Key point

  • Save in certain limited circumstances, a person who wishes to claim that he or she has acquired title to registered land by adverse possession can only do so by making an application to the Land Registry, not the court

In Swan Housing Association Limited v Gill, a housing association had let a ground floor flat to a tenant. The tenant had a right of way over an adjacent passage, in common with others who were entitled to use it. The tenant installed a lock on the gate to the passageway, blocking access for other residents, and put up some greenhouses on it.

The housing association applied for an anti-social behaviour injunction, under ss153A and 153D of the Housing Act 1996. Before that application came before the court, the tenant applied to the Land Registry claiming to be entitled to be registered as proprietor of the passageway by virtue of adverse possession. Under the Land Registration Act 2002, it is possible to make such an application after ten years' adverse possession of registered land.

The County Court adjourned the trial in order that the freeholders of the neighbouring properties could be joined as parties, with a view to the court determining the issue of possession with everyone who was interested present. It ordered that the Land Registry be informed of the court proceedings.

On the tenant's appeal, the High Court ruled that, under the regime introduced by the 2002 Act, in order to acquire effective title by adverse possession it is necessary to make an application to the Land Registry. Unless and until that happens, no such title can be acquired and there is nothing for the court to adjudicate on.

This is different from the position prior to the Act coming into force in 2003 (and which remains applicable to unregistered land), where 12 years' adverse possession would in and of itself give rise to a right to be registered as proprietor. In these circumstances the court had a function in determining whether a person had completed the requisite period of adverse possession.

The High Court held that, in the circumstances of this case, the County Court should have acknowledged that it was not appropriate to determine the question of adverse possession. The statutory procedure should have been allowed to take its course. The court proceedings could then be determined in the light of the outcome of the application to the Land Registry. The appeal was allowed.

Things to consider

To use the words of the High Court, post-2003 "The means of acquiring a title by adverse possession has been firmly placed in the hands of the Land Registry" - at least as far as registered land is concerned. The judge ruled that "It is not for the court to arrogate to itself the functions now to be discharged, in the first instance, by the Land Registry".

A person who wishes to claim title by adverse possession of registered land must therefore use the statutory mechanism in the 2002 Act and make an application to the Land Registry, rather than to the court. In the event of a dispute the application may be referred to the Land Registry adjudicator for determination (from where there is a right of appeal to the High Court).

The case is also of interest because of its interpretation of paragraph 1(3) of Schedule 6 to the Act (which is the schedule which deals with adverse possession). This paragraph provides that a person may not apply to be registered on the basis of adverse possession if they are "a defendant in proceedings which involve asserting a right to possession of the land".

Its objective is to enable a registered proprietor whose title is threatened by a squatter to take possession proceedings against the squatter without the risk of having to fend off an application for registration at the same time.

The housing association argued that this paragraph was engaged in this case, such that the tenant was not entitled to make an application to the Land Registry. The court disagreed. The proceedings which the housing association had instigated against the tenant in this case were for an anti-social behaviour injunction under the Housing Act. It was no part of the housing association's case that it was seeking possession of the property.

In a normal action for breach of an easement against the beneficiary of the right, it is arguable that the grantor of the easement is asserting its right to possession. This is the basis on which the grantor claims to be able to prevent the beneficiary (who of necessity has a lesser right) from exceeding the rights granted to it.

It seems that it was the particular provisions of the Housing Act relied on in this case which led the court to the conclusion that paragraph 1(3) did not apply, and the tenant was therefore not prohibited from making his application to the Land Registry.