Clapham and others v Narga

Property – Land registration – Adverse possession – Dispute arising over title to strips of land and location of boundary between properties – Appellants seeking declaration of entitlement to disputed land by adverse possession – Whether first registration and transfer of land affecting appellants’ rights – Whether appellants entitled to be registered as proprietors of disputed land – Appeal allowed The appellants owned three adjoining properties on The Green, Thrussington, Leicestershire, to the south of a brook, running from west to east, with steep slopes on either side. In 2020, the respondent purchased Brook Barn, to the north of the appellants’ properties. A dispute arose concerning land between the northern edge of the south bank of the brook and a fence which stood at the top of the northern slope. The county court held that the true boundary was the south bank of the brook. The appellants had acquired the land up to the fence by adverse possession (sometime before 2002) under section 15 of the Limitation Act 1980. When the respondent’s property was first registered in 2003 (the Land Registration Act 2002 not yet having come into force), a statutory trust was created under section 75 of the Land Registration Act 1925, under which the respondent’s predecessor held the disputed land on trust for the appellants. Under paragraph 15 of schedule 12 to the 2002 Act, the appellants’ rights ranked as overriding interests for three years. After the expiry of that period, their rights remained protected only if, pursuant to section 29(2) and paragraph 2(c) of schedule 3 to the 2002 Act, they were in obvious actual occupation of the disputed land, on a reasonably careful inspection, when the respondent purchased her property. Since the appellants’ occupation was not so obvious, their claim was dismissed. The appellants’ appeal against that decision was dismissed: [2023] EWHC 3337 (Ch). The appellants appealed. Held: The appeal was allowed. (1) Under rule 5 of the Land Registration Rules 2003, the property register of a registered estate had to contain “a description of the registered estate which in the case of a registered estate in land… must refer to a plan based on the Ordnance Survey map and known as the title plan”. However, the general boundaries rule for which rule 278 of the Land Registration Rules 1925 and, more recently, section 60 of the 2002 Act provided, meant that a title plan could not normally be taken to define the boundaries of land comprised in a registered title precisely. The title plan was deemed to indicate the general boundaries only and would not determine the exact line of the boundary. (2) Neither section 60 nor rule 278 contained any reference to adverse possession. What emerged from both provisions was that a title plan was not to be taken to show the boundaries accurately. If neighbouring owners differed as to where a boundary lay, the answer was to be found by reference to the other principles by which the extent of a person’s property was ascertained. The exercise might involve analysis of conveyances, transfers and other documentation, but there was no good reason for disregarding adverse possession claims. A title plan would not settle the exact location of a boundary regardless of whether it accorded with the paper title or had moved through adverse possession. In the present case, the respondent had been registered as proprietor of the right property; what was contentious was the property’s southern boundary. On that basis, what was shown on the title plan for Brook Barn could not be taken as a guide to whether that property encompassed the disputed land and could be of no significance in the context of the present appeal: Drake v Fripp [2012] 1 P&CR 4 followed. (3) The opening words of section 75 of the 1925 Act referred to how the Limitation Acts “shall apply to registered land”. If, however, land had been in adverse possession for 12 years before it was registered, extinction would have occurred pursuant to the Limitation Act 1980 in advance of registration and the Act would not obviously have had any role to play as regards “registered land”. The words “shall not be extinguished” pointed towards the material event (viz completion of 12 years’ adverse possession) happening in the future, when there was a “person registered as proprietor” with an estate in “registered land” capable of being extinguished. The section spoke of acquiring title “against any proprietor” which, in the context, must have referred to a person registered as proprietor, and there could be no such person until land was registered: St Marylebone Property Co Ltd v Fairweather [1963] AC 510 considered. In the present case, the judges below were mistaken in thinking that section 75 of the 1925 Act applied where title to the land in question had been extinguished before it was first registered. Section 75 could not avail the respondent unless her property, as registered, included the disputed land: there could be no question of the provision having caused the predecessor of hers, who was the first registered proprietor of the respondent’s land, to be a trustee of the disputed land unless it formed part of the “registered land” in respect of which they were registered as proprietor. (4) Notwithstanding its imperfections, the title plan in respect of Brook Barn could be said to depict the disputed land as within the scope of the title. However, in the light of the general boundaries rule, that did not mean that Brook Barn, as registered, in fact included the disputed land. Nor was there any other reason for the boundaries of the “registered land”, registered in the name of Brook Barn’s first registered proprietor, to have differed from the pre-existing boundaries. Since the appellants had acquired title to the disputed land by the time Brook Barn was first registered, its southern boundary would by then have been the fence. That being so, the land in respect of which the respondent’s predecessor became the first registered proprietor would likewise have stopped at the fence and so section 75 could not have applied to land south of it. Accordingly, section 75 did not apply in the present case both: because section 75 was inapplicable where first registration happened only after title had been extinguished by adverse possession; and because, having regard to the general boundaries rule, the land in respect of which the respondent’s predecessor became the first registered proprietor did not extend to the disputed land, to which the appellants had already acquired title by adverse possession. Tom Morris (instructed by Crane and Walton LLP) appeared for the appellants; Jonathan Gale (instructed by Gateley plc) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Clapham and others v Narga