Swan Housing Association Ltd v Gill

Under the Land Registration Act 2002, adverse possession of registered land is pursued through an application to the Land Registry. The court does not determine title by adverse possession in ordinary proceedings unless the statutory scheme specifically requires it, such as possession proceedings engaging section 98. The restriction in Schedule 6, paragraph 1(3) applies where the defendant is involved in proceedings in which the claimant asserts a right to possession. It does not prevent an application merely because the defendant is asserting possession in separate injunction proceedings.

The claimant, a housing association, sought an anti-social behaviour injunction against its assured tenant in respect of alleged obstruction of a passageway and trespass on adjoining garden areas. The defendant relied on alleged adverse possession and applied to the Land Registry to register possessory title.

The Southend County Court adjourned the trial, joined neighbouring freeholders, directed that the Land Registry be informed, and held that Schedule 6, paragraph 1(3) prevented the application. On appeal, the issues were whether the county court should determine adverse possession and whether the statutory restriction applied to these injunction proceedings.

1. Appeal allowed. Permission to appeal out of time was granted, and the appeal succeeded on both substantive grounds.
2. The Land Registration Act 2002 fundamentally altered the law of adverse possession of registered land. No limitation period runs against the registered proprietor, and title is not acquired merely through possession for the former limitation period. An effective application must be made to the Land Registry under Schedule 6, paragraph 1(1).
3. The county court therefore had no issue of title to determine in these injunction proceedings. Its general jurisdiction under section 21 of the County Courts Act 1984 could not override the specific statutory scheme. The statutory adjudication process, including the mechanism under section 73(7), was intended to address disputed registration issues.
4. Schedule 6, paragraph 1(3) prevents an application where the applicant is a defendant in proceedings involving an assertion by the claimant of a right to possession of the land. The provision does not apply merely because the defendant asserts a right to possession, and it did not apply to proceedings seeking an injunction rather than possession.
5. There was consequently no reason to postpone the Land Registry application or require notification of these proceedings on the basis adopted below. The county court order was set aside to the extent necessary, and the trial was to be adjourned pending the outcome of the registration application.

• High Court (Queen's Bench Division): Appeal from the Southend County Court allowed. The trial should have been adjourned pending the outcome of the Land Registry application.
• Southend County Court: By order dated 18 April 2012, HH Paul Collins CBE adjourned the trial, joined neighbouring freeholders, directed notification of the Land Registry, and held that Schedule 6, paragraph 1(3) prevented the defendant's application.