Stephen Jourdan KC appears for successful adverse possession claimants
On 23 March 2023, Judge Green gave judgment in Waters v Stott (2023) REF/2021/0470 in the Land Registration Division of the FTT. Stephen Jourdan KC acted for the successful claimants, instructed by Riz Majid of Bark & Co.
The case is an illustration of how the law applies where there has been more than 12 years’ adverse possession of registered land prior to 13 October 2003, and there have been changes in both the registered proprietor and the persons in possession.
The case concerned a triangle of land, shown marked “Disputed Land” on a plan which can be downloaded here. The plan shows two houses, Number 4 and Number 6.
The houses were built in 1970 and sold under 999-year leases, both of which were registered. The Disputed Land was demised by the lease of Number 4 and included in the land shown edged red on the Number 4 title plan.
The original owners of Number 6, the Slaters, then laid out a garden which included the Disputed Land and thereafter treated the Disputed Land as part of their garden. The original owners of Number 4 made no objection to this.
In 2001, Mrs Slater sold Number 6 to the Waters, who carried on using the Disputed Land in that way. That continued without any objection from the owners or occupiers of Number 4 until after the Stotts bought Number 4 in November 2018.
Shortly after the purchase, the Stotts confronted the Waters, claiming that they had stolen the Disputed Land, and alleging that this had occurred fairly recently. The Waters then applied to the Land Registry to be registered as proprietors of the Disputed Land based on adverse possession. The Stotts objected and the Land Registry referred the matter to the FTT.
Judge Green held that the Waters had proved that the Disputed Land had been treated as part of the Number 6 garden since 1970, and that, therefore, the Slaters had been in possession of the Disputed Land without the owners' consent of Number 4. The fact that the owners of Number 4 knew how the Disputed Land was being used and made no objection did not constitute consent. Accordingly, time had run against the original owners of Number 4 under the Limitation Act 1980 from 1970.
After 12 years, the effect of s.75 of the Land Registration Act 1925 was that the Disputed Land was deemed to be held on bare trust for the Slaters.
The rights of the Slaters under that trust constituted a possessory title, which was passed to the Waters in 2001 when Mrs Slater relinquished possession to the Waters. The Judge explained that: “A first squatter can pass their possessory title to another squatter by the first relinquishing possession to the second without the need for formal transfer of their possessory legal estate or of the beneficial interest under the s.75 trust”, citing Haandrikman v Heslam [2021] UKUT 56 (LC).
The Judge then explained the effect of the Land Registration Act 2002:
“When the Land Registration Act 2002 came into force, on 13 October 2003, the Land Registration Act 1925 was repealed. Schedule 12 paragraph 18 of the 2002 Act provided for what was to happen in cases where, immediately before that date, a registered estate was held in trust for a person by virtue of s.75 of the 1925 Act. paragraph 18 did not continue the deemed trust imposed by s.75, which was abolished by the repeal of s.75. Instead, it provided that the person was entitled to be registered as proprietor of the estate.”
He held that when the Stotts purchased Number 4 in 2018, they were bound by the Waters’ right to be registered as proprietor of the Disputed Land because the Waters were in actual occupation of the Disputed Land and that occupation would have been obvious on a reasonably careful inspection.
Accordingly, he directed that the Land Registry give effect to the Waters’ application to be registered as proprietors of the Disputed Land.
The judgment can be downloaded here.
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