Key points

  • It may be possible for a person to claim adverse possession over land registered in his or her own name
  • This can assist if there has been an error in recording the title at the Land Registry

Parshall v Bryans

The judge said in the introduction to Parshall v Bryans that the significance of the case "will be apparent to any car owning resident of SW3".

The appellants owned no. 29 Milner Street, which they bought in 2006. The area of land in dispute had been used for car parking by their neighbours at no. 31 for many years, going back to before no. 31 was bought by the respondents in 1986. However, the land in dispute had been included in the original conveyance of no. 29 in 1904, and was included in the registered title for that property when it was first registered that same year.

No. 31 was not registered until 1980. Unfortunately, at that time the disputed area of land was also included in the new title created for no. 31, with Land Registry not noticing the overlap. This changed when the title plan was computerised in 2000, and the land was excluded from the title of no. 29. In 2008, the appellants applied to the Land Registry for rectification of the title plan to reverse this change. The owner of no. 31 objected, and the application was referred to the Land Registry adjudicator.

The adjudicator found that the disputed land formed part of no. 29, and was prepared to order that that title should be rectified to include it. However, the respondents then argued that they had acquired title to the area of land by adverse possession. The adjudicator accepted this argument. The owners of no. 29 appealed to the High Court.

Decision

The adverse possession claim was based on 12 years' use prior to the Land Registration Act 2002 coming into force. Such a claim is founded on section 15(1) of the Limitation Act 1980. Under section 15, a squatter must show that the owner's right to recover the land is time-barred, by virtue of 12 years' adverse possession by the squatter. The difficulty in the case was how a right of action to recover the land could have arisen against no. 31 at all, given that no. 31 was registered with absolute title to the land. If no such right of action could have arisen, then the respondents could not rely on section 15(1).

The court noted that there was no legal basis for the registration of the disputed land in the respondents' title. It concluded that, in deciding whether there was a right of action for the appellants to recover the land, the registered but rectifiable title of the respondents had to be ignored, and could not be invoked (paradoxically by the appellants) to legitimate the respondents' acts of possession.

Relying on previous case law, the court held that an erroneously registered owner of land holds subject to the rights of the erroneously de-registered owner. The latter could, as beneficial owner, and with a better right to possession, sue for trespass. The court therefore ruled that the requirements of section 15(1) of the Limitation Act 1980 were satisfied, and the respondents had acquired ownership by adverse possession.

Things to consider

The court's reasoning in this case is not easy to reconcile with the land registration legislation. It is submitted that the same result could have been achieved instead by applying the general boundaries rule. The general boundaries rule provides that the boundary of a registered estate as shown on the title plan is a general boundary, unless it has been "determined" in accordance with a rarely used Land Registry procedure. A general boundary does not determine the exact line of the boundary.

On that basis, although the disputed land was shown from 1980 as being within the respondents' title, in reality the legal ownership remained where it always had been; with the appellants. Since the appellants had, at all times, been the owners of the disputed land, the respondents' possession of that land was indeed adverse. This same argument was used successfully in Milsum v Gorman to enable a claimant to demonstrate that it had acquired an easement by prescription over land which was registered in its own name.

Another point to note about Parshall v Bryans is that the adverse possession claim was based on a chain which the respondents had fitted down the outside of the land. The chain was connected to a concrete bollard at each end and could be locked with a padlock. It was not clear that, in the absence of the chain, merely parking the car would have been enough in order to establish adverse possession.

The respondents had argued, as an alternative to adverse possession, that they had acquired an easement by prescription over the car parking space, by virtue of use for more than 20 years. The court did not, in the end, need to rule on this point. However, it did note that whether a right to park a car is capable of being an easement has been "a matter of acute debate in recent times" (see e.g. Moncrieff v Jamieson). The appellants did not dispute that such a right could be a valid legal easement. However, the court stated that it:

"would have had significant reservations about ordering the alteration of the register to include as an easement an arrangement which may not amount to one as a matter of law, merely because the servient owner does not contest the proposition".