Once described as an English national pastime, cases on adverse possession have been increasingly rare since the law was changed in 2002. However, we still appear to love a good boundary dispute.
The case of Kenneth and Nalda Rowlands v Gregory and Susan Bishop [2023] concerns adverse possession and the applicants' reasonable belief that the land belonged to them.
The applicants had been in adverse possession of part of the respondents' registered title (part of their garden) since 1996. They had applied to register the land within their own title. Since 2002, it has not been sufficient just to show that one has been in adverse possession of land for 12 years where the land in question is registered. Showing a period of occupation is a gateway requirement for applying to be registered with possessory title, but the registered owner then has an opportunity to object. If an objection is raised, the application can only succeed if certain conditions are made out.
In this case, the respondents had objected and the First Tier Tribunal had upheld the objection. The parties appear to have proceeded on the basis that this was essentially a boundary dispute, and as such the specific conditions that had needed to be satisfied in this case were that:
(i) The land in question was adjacent to the applicants' land;
(ii) The exact line of the boundary had not been determined (by a statutory process);
(iii) For at least 10 years of the period of adverse possession ending in the application date the applicants reasonably believed the land belonged to them; and
(iv) The estate to which the application relates was registered more than one year prior to the application.
The FTT upheld all of these conditions, apart from the third. The FTT decided that the applicants did not have a reasonable belief of ownership and were lying. The issue centred around the fact that when the applicants had bought their property in 1996, they had been told that there had been some arrangement with the predecessor in title to the respondents, by which the area of disputed land had been fenced into the applicants' property. There was no evidence as to this arrangement, which was unlikely to be legally enforceable. The FTT decided that the applicants could not therefore have reasonably believed the land to be their own.
This finding was appealed. This, in itself, is unusual as findings of credibility are rarely interfered with by an appellate court. This is because, unlike the court below, the appellate court does not have the witnesses in front of them. However, an appeal is possible where a finding, particularly of dishonesty, is inconsistent with other findings or is insufficiently explained by the court below.
On appeal, the Upper Tribunal found that the FTT decision that the first applicant was lying when he said he believed he owned the land was irrational, unfair and based upon flimsy grounds.
In terms of the unwritten boundary agreement between the predecessor in title, the Upper Tribunal found that even if the agreement had no legal effect, there is no legal principle that it could not found a reasonable belief. Indeed, it was said, why would the law on adverse possession be required if there was a requirement that a reasonable belief in ownership be legally correct?
This case is one of those rare exceptions where an appellate tribunal will interfere with findings of fact made by a lower tribunal. It happens, but not often.
