The sole issue for the Supreme Court was the construction of paragraph 5(4)(c), which states “for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and”. The italicised words were those in issue.
The parties each contended for a different reading of the relevant words. The Supreme Court referred to “Construction A” and “Construction B”. Under A, the period of reasonable belief must be a period of at least ten years ending on the date of the application. Under B, the period of reasonable belief can be any period of at least ten years within the potentially longer period of adverse possession which ends on the date of the application.
The Supreme Court unanimously found in favour of Construction B for a number of reasons. In particular, it was noted that the only real purpose of Construction A, beyond Construction B, would be the mechanical reduction of the boundary condition to “one which is little more than illusory”. The rationale for this comment was that an application for registration of title based on adverse possession “is not something which can be put together in an afternoon” and would require legal advice and careful drafting. The Supreme Court did not accept the argument that Construction A could be saved by the de minimis principle, stating, “By no stretch of the imagination does a period of one or two months answer the description of de minimis”, that being the minimum period of time reasonably required to prepare an application for registration.
Following the Upper Tribunal decision, there had been concern amongst practitioners that the boundary condition was effectively defunct. Its utility has been preserved by the recent judgment. Further, the Supreme Court noted that, despite the doctrine of adverse possession having been somewhat curtailed by the Land Registration Act 2002, “Boundaries may therefore be said to be matters where adverse possession has the most useful continuing role to play”.
Written by Antonia Halker
18 March 2025