Brown v Ridley and another

For the boundary condition governing adverse-possession applications under paragraph 5(4) of Schedule 6 to the Land Registration Act 2002, the applicant’s reasonable belief in ownership need not continue until the application date. The applicant must have held that belief for at least ten years within the longer period of adverse possession ending on that date.

The contrary construction would make the boundary condition largely illusory in typical disputes, since discovery of the true boundary commonly prompts the application. The de minimis principle cannot supply a substantive period of grace, and the Soneji principle concerns the consequences of non-compliance rather than the content of a statutory requirement.

The appellants adversely possessed a strip of registered land adjoining their property from 2004. They reasonably believed that they owned it until about February 2018, but did not apply for registration until December 2019. The First-tier Tribunal held that paragraph 5(4)(c) of Schedule 6 to the Land Registration Act 2002 did not require their reasonable belief to continue until the application date.

The Upper Tribunal, in [2024] UKUT 14 (LC), preferred the same interpretation but regarded itself as bound by Zarb v Parry [2011] EWCA Civ 1306 to adopt the contrary construction. A leapfrog appeal therefore raised whether the required ten years of reasonable belief could occur at any time within the period of adverse possession ending on the application date.

1. The appeal was allowed unanimously. Lord Briggs, with whom Lord Hamblen, Lord Stephens, Lady Rose and Lady Simler agreed, held that paragraph 5(4)(c) of Schedule 6 to the Land Registration Act 2002 bears construction B. The applicant must reasonably have believed in ownership for at least ten years during the period of adverse possession ending on the application date. The belief need not persist until that date.

2. The statutory language, read in context, supports that construction. The words “ending on the date of the application” naturally qualify the period of adverse possession. They repeat the structure of paragraph 1(1), which requires adverse possession to continue until the application. They do not impose the same endpoint upon the distinct period of reasonable belief.

3. The purpose and structure of the 2002 regime reinforced that reading. Paragraph 5(4)(a) and (b) already confine the boundary condition to adjacent land where the register does not determine the exact boundary. The reasonable-belief requirement excludes knowing trespassers and introduces an objective safeguard for the registered proprietor. Requiring the belief to continue until application would add no discernible purpose and would make the condition largely illusory in typical boundary disputes, because evidence disproving ownership commonly provides the impetus to apply.

4. The de minimis principle could not cure construction A by supplying one or two months in which to prepare an application. Such preparation, including professional advice, evidence gathering and consideration of alternative dispute resolution, is substantial rather than trivial. Parliament expressly supplied a six-month grace period following eviction but provided none for the cessation of reasonable belief. The Soneji principle was also inapplicable: it determines the consequences of non-compliance with a statutory requirement, not the content of the requirement.

5. The unexplained assumption in Zarb v Parry [2011] EWCA Civ 1306 that construction A applied was wrong. The issue had not been argued there and could not have affected the result.

6. Construction B was compatible with article 1 of the First Protocol to the ECHR. The 2002 regime greatly reduced the scope of adverse possession compared with the former regime upheld in JA Pye (Oxford) Ltd v United Kingdom. Either construction fell within the United Kingdom’s wide margin of appreciation.

7. The decision of the First-tier Tribunal was restored. The appellants were entitled to be registered as proprietors of the disputed land.

1. United Kingdom Supreme Court: The leapfrog appeal was allowed unanimously. The court set aside the decision of the Upper Tribunal and restored the First-tier Tribunal’s decision that the appellants were entitled to registration.

2. Upper Tribunal (Lands Chamber): In [2024] UKUT 14 (LC), the tribunal considered construction B correct but held that Zarb v Parry bound it to apply construction A.

3. First-tier Tribunal: The tribunal found the required adverse possession and reasonable belief proved. It adopted construction B and held that the appellants were entitled to be registered as proprietors of the disputed land.