Adverse possession: reasonable belief must be based on evidence

A reasonable belief of ownership of land for at least 10 years ending on the date of an application for registration of title by adverse possession under schedule 6(5) of the Land Registration Act 2002 depends on the evidence. It is not for the tribunal to hypothesise as to what “probably” happened. The Upper Tribunal (Lands Chamber) has considered this issue, allowing an appeal in Brian Larman v The estate of Gerald Ernest Linzell and others [2024] UKUT 57 (LC). In June 2019, the appellant applied for registration of title to a small triangle of land, entirely enclosed within his garden, of which he claimed to have been in adverse possession since he bought the property, High Elms, in 1998. High Elms originally formed part of Sutton Hall Farm, owned by the respondents, the registered proprietors of the land. They objected to the application requiring it to be dealt with under schedule 6(5) of the 2002 Act. The appellant argued that the third condition in schedule 6(5) applied: the triangle lay on the boundary of his property and he had believed for at least 10 years of the period of adverse possession ending on the date of the application that it was his. He asserted that it was only in 2018 when he applied to register title to another part of High Elms that he discovered that he did not have title to the disputed triangle. The FTT found that the appellant had been in adverse possession of the triangle since at least 2003 but that his reasonable belief ended in 2007 when his solicitors obtained a search of the register of High Elms, which stated that part of the property was unregistered. The FTT hypothesised as to the reasons for the search and the advice provided to the appellant and his wife, concluding that they must have discovered at that time that they did not have title to the disputed triangle. The tribunal permitted the appellant to adduce new evidence from his solicitor as to the purpose of the 2007 search – part of a home information pack for a sale which did not proceed – because, while in theory the evidence could have been obtained for the FTT hearing, no one with reasonable diligence would have seen the need for it. There was no evidence that the appellant had seen the 2007 search, that he was advised about adverse possession in 2007 or that anything happened in 2007 to change his belief that the disputed triangle was his. He was entitled to be registered as proprietor of the disputed triangle. Louise Clark is a property law consultant and mediator