Procedure in Applications for Adverse Possession of Registered Land

Claims of the demise of adverse possession applications  under the regime imposed by the Land Registration Act 2002 seem exaggerated and are continuing healthily in the form of applications to the Land Registry under Section 97 of Schedule 6 albeit in much  restricted circumstances.

The gateway requirement is set out in paragraph 1 of the Schedule which provides that:

(1)          [Subject to paragraph 16,] a person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application

Some solicitors for respondent landowners are being caught out because of a relaxed approach to the procedure. The Land Registry Practice Guide 4 summarises the procedure for commencement ( Form ADV1) and the different modes of Response (Form NAP).  Once the ADV1 application is accepted the Registrar is bound to send out notice to the proprietor of the estate who must under paragraph 3 respond requiring that the application to which the notice relates be dealt with under paragraph 5 if he wishes to oppose the application on particular grounds.

The Form NAP notices sent out by the Land Registry provide that the application must be dealt with under paragraph 5. Failure to complete the form properly ( eg  tick the right box)  or in time ( 65 days under LLR 189 and 190) has dire consequences  for the respondent landowner : Paragraph 4 states :

4       If an application under paragraph 1 is not required to be dealt with under paragraph 5, the applicant is entitled to be entered in the register as the new proprietor of the estate.

So it is vital at the stage of receiving the ADV1 to understand both the basis for the application and the applicability of paragraph 5 of Schedule 6  in order to know how to respond e g whether to simply object or to object and serve a Form NAP notice.

The three conditions of paragraph 5 have been the subject of much conjecture as to their scope and Condition 3 in particular poses a number of challenges:

The third condition is that the squatter has been in adverse possession of land adjacent to their own for at least 10 years under the mistaken but reasonable belief that they are the owner of it, the exact line of the boundary with this adjacent land has not been determined under section 60, LRA 2002 and the estate to which the application relates was registered more than a year prior to the date of the application.

This ‘satanic brew’ of boundary dispute and adverse possession is very familiar to practitioners under the old art, still extant for unregistered land. The question of reasonable belief remains of interest with the two Court of Appeal authorities of Zarb v Parry[2011] EWCA Civ 1306 , IAM Group plc v Chowdrey [2012] EWCA Civ 505 suggesting that reasonable belief is a subjective state of mind and applicants are not to be burdened with particular foresight or legal knowledge when applying the test. Further authority can be expected on the scope of this test.

 

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