Precedent before Principle: Adverse Possession, “Reasonable Belief” and Statutory Interpretation of the Land Registration Act 2002 Sch.6 para.5(4)

Bevan, Chris

Abstract

There are few areas of the adverse possession regime under the Land Registration Act 2002 still requiring clarification. One outstanding and live issue, however, is Schedule 6 paragraph 5(4)(c). Megarry & Wade note this as one aspect that, ‘remains the subject of uncertainty.’ Paragraph 5(4)(c) was precisely the provision under scrutiny in the recent decision in Brown v Ridley [2024] heard by the Upper Tribunal (Lands Chamber). Brown v Ridley offers further and important clarification, if not the final word, on how we are to understand Schedule 6 paragraph 5(4)(c) of the LRA 2002 and on what President of the Lands Chamber, Edwin Johnson J, presiding, described as, ‘a short but interesting’ point of statutory construction. The central question for the Upper Tribunal was what was meant by the phrase ‘at least ten years of the period of adverse possession ending on the date of the application’ under paragraph 5(4)(c). Paragraph 5(4)(c) was discussed by the Court of Appeal in Zarb v Parry [2011] and in IAM Group Plc v Chowdrey [2012] but how would the Upper Tribunal respond when called upon to revisit the issue and urged to depart from the approach of the Court of Appeal? The analysis here proceeds in 4 parts. The first part explores Schedule 6 paragraph 5(4)(c) and its interpretation in the Court of Appeal in Zarb and IAM. The second part turns its focus to Brown v Ridley itself examining the issues in the case, the judgments in the First Tier Tribunal and on appeal to the Upper Tribunal, and the President of the Lands Chamber’s view on the correct construction of paragraph 5(4)(c). Finally, with the case potentially headed for appeal to the Supreme Court, reflections are offered on the approach, this author argues, the Supreme Court should be persuaded to adopt should it come to determine construction of this important provision on adverse possession.

• Journal Article Type: Article
• Acceptance Date: May 24, 2024
• Publication Date: 2024
• Deposit Date: Jun 7, 2024
• Publicly Available Date: Jul 12, 2024
• Journal: The Conveyancer and Property Lawyer
• Print ISSN: 0010-8200
• Publisher: Sweet and Maxwell
• Peer Reviewed: Peer Reviewed
• Volume: 88
• Issue: 2
• Pages: 203-217
• Public URL: https://durham-repository.worktribe.com/output/2475327