The recent ruling in the case of Brown v Ridley has implications for both those seeking to secure land by way of adverse possession but also heralds the need for increased diligence from landowners.
What is Adverse Possession?
Adverse possession is an unusual area of law whereby an individual or company (any entity capable of legal standing) occupies land not belonging to themselves with the intention of possessing it as if it were their own.
For the purposes of this article, those seeking to claim land are referred to as ‘the possessor’.
The Land Registration Act 2002 (‘LRA 2002’) governs the criteria that a possessor must satisfy in order to dispossess the legal owner of their title.
The specific criteria which must be established by the possessor are;
- been in occupation for at least 10 years
- With the intention to possess
- With the reasonable belief that the land belonged to the possessor
- To the exclusion of the legal owner
- Without the consent or permission of the legal owner
If these criteria are satisfied, then the possessor may lodge an Application with the Land Registry to be registered as the legal owner of the land.
Each case will be assessed on its own merits with the Land Registry adopting a ‘hands on approach’ in attending site and considering historical information available to them.
Reasonable Belief
Paragraph 5 (4) (c) of Schedule 6 LRA 2002 states (emphasis added):
“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’
The strict construction of the wording ‘ending on the date of the application’ meant that it was largely understood, by practitioners, to mean that the period of reasonable belief had to be continuous up until the date of the application.
The case of Zarb v Parry (2011) had crystalised this understanding.
The case of Ridley v Brown challenged the commonly held construction, and the Supreme Court considered if the wording should be applied to allow the reasonable belief of ownership to be held for any 10 year period during the adverse possession window.
The Supreme Court handed down their decision on 26 February 2025 and deviated from the view previously held by practitioners.
The decision in Ridley v Brown is that the 10 year period of reasonable belief can be held for any 10 years of the period of adverse possession being claimed. The belief does not have to continue up until the date of the application.
Practical Implications
This decision has direct implications for both those possessing land and those who own land which may be subject to adverse possession.
Previously, there was the opportunity for a landowner to challenge an application by showing that the 10-year belief in ownership had ceased at some point prior to the application being lodged, and that at the time of the application being made that reasonable belief had ceased.
Now, the task for the landowner has shifted. A landowner now has to prevent a period of 10 years from accruing.
From a practical perspective landowners must now be much more diligent with regard to land management and be alive to potential occupancies that could amount to adverse possession.
Landowners cannot now afford to rest on their laurels. Whereas, previously, an isolated ‘warning letter’ citing ownership may have been enough to assert ownership and to put a stop to an application being advanced, it will not now be sufficient.
Land ownership must be persistently established, demonstrated and asserted.
Landowners must now be proactive with their land and boundaries. Evidence of each and every occurrence of establishing ownership must be kept and so as to disrupt any suggestions of a ten year of reasonable belief having accrued.
The test to establish reasonable belief is now a much easier threshold to achieve.
There is no requirement for a possessor to be proactive or prompt with escalating a claim for ownership.
A ‘wait and see’ approach can be adopted if appropriate to the case specific circumstances.
Evidence of belief is fundamental, and so legal advice is essential to ensure that enough is being doing to convey that a reasonable belief exists.
The Supreme Court decision makes it more important than ever that a physical inspection prior to purchase is essential.
Boundary positioning and any adverse occupation needs to be checked in a ‘real’ sense as the title documents or replies during the conveyancing process may fall short in identifying a possessor.
Future and current landowners need to be alive to the position on the ground and not rely on paper-based assurances.
The Supreme Court decision may have injected some clarity into the position but it has also heightened the need for vigilance from landowners in protecting their assets from a potential claim for adverse possession.
If you are concerned about how this decision might affect your land ownership or occupation then contact us today for tailored advice on safeguarding your property.