Anthony Charles Clapham & Ors v Dee Narga

Adverse possession acquired before first registration under the Land Registration Act 1925 is subject to the statutory consequences later introduced by the Land Registration Act 2002. Where first registration occurred before the 2002 Act came into force, section 75 of the 1925 Act applies even if the squatter had already acquired title by adverse possession. The registered proprietor holds the estate on the statutory trust created by section 75, subject to the transitional regime. After a subsequent registered disposition, the squatter’s priority is protected only where the requirements for an overriding interest, including actual and apparent occupation, are met. The general boundaries rule does not avoid section 29 where the disputed land formed part of the registered estate.

The appellants owned properties adjoining Brook Barn. They claimed that the boundary followed a fence and that they had acquired two strips of land by adverse possession. The Leicester County Court held that the boundary followed the southern bank of the brook, accepted that the appellants had acquired title to the strips by adverse possession, but dismissed their claim to be registered because their occupation was not obvious on a reasonably careful inspection when the respondent purchased Brook Barn.

The appellants appealed on the operation of adverse possession, first registration and registered disposition under the land-registration legislation. They also renewed permission applications concerning construction of the 1982 and 1988 conveyances. The central issue on the appeal was whether the general boundaries rule prevented the respondent acquiring a registered estate including the disputed strips.

1. Ground 1 dismissed. The appellants had acquired title to the strips by adverse possession before first registration of Brook Barn. Nevertheless, section 75(1) of the Land Registration Act 1925 applied.
2. Section 75 applies to all cases in which a squatter has acquired title to registered land by adverse possession, whether acquisition occurred before or after first registration. The words requiring the Limitation Acts to apply in the same manner and to the same extent do not support the suggested temporal distinction. The statutory trust therefore arose on first registration.
3. The former section 70(1)(f) overriding interest protected both rights already acquired and rights in the course of acquisition. The legislative history also showed that Parliament intended the later change in priority to apply generally to squatters’ rights. Re Chowood’s Registered Land was neither binding nor persuasive on the contrary construction; the relevant observation was not part of its ratio.
4. Following expiry of the transitional period, the appellants’ surviving priority depended on the requirements of the 2002 Act. Under section 29 and Schedule 3, paragraph 2, an interest was protected only if the claimant was in actual occupation and the occupation was apparent on a reasonably careful inspection, subject to the statutory exceptions. The appellants were in actual occupation, but their occupation was not obvious because the fence was dilapidated and the vegetation was overgrown.
5. The general boundaries rule did not alter the result. Once the respondent’s predecessor was registered as proprietor of Brook Barn including the strips, the strips formed part of the registered estate conveyed to the respondent. The boundary/property-dispute distinction was therefore immaterial to Ground 1.
6. Permission to appeal was granted on Grounds 2 and 3. Ground 3 concerning the 1988 conveyance had a real prospect of success because the parties’ knowledge of the physical features might form part of the factual matrix. Permission was also granted on Ground 2 concerning the 1982 conveyance. The further appeal was adjourned for consequential directions.

• Chancery Appeals, High Court: The appeal against the Leicester County Court order dated 7 March 2023 was dismissed on Ground 1. Permission to appeal was granted on Grounds 2 and 3.
• Leicester County Court: His Honour Judge Hedley dismissed the claims for declarations concerning the boundary and registration of the disputed strips after trial.