Boundary issues and adverse possession

A recent case shows how a registered title plan is not definitive as to a boundary line, warns Louise Clark. Key points Unless the boundary has been fixed, a registered title plan shows general boundaries only  General boundaries are subject to adverse possession claims In Clapham and others v Narga [2024] EWCA Civ 1388; [2024] PLSCS 197, the Court of Appeal has determined that the effect of 12 years’ adverse possession of unregistered land is to redraw the boundary between adjoining properties to reflect the position on the ground, irrespective of the title plan. Background The case concerned the location of the boundary between the claimants’ properties at 24, 25 and 26 The Green, Thrussington, Leicestershire, and the defendant’s property, Brook Barn. Until the late 1970s the properties were in common ownership. Brook Barn lay to the north of the claimants’ properties and was separated from them by a brook, on the north side of which was a steep bank with a fence at the top. The fence had been in place since the 1970s. The title to Brook Barn was registered in March 2003. The defendant acquired Brook Barn in May 2020. The title plan showed the boundary with the claimants’ properties lying to the south of the brook. The claimants asserted title to the brook and the land up to the fence opposite their respective properties. Trees had been planted to screen off the land and it had been used as part of their gardens since the 1980s. Limitation Under section 15 of the Limitation Act 1980, no action shall be brought to recover any land after the expiration of 12 years from the date on which the right of action accrued. The Land Registration Act 2002, which came into force on 13 October 2003, disapplied this provision and implemented a new regime – under Schedule 6 – for registered land. However, for unregistered land, adverse possession for 12 years extinguishes the landowner’s title. Land registration The 2002 Act simplified and modernised the process of registering land in England and Wales. Under section 29, completion of a registrable disposition of a registered estate, if made for valuable consideration, postpones to the registered interest any interest not protected at the time of registration. Under Schedule 3, protected interests include the interest of anyone in actual occupation, save where the occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition and the purchaser had no knowledge of it. Those provisions of the 1925 Act not reproduced in the 2002 Act included section 70(1)(f), whereby rights acquired or in the course of being acquired under the Limitation Acts were overriding interests, and section 75, where land in adverse possession was to be held on trust for the adverse possessor. The transitional provisions in Schedule 12 included that, where title to land was held on trust under section 75, the beneficiary was entitled to be registered as proprietor of the land for a period of three years. Boundaries Section 60 of the 2002 Act provides that, unless determined, the boundary of a registered estate is a general boundary which does not determine the exact line of the boundary. Whether a dispute is a boundary dispute or a property dispute depends on the relative size of the disputed land and its importance to the registered proprietor. The decision The judge concluded that the claimants had all acquired title to the land up to the fence by adverse possession by October 2000, so extinguishing title to the land before the registration of title to Brook Barn. Therefore, on registration, the proprietor of Brook Barn held the title to the disputed land as trustee for the claimants under section 75 of the 1925 Act. The claimants were entitled to be registered as proprietors of the disputed land when the 2002 Act came into force. Those rights ranked as overriding interests for three years, after which the claimants had to be in actual occupation of the disputed land and such occupation had to be obvious on a reasonably careful inspection. The judge decided that, while the claimants were in occupation, such occupation was not obvious when the defendant purchased. The claims failed and the defendant acquired title free of the claimants’ interests. The appeal On the claimants’ second appeal, the Court of Appeal decided that the general boundaries rule was relevant and that, when considering the position of a boundary, there was no good reason for disregarding adverse possession claims. The area of land in dispute – between two and five metres wide – was small compared with the combined property area, and so the dispute was a boundary dispute rather than a property one. The exact location of the boundary between the claimants’ properties and Brook Barn had to be determined by analysing pre-registration documents and the position on the ground at the time of first registration. The judges below were also mistaken over section 75 of the 1925 Act. On its wording, section 75 dealt with the future, not the past, so it only operated when limitation expired after registration of the land. It could also only operate if the disputed land fell within the registered title to Brook Barn. Long before 2003, the claimants had acquired title by adverse possession to their respective parts of the disputed land, and so the boundary between the claimants’ properties and Brook Barn lay along the line of the fence. Consequently, the disputed land was not included in registration of the title to Brook Barn in March 2003 and could not have been included in the transfer to the defendant in May 2020. The defendant had no claim to the disputed land. Louise Clark is a property law consultant and mediator Photo © Nick Tiemeyer/Unsplash