UK Supreme Court clarifies 10-year 'reasonable belief' requirement in adverse possession applications

The Supreme Court, in its recent judgment in the case of Brown v Ridley, has unanimously overturned the Upper Tribunal's decision relating to the meaning of the 10-year "reasonable belief" requirement in adverse possession applications made under paragraph 5(4) of schedule 6 to the Land Registration Act (LRA) 2002.

Adverse possession

The legal principle of "adverse possession" allows a person to claim ownership of another's land through long-term occupation. For registered land, the LRA 2002 applies and an applicant can be registered as the proprietor of land if specific conditions are met.

If an application is opposed, mere possession is no longer enough, there are three statutory conditions at least one of which an applicant must meet. In this case, the applicants relied on the third condition.

The third condition

Under paragraph 5(4) of schedule 6 of the LRA 2002, the following conditions must be met: the land in question is adjacent to land owned by the applicant, has been registered for at least a year, and the precise boundary line has not been determined under section 60 of the act.

In addition, under sub-paragraph 5(4)(c), it states that for at least 10 years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) must have "reasonably believed that the land to which the application relates belonged to him". The interpretation of this was the main issue for the Supreme Court.

Land dispute

The respondent, Mr Brown, was the registered proprietor of a substantial piece of rough, undeveloped land located in Durham. The appellants, Mr and Mrs Ridley, were registered proprietors of adjoining land. Mr and Mrs Ridley constructed a dwelling on the disputed land, which formed part of Mr Brown's registered title.

The First-tier Tribunal found that the Ridleys reasonably believed they owned the disputed land from 2004 until February 2018. This belief ended when they obtained planning permission for their construction, revealing evidence to the contrary. Consequently, there was a 21-month gap between the end of their 14-year period of reasonable belief and their application date in December 2019. The application was contested by Mr Brown. He argued that the Ridleys knew they were not the rightful owners of the land before submitting their application, therefore failing to meet the condition set out in the LRA 2002 and relying on the earlier decision in Zarb v Parry.

Decisions of the tribunals

The First-Tier Tribunal allowed the Ridleys application for adverse possession, stating that the timing of the 10-year period of "reasonable belief" was irrelevant, as long as it was continuous.

The Upper Tribunal subsequently decided that the First-Tier Tribunal had made a material error in law by failing to follow the Court of Appeal's decision in Zarb v Parry and that the 10-year period ends on the date of the applicant's application. The Upper Tribunal's decision meant that, as the Ridleys had become aware that they were not the owners of the disputed land shortly before making the application, the 10-year rule had not been satisfied.

The Upper Tribunal's decision was then appealed directly to the Supreme Court (leapfrogging the Court of Appeal). The Supreme Court restored the decision of the First-tier Tribunal, thereby allowing Mr and Mrs Ridley to be registered as proprietors of the disputed land.

The Supreme Court's reasoning

The Supreme Court decided that the required period of reasonable belief can be any period of at least 10 years within the potentially longer period of adverse possession ending on the date of the application.  The Supreme Court found that the Upper Tribunal's narrow interpretation would make it nearly impossible for applicants to meet the 10-year requirement, as they would likely realise they were not the owners before applying, hence the need to make the application.

Mr Brown's legal team sought to argue that the "de minimis" principle could justify a short period of grace for making the application after the loss of "reasonable belief". The Supreme Court rejected this argument on the basis that a one- or two-month extension to make the application would not fall within the concept of de minimus (meaning a trivial or inconsequential matter), rather it would be a matter of real substance.

The Supreme Court recognised that preparing an application for registration involves significant time and effort, including obtaining professional advice, gathering evidence and considering the costs and benefits of the application. Therefore, expecting an immediate application following the loss of reasonable belief would be unrealistic.

The Supreme Court also considered the compatibility of the interpretation of the 10-year condition with the European Convention on Human Rights (ECHR). Mr Brown's legal team had argued that any ambiguity in the interpretation of the LRA 2002 should be resolved in favour of a landowner's proprietary rights. The Supreme Court rejected this argument and found that the reduced scope for adverse possession under the act, compared with the old regime, falls within the UK's margin of appreciation and is therefore compliant with the ECHR.

Osborne Clarke Comment

This is a very helpful clarification of the law. It is now finally clear that the 10-year period of a "reasonable belief" of ownership can be held at any point prior to making the application.

Equally, it avoids the unsatisfactory position left for many years by Zarb v Parry, whereby it was almost impossible to prove the 10-year period of "reasonable belief" in ownership. The common-sense approach taken by the Supreme Court is, therefore, to be welcomed.

The decision highlights how important it is for landowners to inspect their land regularly to ensure that there is no encroachment which could result in receipt of a costly adverse possession application.

The timings of making an application remain important, and we would encourage both landowners and applicants to take legal advice at an early stage to minimise the risks of a long and costly adverse possession dispute.