been ownership of the bank by the neighbouring houses, and the geography in this case was such that many people would not have considered going through the village and speaking to strangers, with the potential for inviting dispute.
Before trial, Dee Narga could not have known whether the Wrights and the Claphams had really gained title by adverse possession, and, if so, whether they had done so before or after the property was first registered. After the trial, the registration point was determined in her favour, leading to two appeals by the Claimants.
Conclusion
While registration of land is determinative of title, it does not guarantee anything about the boundaries, or the extent of the property owned. No owner of land is completely safe from a claim to adverse possession.
When buying a property, if there is any doubt about the boundary, and if a feature is important to the purchaser, it would be advisable to communicate with neighbouring properties to try to ensure that the feature is undisputedly part of the property purchased.
It is common for neighbour disputes over boundaries to attract public criticism and even ridicule, but it is easy to understate the importance of small areas of land to the parties themselves. It is part of the function of our judicial system to determine such disputes, even if those outside may be indifferent to the outcome.
Finally, the General Boundaries Rule, well-known to property lawyers, ought to be made more widely known to purchasers of land who may erroneously rely on land registry plans and find themselves in a dispute before they have had a chance to take legal advice.
Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose.
This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
