Adverse Possession - an update to the 10 year rule.

Update

If you have read our previous blogs, you may recall that we discussed the mind boggling decision made by the Upper Tribunal in Brown v Ridley. By way of a quick recap, one of the grounds you can rely upon when claiming adverse possession of land is that you have occupied the land for at least 10 years, and you reasonably believed that you owned the land.

Clearly at some point, this reasonable belief must come to an end when you realise the land is not in fact yours and belongs to someone else. This is when you might consider making an application for adverse possession to protect your occupation of the land. In Brown v Ridley, the Courts held that an applicant must reasonably believe they own the land right up to the moment that they make the adverse possession application.

This decision left both legal professionals and property owners with minds boggled.

To illustrate the point: on Monday you wake up and realise that Mr Smith owns the land that you have occupied for 10 years and which, until Monday, you thought you owned. On Tuesday, you decide to make an application for adverse possession. According to Brown v Ridley, you’ve lost your chance. At the time of making the application on the Tuesday, you already knew you didn’t own the land. You should have made it on Monday.

But on Monday you had no idea the land was owned by Mr Smith. If you thought you owned it on Monday, why on earth would you make an application for adverse possession?

This was completely daft. Something had to change. And it did.

The Supreme Court’s take on the mind boggle

Thankfully, the decision in Brown v Ridley was appealed and heard by the Supreme Court earlier this year.

The Supreme Court reviewed the 10 year reasonable belief rule and found they could look at the interpretation of the statutory requirement in one of two ways:

Option A – the 10 year period of reasonable belief must end on the precise date on which an application for adverse possession is made (as was originally decided in the wacky case of Brown v Ridley)

Option B – the 10 year period of reasonable belief can refer to any 10 year period in which the applicants have occupied the land.

The mind boggles no more

The Supreme Court opted to apply option B. The absurdity of having to believe you are the owner of the land right up until the date of the application has been done away with.

The Supreme Court saw quite clearly the practical restraints that option A would have imposed. It would be virtually impossible for any applicant to make an adverse possession claim the instant the realised they did not own the land in question.

Now an application can use any qualifying 10 year period of reasonable belief, which makes it easier for applicants to bring a claim.

This ruling does serve as a warning to land owners that they will need to be vigilant in checking their property boundaries and ensuring a third party isn’t occupying their land. If someone has done so, unchecked, for 10 years, they may be able to claim adverse possession.

If you have any question in relation to adverse possession or the protection of your property rights, please contact Joanna Lingard in Hughes Paddison’s Property Litigation Team at jli@hughes-paddison.co.uk