I acted for the successful Defendants Mr & Mrs Parry in the 2011 case Zarb v Parry. I believe that there are two reasons this case has remained significant. It certainly appears to have helped that it has a Google-friendly name. But more significantly, it was the first case to reach the Court of Appeal on the operation of “the boundary condition” ground for claiming adverse possession under s98 of the Land Registration Act 2002.
The recent case of Brown v Ridley has brought it to the fore again. That case resolved a problem left by Zarb v Parry, albeit accidentally. But despite Brown v Ridley resolving the issue left by Zarb v Parry, it will still be relevant to anyone claiming adverse possession under the Act.
Zarb left practitioners with a serious problem when using the boundary condition. In order to satisfy it, the party claiming adverse possession had to demonstrate that they had a ten year period of possession, ending on the date of their application to the Land Registry, with a reasonable belief that the land belonged to them throughout.
This gave rise to some obvious problems – though not perhaps obvious to whoever drafted this part if the Act. If you have a reasonable belief that you own land, then why would you apply for adverse possession? You would only think you needed to apply for adverse possession if you knew that you did not own the land; once you have lost your belief. And if your reasonable belief ends, then on the face of the Act, you have to apply to the Land Registry for adverse possession that very day.
The point did not arise in Zarb v Parry, as the Parrys claim to the land never went to the Land Registry. Once the dispute was apparent the parties hired an expert land surveyor pre-issue on a joint basis to give an opinion on the legal boundary only, and that favoured the Parrys. The Zarbs did not accept that opinion and issued proceedings for trespass. The Parrys relied on the expert in their argument that they owned the land on paper, and fell back on over 10 years ongoing adverse possession. The first instance Judge found for the Zarbs on the paper title, but for the Parrys on adverse possession; a win overall for the Parrys who only needed to succeed on one of those two points to keep the land. Accordingly, the Parrys only lost their reasonable belief that the land was theirs on paper when judgment was handed down at first instance when they lost on the paper title point.
The Zarbs appealed the adverse possession point, and the Court of Appeal concluded that the Parrys had satisfied the requirements of the boundary condition, and so dismissed the Zarbs’ appeal. The part of her decision that concluded they had over 10 years uninterrupted adverse possession with reasonable belief is short. But since the Parrys had made no application to the Land Registry, the question of whether they held their reasonable belief up to the day they made their application was not considered; there was no application. There is no analysis in the judgment as to when the relevant 10 year period must be. Though the assumption is clear that the judge thought it was the period up to when the Zarbs issued court proceedings. But in fact it persisted longer than that; right up to first instance judgment.
But the Court of appeal judgment did recite s98(1) of the Act, which notes the requirement for the 10 year period to end on the date of the application for adverse possession. Accordingly, decisions since that case have gone the way of interpreting this as a binding judicial decision that the 10 year period must end on the date of the application. Practitioners had been “fudging” the issue since Zarb, with the accepted practice being that as long as you made your application pretty quickly you would be OK.
Brown v Ridley was leap frogged to the Supreme Court in order to resolve the issue. The conclusion, which is well reported elsewhere, is that it is not necessary for the 10 year period of adverse possession and reasonable belief to end on the date of the application for adverse possession. It can be any 10 year period.
What does Zarb v Parry still tell us then? While still easy to find on Google, is it still relevant? I believe that it is for several reasons.
It illustrates that an adverse possessor can keep their reasonable belief despite a challenge by the paper title owner. The Parrys kept theirs up to the issue of court proceedings – the date the court thought was significant. And in fact right up to the door of the court, and through to a written judgment handed down later.
And conversely for a paper title owner, that simply setting out to an adverse possessor why they do not own land they occupy may not be enough to dispel a reasonably held belief.
While dispossessing an adverse possessor will end their period of occupation, it may not save the paper title owner either. The adverse possessor has 6 months after eviction to bring make their claim to the Land Registry. The Parrys fought off an attempt by the Zarbs to dispossess them. They caught the Zarbs banging fence posts into their lawn in an attempt to reclaim the disputed land, and managed to stop them. This was important as it stopped the Zarbs repossessing the land. But in fact it would have done the Zarbs no good. An adverse possessor with 10 years possession, but who is dispossessed, has 6 months to apply to the Land Registry. Ironically therefore, and pre-Brown v Ridley , an adverse possessor might have done better to allow the paper title owner to dispossess them and so have 6 months to make their claim. As opposed to remaining in possession but having lost their reasonable belief, and having to make their claim that same day. Brown v Ridley has resolved that obvious unfairness. Meaning that as an adverse possessor, it is still worth fighting off the paper title owner (though with the obvious regard for their own personal safety).
While anyone advising either party must have regard to the facts of each case, the position seems to be as follows.
Brown v Ridley helps an adverse possessor with 10 years occupation but who has lost their reasonable belief, as they can now apply to the Land Registry whenever they like. And if they remain in unchallenged possession, they may decide not to.
A paper title owner who discovers an adverse possessor on their land can no longer run the argument that the loss of reasonable belief is fatal to the adverse possessors claim. They must either dispossess the adverse possessor, or make a very strong and persuasive case for ownership; ideally issuing court proceedings for trespass promptly if the adverse possessor does not immediately apply to the Land Registry, or vacate.
Delay is no longer fatal to the adverse possessor, but could still be to the paper title owner.
About the Author
A Partner in the mfg’s Civil Litigation department, Kevin has 27 years of experience practising in the field of general Civil and Property Litigation. Kevin has significant experience in property and general civil litigation, professional negligence, landlord & tenant & defendant personal injury. He also has an interest in the insurance industry, particularly legal expense insurance. To contact Kevin, email kevin.morgan@mfgsolicitors.com
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