Naeem Nazir & Anor v Dilshad Begum

For the purposes of paragraph 12 of Schedule 6 to the Land Registration Act 2002, land in an unadministered estate is not subject to a trust merely because personal representatives hold it under section 33 of the Administration of Estates Act 1925. Paragraph 12 concerns a conventional trust involving separate legal and beneficial ownership and beneficiaries whose interests may be successive or not yet in possession. A statutory estate trust instead gives personal representatives the whole ownership for administration, subject to trustee-like duties, without a separate beneficial interest in specific assets. The cross-reference to the Limitation Act 1980 does not import its extended meanings of trust and trustee. Land therefore remains capable of being acquired by adverse possession during estate administration.

The appellants, administrators and later registered proprietors of a strip of land, sought possession from the respondent, who claimed title by adverse possession based on her occupation and that of her predecessor for more than ten years. HHJ Walsh found that the respondent had acquired title. The appellants later raised a new argument under paragraph 12 of Schedule 6 to the Land Registration Act 2002, contending that the land was subject to the statutory trust arising under section 33 of the Administration of Estates Act 1925. Freedman J rejected that argument: [2024] EWHC 378 (KB). The appeal concerned the meaning of subject to a trust and, alternatively, whether the beneficiaries had interests in possession.

Lord Justice Zacaroli gave the leading judgment. Lord Justice Moylan and Sir Julian Flaux agreed. The appeal was dismissed.

1. Statutory scheme. The registered-land adverse possession provisions in Schedule 6 to the Land Registration Act 2002 were designed to reflect the different foundations of registered title. Paragraph 12 prevents adverse possession while an estate is held on a conventional trust, unless every beneficiary has an interest in possession.
2. Nature of the section 33 trust. The authorities, including Sudeley v Attorney-General [1897] AC 11, Commissioner of Stamp Duties v Hugh Duncan Livingston [1965] AC 694, Re Leigh’s Will Trusts [1970] Ch 277, Marshall v Kerr [1995] 1 AC 148 and Ayerst v C & K (Construction) Ltd [1976] AC 167, establish that personal representatives hold the whole unadministered estate for administration, without a separation between legal and equitable ownership. Residuary beneficiaries have a chose in action requiring due administration, not a proprietary interest in particular assets. The statutory trust imposes trustee-like duties and operates as machinery for administration and distribution.
3. Construction of paragraph 12. The reference to beneficiaries and interests in possession indicates a conventional trust with separate beneficial ownership. The pre-legislative materials support the conclusion that paragraph 12 was aimed at protecting successive or future beneficiaries, not at preventing strangers from acquiring registered land merely because the registered proprietor had died or administration was delayed. The cross-reference to the Limitation Act 1980 does not import the extended statutory meanings of trust and trustee. The different treatment of strangers and beneficiaries, and the separate regimes for registered and unregistered land, are legitimate.
4. Alternative issue. The court did not decide whether the appellants had proved that no beneficiary under the section 33 trust had an interest in possession. That issue was academic. The court recorded the common ground that an interest in possession means a present right to present enjoyment of property. It also left undecided whether paragraph 12 extends to purely charitable trusts.

Land held by personal representatives in an unadministered estate is not subject to a trust within paragraph 12. The respondent therefore remained capable of acquiring title by adverse possession.

• Court of Appeal (Civil Division) Dismissed the appeal and held that land held by personal representatives in an unadministered estate is not subject to a trust within paragraph 12 of Schedule 6 to the Land Registration Act 2002: [2025] EWCA Civ 587.
• High Court, King’s Bench Division Freedman J dismissed the appellants’ appeal on the paragraph 12 issue: [2024] EWHC 378 (KB).
• High Court HHJ Walsh held after trial that the respondent had acquired title by adverse possession. The paragraph 12 issue was not argued at trial.