Adverse possession and the period of reasonable belief: the Supreme Court decision in Brown v Ridley [2025] UKSC 7
The Supreme Court in Brown v Ridley [2025] UKSC 7 rules on test for reasonable belief of ownership for an application for registration of title based on adverse possession
Summary
The Supreme Court in Brown v Ridley [2025] UKSC 7 has unanimously clarified that the requirement that an applicant has a ‘reasonable belief’ that the land belongs to them for a period of at least ten years before making an application for registration based on adverse possession under paragraph 5(4)(c) of Schedule 6 to the Land Registration Act 2002 (“LRA 2002”) only requires this belief to be held in any 10 year period before the application, rather than the 10 years immediately prior to the date of the application itself. The practically unrealistic suggestion that an application had to be made immediately upon that belief in ownership being shaken, which was advanced in Zarb v Parry [2011] EWCA Civ 1306, [2012] 1 WLR 1240, has therefore been decisively rejected.
Key Takeaways
Brown v Ridley is an important decision. While the LRA 2002 affords much more protection to registered owners than the regime under the Limitation Acts 1939 and 1980 and the Land Registration Act 1925, adverse possession remains a fruitful area of contention in boundary disputes under the regime in the LRA 2002. The decision that there is no statutory requirement for a prompt application after the applicant discovers that their reasonable belief is built on sand may, at first blush, lead to more uncertainty in the correct position of boundaries. The LRA 2002 was never intended to resolve all boundary disputes, however, as the continued existence of the general boundary rule through section 60 tacitly accepts.
Factual Background
Mr Brown and Mr and Mrs Ridley are registered owners of plots of land that neighbour each other. The Ridleys purchased their land in July 2004. The previous owner of their land had put up a fence and planted a hedge along what was understood to be the boundary between the two plots of land. However, this had in fact enclosed part of Mr Brown’s land (“the Disputed Land”).
The Ridleys had initially used the Disputed Land as part of their garden. It later formed part of the site for constructing a new house, into which they later moved. In 2018, the fence and hedge were removed in preparation for the construction work.
In 2019, Mr Brown gave notice that the construction work was in breach of the Party Wall etc. Act 1996. In December 2019, the Ridleys applied to HM Land Registry to be registered as owners of the Disputed Land on the grounds of adverse possession under paragraph 5(4) of Schedule of the LRA 2002, which provides (our emphasis):
“(a) the land to which the application relates is adjacent to land belonging to the applicant,
(b) the exact line of the boundary between the two has not been determined under rules under section 60,
(c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and
(d) the estate to which the application relates was registered more than one year prior to the date of the application.”
Mr Brown objected. HM Land Registry referred the matter to the First-tier Tribunal, which found for the Ridleys. Upon appeal to the Upper Tribunal, who found themselves bound by Zarb v Parry, Mr Brown was successful. A leap-frog appeal to the Supreme Court was allowed.
Issues
The sole issue before the Supreme Court was whether the 10 years of reasonable belief of ownership required for registration under paragraph 5(4) of Schedule 6 to the LRA 2002 must be the 10 years immediately preceding the date of the application, or whether it could be any period of 10 years within the period of adverse possession.
Decision
Lord Briggs, with whom the other justices agreed, gave the judgment of the Supreme Court. The Supreme Court concluded that the 10 years of reasonable belief could be held within any period of time, and that it did not have to be held immediately before the application.
Statutory Interpretation
The Supreme Court makes a number of important observations about the scheme of land registration and adverse possession in the LRA 2002. The underlying objective of the reforms enacted by the LRA 2002, as garnered from the consultation paper, ‘Land Registration for the 21st Century: A Conveeyancing Revolution’ (1998) (Law Com. No. 254), was to enhance the status of the register so that it was a complete and accurate reflection of the state of the title of the land at any given time. Lord Briggs noted, however, the LRA 2002 was part of a reform to restrict the scope for acquiring land by adverse possession, Parliament was careful to ensure it was not removed altogether. In particular, the LRA 2002 did not enact any significant change to the ‘general boundaries rule’ and did not seek to elevate the reliability of the register as the determinant of boundaries (as opposed to its intended effect on title): see Sawtell, ‘Prospective abolition of the general boundary rule’ (2023) 2 Conveyancer and Property Lawyer 140.
The interpretation advanced by the respondent (Mr Brown) but ultimately rejected by the Supreme Court was that the 10-year period of reasonable belief needed to be the 10 years ending on the date of the application. This would require the adverse possessor to make their application immediately (or almost immediately) upon the ending of their reasonable belief. The ending of reasonable belief would invariably coincide with a dispute being raised by a neighbour as to ownership. It was conceded, however, that it was unrealistic to expect an application on the same day, with the requisite expert evidence of boundaries, chronology of occupation, and legal advice.
The interpretation was also unattractive because it would have the perverse effect of encouraging neighbourly disputes by requiring an immediate application to HM Land Registry and/or the First-tier Tribunal upon being made aware of the ownership issue rather than negotiating a resolution or engaging in any other form of ADR: see paragraphs [23]-[27].
The respondent’s contention that a de minimis period, for example 1 or 2 months, for making an application was implied by their interpretation was rejected because there was no support for it in the plain language of paragraph 5(4) of the LRA 2002. In any event, de minimis time was insufficient to apply for registration. Further, other statutory provisions concerned with adverse possession expressly provided for grace periods, for example the 6-month period of bringing a defence of adverse possession to being evicted from unoccupied land. If Parliament had intended for a grace period to apply to paragraph 5(4) of the LRA 2002, they would have provided for it.
Lord Briggs observed at [29] that the structure of Schedule 6 of the LRA 2002 leaves the squatter free to choose whether to apply for registration or to wait to see if they are evicted or sued for possession. He observed that “Those are real choices to make in the real world”. Civil litigation should be regarded as a last resort.
ECHR Obligations
The respondent also contended that Article 1 of Protocol 1 of the European Convention on Human Rights (protection of property) required the court to resolve any statutory ambiguities in favour of that which would yield greater protection to proprietary interests. Lord Briggs dismissed this argument because the European Court of Human Rights had found that the pre-LRA regime of adverse possession – far more hostile to registered owners – was compliant with Article 1 of Protocol 1 in JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR. See paragraph [44].
Conclusion
The Law Commission report, Updating the Land Registration Act 2002 (2018) (Law Com. No. 380) considered that claimants should be required to act promptly once they discovered their mistake, as it was in the interest of all parties for the situation to be resolved. It was recognised, however, that some time should be given to resolve the issue before it developed into a legal dispute. It was recommended that where a claimant relies on the condition in Schedule 6, paragraph 5(4), they should have to apply within 12 months of when their reasonable belief that the land belonged to them ended. This would be a halfway house between the need for an immediate application (as suggested in Zarb v Parry ) and the decision in Brown v Ridley, which does not impose a longstop on when an application can be made.
Following the logic of the Law Commission consultation and report, the conclusion of the Supreme Court, therefore, could be considered to undermine the finality of the Register. On the other hand, the response of Dr Charles Harpum KC (Hon) to the consultation that “no sane person wishes to initiate a boundary dispute” chimes with practical experience. The Civil Justice Council’s Guidance Note on Boundary Disputes (August 2018) strains to prevent such disputes reaching the state where litigation is pursued. As Briggs LJ (as he then was; who now as Lord Briggs gave the lead judgment in Brown v Ridley) noted in Upton v Parmar [2015] EWCA Civ 795, [2015] EGLR 58, a case about the ‘hedge and ditch rule’, “The blood, toil and sweat which has been devoted to this litigation would even have horrified Prince Hamlet”. Brown v Ridley gives support to those who would adopt the Danish prince’s stance that action is sometimes best postponed to another day, if it ever takes place at all.
