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Boundary Claims – the torturous problem!
If you want to claim some land that is missing from your deeds (your “title”) there is an issue you must deal with to succeed. The Human Rights Act 1998 – incorporating the European Convention on Human Rights (ECHR) into UK law, in particular Article 1 of Protocol 1 (“A1P1”): the right to peaceful enjoyment of possessions – not yours however, it is the trespassers’ right which you must overcome…
This 1998 law had a profound impact on adverse possession (squatting) law, especially against registered land, and led directly to the Land Registration Act 2002, which came into force on 13 October 2003. The old rules of adverse possession and the Limitation Act 1980 and the Land Registration Act 1925 were seen as incompatible with The Human Rights Act:
- If a squatter adversely possessed land for 12 years, the registered owner was automatically barred from recovering it.
- The squatter could apply to be registered as proprietor.
- THIS WAS THE IMPORTANT POINT. It did not matter if the squatter knew that they did not own the land! They could openly squat knowing full well it belonged to someone else, and still extinguish the owner’s title after 12 years.
This was challenged as a breach of A1P1 in cases such as …
JA Pye (Oxford) Ltd v United Kingdom (2007) – the famous “Pye case”. The Pye case and the European Court’s initial view
The government brought in a new law – the wonderful (!) Land Registration Act 2002 which applied from 13 October 2003. We’re concerned with Schedule 6
For registered land (which is now >90% of England & Wales):
Claimants must now satisfy one of three tests to kick out the squatter, starting from the date of 13 October 2003. The ten (or 12) year period of adverse possession should comply with the following:
(1) It would be unconscionable because of an estoppel for the owner to displace the squatter (e.g. proprietary estoppel). – This is vague and no one genuinely understands what it means. If you’re making the claim, you can add it in and hope the for best!
(2) The squatter is for some other reason entitled to be registered (e.g. he actually has a claim under a will or contract).
(3) “Reasonable belief”: the claimant reasonably believed the land belonged to him for the last 10 years ending on the date of the claim (typical “my fence was in the wrong place” neighbour disputes). ‘ending on the date of the claim‘ is a pit fall – as once you find out you don’t own the land, on a strict interpretation of these words, you can no longer claim – but you would only claim if you don’t know! i.e. it was catch 22 – but see below
The Hack
If you’re making an adverse possession claim, there’s nothing to stop you going back before the 13 October 2003 to get your 12 years possession i.e. get evidence from BEFORE THE RULES CHANGED… If you can get evidence which predates the rule change by 12 years, you can claim today even if you now know that you do not own the land.
Another rare example of the “reasonable belief” exception actually succeeding is Brown v Ridley [2022] UKUT 224 (LC).
The Upper Tribunal allowed a squatter’s claim where, for the entire 10-year period, he had reasonably (but mistakenly) believed that a strip of land formed part of his registered garden because the seller’s plans, the Land Registry title plan, and physical features on the ground had all indicated that the boundary lay further out than it really did. Crucially – the application must be made reasonably quickly AFTER you find the defect or you will lose the right to get the land back entirely.
Importantly, the Tribunal stressed that the belief must be both genuinely held and objectively reasonable to a person in the squatter’s position, and it must have subsisted for the full 10 years of adverse possession. Once the squatter becomes aware (or would have become aware, had he made reasonable inquiries) that the land does not belong to him, the reasonable-belief exception is no longer available for any subsequent period.