Till death us do part? Not so for adverse possession claims! Nazir v Begum [2025] EWCA Civ 587

In this edition of Lay of the Land, Pupil Barrister Charles Towl reviews the recent Court of Appeal decision of Nazir v Begum [2025] EWCA Civ 587 in which the court held that land held on statutory trust by a deceased’s executors could be the subject of an adverse possession claim.

1. Neighbour disputes are renowned as being acrimonious, hard-fought affairs which parties are often willing to pursue to the bitter (usually financial) end. A common argument run in such cases is that one party has acquired the land in question by way of adverse possession. However, what happens where the bitter end is, in fact, the death of one of the neighbours?
2. Where land is part of a deceased’s estate – and held on a statutory trust under the Administration of Estates Act 1925 – does that mean it is “subject to a trust” within the meaning of the Land Registration Act 2002 so as to prevent a claim for adverse possession? This was the question considered by the Court of Appeal in the recent decision of Nazir v Begum [2025] EWCA Civ 587. The Court held that the land was not “subject to a trust” and, so, could be acquired by adverse possession. In this month’s edition of Lay of the Land, we will give an overview of the decision and explore the Court’s reasoning.

Background

3. The dispute concerned a strip of land between the parties’ neighbouring properties located in Bradford (“the disputed land”). The disputed land was acquired by the Appellants’ father, Mr Nazir (“the deceased”), who was registered as the owner of the freehold title in 1980. The deceased died intestate in 2010. The Appellants took out Letters of Administration in 2019 and became the registered proprietors of the disputed land in April 2022. In August 2022, the Appellants executed a trust declaring that they held the disputed land on trust for themselves in equal shares.
4. In February 2022, the Appellants issued a claim seeking possession of the disputed land. The Respondent defended that claim on the basis that she, and her predecessor in title who had purchased the neighbouring property in 1998, had acquired the disputed land, having been in adverse possession for more than 10 years.
5. The argument run on appeal was not made at first instance. Rather, the Appellants had sought to argue that the Respondent could not be in adverse possession of the disputed land as a result of the trust executed in August 2022. HHJ Walsh rejected this argument and concluded that the Respondent had acquired title through adverse possession.
6. On appeal to the High Court, the Appellants were permitted to raise the new argument that Paragraph 12 of Schedule 6 to the Land Registration Act 2002 (“Paragraph 12”) prevented the Respondent’s adverse possession because the disputed land was “subject to a trust” as a result of Section 33 of the Administration of Estates Act 1925 (“Section 33”). Freedman J dismissed this argument on the following grounds:
   1. First, that a statutory trust imposed by Section 33 is not a trust in the conventional sense. Rather, it provided a means by which administrators are subject to fiduciary duties, but whilst holding the entirety of the estate without distinction between legal and equitable title. In other statutes, where Parliament intended for the phrase “trustees” to include personal representatives, it had expressly provided for an extended definition of trustee. This was not the case in the 2002 Act. Indeed, the wording of Paragraph 12 appeared to envisage a trust with distinct beneficiaries (at paragraphs 25 to 27).
   2. Second, that, even if the disputed land was held on trust, each of the beneficiaries to that trust had interests in possession such that the exception within Paragraph 12 applied. Freedman J held that the Appellants had the burden of proof on this issue and were unable to discharge that burden as no evidence had been called on that issue at trial (at paragraph 28).

7. The Appellants appealed the High Court’s decision to the Court of Appeal. The Court of Appeal’s decision focused on the first limb of Freedman J’s decision (at paragraph 32).

The Appellant’s Argument

8. Before turning to the Court of Appeal’s decision, it is worth briefly setting out the Appellant’s argument. Essentially, the Appellants argued that, as the disputed land formed part of the deceased’s estate, the Appellants held it in trust pursuant to Section 33, which states that:

1. On the death of a person intestate as to any real or personal estate, that estate shall be held in trust by his personal representatives with the power to sell it.”

9. It followed that the disputed land was “subject to a trust” for the purposes of Paragraph 12:

Trusts:

12. A person is not to be regarded as being in adverse possession of an estate for the purposes of this Schedule at any time when the estate is subject to a trust, unless the interest of each of the beneficiaries in the estate is an interest in possession.”

10. Therefore, the Appellants argued, the Respondent could not have been in adverse possession of the disputed land where the disputed land was subject to a statutory trust imposed by Section 33.

Decision

11. Zacaroli LJ delivered the decision of the Court, summarising the issue before the Court as essentially being one of statutory interpretation: “does “subject to a trust” in Paragraph 12 include a trust created by Section 33?” (at paragraph 33).

The Nature of the trust created by Section 33

12. The Court first considered the nature of the statutory trust created by Section 33, holding that:

45. […] the trust created or recognised by Section 33 is not a trust in the conventional sense, because there is no separation of the legal and beneficial interest as between the personal representatives and anyone else, specifically the residuary legatees

46. “The statutory trust is one which imposes trustee-like duties on a personal representative with which they must comply in carrying out the administration of the estate. […] As Buckley J succinctly put it, the trust is part of the machinery provided for the administration of the estate and distribution to those entitled.”

13. An appropriate comparison to be drawn is to the form of “trust” which arises upon the bankruptcy of an individual or the liquidation of a company. In those circumstances, the trustee in bankruptcy or liquidator, as the case may be, is charged with administering the bankrupt’s estate for the benefit of creditors. However, the nature of such trusts as “statutory” indicates that they do not necessarily conform to the criteria of a conventional trust (at paragraphs 47 to 49).
14. As a result, the Court agreed with Freedman J’s view that the terms of the exception within Paragraph 12, specifically its reference to a beneficiary, indicates that it applies to trusts in the conventional sense. In other words, one “[…] where there is a separation of legal and beneficial ownership as between a trustee and one or more cestuis que trust. That is the clear inference to be drawn from [the wording of Paragraph 12], since it assumes that there are beneficiaries” (at paragraph 50).

Pre-legislative Materials

15. The Court then considered the pre-legislative materials which had been referred to in argument as an aid to construction. In particular, the Joint Report of the Law Commission and Land Registry entitled “Land Registration for the Twenty-First Century: A Conveyancing Revolution” (2001) (Law Com No 271), which underpinned the Land Registration Act 2002.
16. Paragraphs 14.93 and 14.94 of the Joint Report gave the following example to illustrate that the operation of Paragraph 12 in which:

‘58. […] land [is] held on A for life, thereafter for B for life and thereafter for C absolutely. It noted that a squatter had difficulties in acquiring title to land “held on trust for successive interests”, but that this was “an inevitable consequence of the need to protect those with future interests against squatters” […].’

17. This indicated that the purpose of Paragraph 12 was to prevent an adverse possessor from prejudicing the interests of beneficiaries who have successive interests in land but who are not yet entitled to possession (i.e. a conventional trust). However, the guidance should not be taken too literally where to do so would exclude other forms of conventional trust (notably, discretionary trusts) from the protection of Paragraph 12 (at paragraph 60). In other words, the point to be drawn from the pre-legislative material is that “[…] [h]ad [protection in the event of the death of the registered owner] been intended, it would most likely have been expressly foreshadowed somewhere in the pre-legislative materials” (at paragraph 61).

The definition of “trust” within other statutes

18. The Appellants had sought to argue that the definition of trust within Paragraph 12 should be read consistently with definitions of trust within other statutes. Notably, section 38(1) of the Limitation Act 1980 which, unless context otherwise requires, adopts the definitions of “trust” and “trustee” provided by the Trustee Act 1925. Section 68(17) of the Trustee Act adopts a broad definition which includes personal representatives (at paragraph 79). It followed that Paragraph 12 should adopt a similarly broad definition.
19. The Court dismissed this argument on several bases:
    1. First, although the cross-references between the Limitation Act 1980 and Land Registration Act 2002 indicate there is a connection between the two regimes, that connection is mitigated by the fact that they deal with separate regimes. Namely, the Land Registration Act deals only with registered land where the pre-legislative material indicates there is to be significant divergence from the treatment of unregistered land (at paragraph 89).
    2. Second, it does not follow that Parliament cannot have intended to distinguish between claims for adverse possession between parties to the trust and strangers to the trust, given that those two claims raise separate considerations (at paragraph 90). Indeed, such a distinction exists in relation to unregistered land; a stranger may adversely possess land whilst it is in the process of administration (at paragraph 91).
    3. Third, the adoption of the broad definition of “trust” and “trustee” within the Limitation Act 1980 is specifically limited to applying only where the context admits. Therefore, the phrase “subject to a trust” within Paragraph 12 does not extend to land within a deceased’s estate (at paragraph 92).

Comment

20. Naturally, the Court’s decision limits the protection afforded by Paragraph 12 to certain classes of registered proprietor. However, in the circumstances, it is difficult to see that as an unfair outcome. Especially where the Appellant’s construction would lead to anomalous results. For example, it was accepted that, where a deceased made a will, the statutory trust under Section 33 would arise immediately upon death. However, if the deceased were intestate, the statutory trust would not arise until a grant of administration is made. Were that the case, the survival of the neighbour’s adverse possession claim would be entirely contingent upon the deceased’s testamentary arrangements (at paragraph 68). Alternatively, in the case of intestacy, an adverse possessor may have accrued a significant period of possession at the point of death which is subsequently defeated by a future grant of administration (at paragraphs 69 to 70). For the Court, that uncertainty was unacceptable, especially where the rationale for permitting adverse possession is to ensure that land is kept in useful occupation.
21. The most cogent policy objection to the Court’s approach is that it is possible that beneficiaries coming to an estate will be unaware of the presence of a squatter on the land. In those circumstances, the beneficiaries would be unable to take steps to protect their interest from a claim in adverse possession. However, as the Court found (at paragraph 73), the position of anyone entitled to a residuary estate is necessarily one of precarity. It is possible that the deceased will devise their estate in some other way prior to death, or that they will fail to take appropriate action against a party in adverse possession. In either case, the nature of the estate left to the beneficiary at a future date is contingent upon the deceased’s actions during their lifetime. It does not follow that further protection is required to protect beneficiaries against the risk of adverse possession.
22. When thinking about the decision’s longer-term impact, it is perhaps useful to consider two contexts mentioned in passing: charities and insolvency. In relation to the first, the Court observed obiter that it is unlikely that Paragraph 12 could extent to purely charitable trusts (at paragraph 62). This is for two reasons. First, it is unclear that Paragraph 12 would be engaged “[…] where the beneficiary [of such a trust] is the abstract concept of charity […].” Second, Paragraph 12 envisages property held on trust for identifiable beneficiaries who will, at some point in the future, have an interest in possession. By definition, the concept of charity can never have an interest in possession. However, one has to ask whether this is a desirable outcome on policy grounds. The policy basis for affording additional protections to charities is that they provide social benefit, often with limited means; is it desirable that those means be depleted in defending adverse possession claims which could otherwise be avoided?
23. As was mentioned above, the Court held that an appropriate comparison could be drawn between the statutory trust which arose from Section 33 and that which arose on bankruptcy. Presumably, the narrow interpretation of Paragraph 12 as applying only to “conventional” trusts with a distinct class of beneficiaries will mean that trustees in bankruptcy and similar regimes are equally excluded from protection. On the face of it, this would leave a bankrupt’s creditors vulnerable in circumstances in which they are reliant upon an insolvency practitioner to administer the bankrupt’s estate. An obvious answer to these concerns may be that creditors may have a remedy in professional negligence in such circumstances. Nevertheless, quite how far the Court is willing to push these conclusions in the charity and insolvency contexts remains to be seen. For now, what is clear is that the protection offered by Paragraph 12 is available only to conventional trust structures.

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.