Cantwell & Ors v D Minney

Registration of land does not, by itself, terminate ongoing adverse possession. A person defending possession proceedings may rely on the statutory defences under Land Registration Act 2002, together with other available defences.

However, the additional-defences provision does not convert a claim based solely on adverse possession into an equitable estoppel defence. An estoppel under Schedule 6 requires a properly arguable proprietary equity. A person who knew throughout the relevant period that the land belonged to another, and accepted that possession proceedings could have been brought successfully, could not establish that kind of estoppel.

The defendant occupied unregistered land and claimed adverse possession from 2009. The claimants later became registered proprietors and issued possession proceedings.

The trial judge found that adverse possession began only in 2016 and made a possession order. Mr Justice Eyre refused permission to appeal on the papers, although he considered that fresh evidence might support an earlier date of possession. He also considered that the proposed appeal could not affect the outcome because the statutory conditions for a defence were not met.

On a renewed application, the central issue was whether the defendant could rely on an equitable-estoppel defence under Schedule 6 to the Land Registration Act 2002, via section 98(6), despite lacking the requisite period of adverse possession.

1. The renewed application for permission to appeal was refused. The proposed appeal was not reasonably arguable, although the judge reached that conclusion for reasons differing from those given by Mr Justice Eyre.

2. Registration in 2017 did not automatically stop adverse possession. The relevant provisions were section 98 and Schedule 6 to the Land Registration Act 2002. The claimants accepted that possession proceedings, rather than registration alone, would stop ongoing adverse possession.

3. Section 98(3) provides a defence where, immediately before the action, the defendant was entitled to apply under paragraph 6 of Schedule 6 to be registered as proprietor. The reference made below to the conditions in paragraphs 5(2) or 5(3) as prerequisites to that defence was erroneous.

4. Section 98(6) makes the statutory defences additional to other available defences. In principle, an equitable estoppel of the kind described in paragraph 5(2) of Schedule 6 could therefore be relied upon as an additional defence. Such an estoppel concerns a proprietary equity capable of making it unconscionable for the registered proprietor to seek possession.

5. On the evidence, the defendant could not reasonably establish that equity. He accepted that he knew throughout the relevant period that the land did not belong to him and that the owners could have obtained possession at any time. His claimed entitlement therefore depended exclusively on completing the period of adverse possession. That was not the kind of defence intended to be covered by section 98(6).

• High Court (King's Bench Division): On 4 May 2023, the renewed application for permission to appeal was refused.
• High Court: Mr Justice Eyre refused permission to appeal on the papers on 24 February 2023 and refused an extension of time, while indicating that an extension might have been granted if the proposed appeal had otherwise been meritorious.
• County Court: Mr Recorder Lyons made a possession order on 3 August 2022 after finding that adverse possession began in 2016.