Adverse possession claims are not uncommon by any means, but it is unusual for a claim to be made in respect of land forming part of a deceased’s estate.
The expert property litigation team at mfg Solicitors represent clients involved in land and property disputes, including adverse possession claims.
In a recent case, a claimant was allowed to go ahead with her claim of ownership of a strip of land where the registered owner had died years previously.
What is adverse possession?
A property owner who is registered as such at HM Land Registry with full legal title has the highest level of protection. However, a person who has taken possession and use of land without the registered legal owner’s permission for at least 10 years (12 years if the land is unregistered) can be registered as the legal owner (Schedule 6 Land Registration Act 2002).
What happened in this case?
The disputed land in Nazir v Begum [2025] EWCA Civ 587 was a strip of land running along the rear of two properties in Bradford. The late Mohammed Nazir purchased his property (Lower Rushton) in 1980 and he died in March 2010. The disputed land formed part of Lower Rushton.
Dilshad Begum inherited an adjoining property in 2021 on her husband’s death (he bought the property in 1998). She subsequently claimed legal ownership of the disputed land on grounds of adverse possession.
In 2019, Mr Nazir’s sons were appointed his personal representatives (PRs). It is not clear why it took so long to obtain the grant of representation. In April 2022 they were registered as the joint owners of Lower Rushton – presumably in response to Mrs Begum commencing legal proceedings for adverse possession a few weeks previously.
A key issue for the court was whether her claim could proceed given that the PRs held the property on trust for the beneficiaries and whether this meant the property was “subject to a trust” within the meaning of the Land Registration Act 2002 so as to prevent a claim for adverse possession.
Statutory trust
Mr Nazir had died intestate (without a will), so the PRs held his estate on a statutory trust under s33 Administration of Estates Act 1925. However, the 2002 Act states that if land forming part of a deceased estate is subject to a trust - another person cannot be regarded as being in adverse possession of it.
This meant that if the disputed land was subject to a trust for the purposes of the 2002 Act, Mrs Begum would be barred from claiming ownership by adverse possession.
In the Court of Appeal, Lord Justice Zacaroli differentiated between a statutory trust and a ‘conventional’ trust: “The statutory trust imposed by Section 33 is not a trust in the conventional sense. It ensures that administrators are subject to fiduciary obligations in the management of the estate, but they hold the entirety of the estate without distinction between legal and equitable title.” It’s to do with their duties as trustees rather than the nature of the subject matter and the beneficiaries.
On the other hand, a conventional trust means one “where there is a separation of legal and beneficial ownership” of the trustee and beneficiary. For example, if the disputed land is subject to a private trust of land where there are future beneficiaries – a ‘squatter’ cannot be considered to be in adverse possession of it.
In this case, the appeal court concluded that the provision in the 2002 Act did not extend to land within a deceased's estate that is held on statutory trust in the estate administration.Mrs Begum’s claim could therefore continue against the PRs.
What does this mean?
If you're involved in a property dispute it is important to consider taking early legal advice before taking any further steps. We’re experienced in helping the parties resolve issues early to avoid costly litigation, but if court action becomes necessary we will robustly support you to protect your interests.
For specialist advice on property litigation, get in touch with Kirsten Bridgewater by emailing kirsten.bridgewater@mfgsolicitors.com, or calling us on 01905 610410.
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