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Tom Morris acted for the successful appellants in adverse possession appeal to the Court of Appeal.
The Court of Appeal handed down judgment on 11th November 2024 in Clapham v Narga [2024] EWCA Civ 1388 – reported by the Daily Mail as a four-year battle between potter and painter. The Court of Appeal allowed the appeal against the decision of Mr Justice Leech, who dismissed a first appeal against HHJ Richard Hedley’s order dismissing the appellants’ adverse possession claims following a five-day trial in the Leicester County Court in 2022. Each giving a judgment, Newey, Nugee and Peter Jackson LJJ held that both judges below had failed to understand the effect of the ‘general boundaries’ rule under the Land Registration Act 2002 (and its predecessor, the Land Registration Act 1925) and that both had wrongly interpreted section 75 of the 1925 Act. The judgment can be found here.
The Appellants lived in adjoining properties in Thrussington, Leicestershire (and had done for decades). Their properties benefited from gardens to the north, at the bottom of which was a brook. Running along the top of the north bank of that brook was a fence. HHJ Hedley found that the appellants had obtained title to the land up to the fence by adverse possession decades before. In 2020, the Respondent – Ms Dee Narga – purchased the property to the north of the brook – Brook Barn. She asserted that her Land Registry title plan clearly showed that the boundary of her property ran to the south of the brook and through the Appellants gardens. After exchanging correspondence with the Appellants and their solicitors, Ms Narga rejected their contention that the boundary was the fence and had been for decades. She demanded that they pay her a licence fee for using the northern parts of their gardens, and then unilaterally erected a fence through the Appellants’ gardens and began clearing the land on both banks of the brook.
The Appellants issued proceedings in September 2020 and, in December, obtained an interim injunction restraining Ms Narga from doing anything further on the land south of the fence. The trial came before HH Judge Hedley in March 2022. He found that the Appellants had all been in adverse possession of the north bank of the brook for decades and that they had extinguished the title to that land under the Limitation Act 1980 before the freehold estate in Brook Barn was first registered in March 2003 – just before the Land Registration Act 2002 came into force.
However, HH Judge Hedley (accepting the submissions of Ms Narga) found that section 75 of the Land Registration Act 1925 was engaged when title to Brook Barn was first registered, so that the title to north bank of the brook was held on trust for the appellants by the registered proprietor of Brook Barn. He then held that the subsequent registered dispositions of Brook Barn under the 2002 Act destroyed the appellants’ possessory title, since: (i) their occupation of the disputed land would not have been obvious on a reasonable careful inspection; and (ii) their interest in the north bank therefore did not override the registered disposition of Brook Barn to Ms Narga. He dismissed the Appellants’ claim for a declaration that they were entitled to be registered as the proprietors of an estate in that land. On a first appeal, Mr Justice Leech agreed with HHJ Hedley’s analysis of the law and dismissed the Appellants’ appeal.
The Court of Appeal’s judgment makes clear that the Appellants’ submissions were right all along and that the judges below were wrong to reject them. In essence: (1) the ‘general boundaries’ rule in section 60 of the 2002 Act (and formerly rule 278 of the Land Registration Rules 1925) operated on the first registration of Brook Barn; (2) that meant that registration was only conclusive as to who owned Brook Barn, but not as to the extent of what they owned; (3) even though Ms Narga’s title plan showed the boundary of her property following the south bank of the brook, that plan was irrelevant to where the boundary lay; (4) the line of the boundary had to be determined by considering pre-registration deeds and the position on the ground – i.e. by looking ‘underneath’ the register.
The Respondent sought to argue that the dispute was a ‘property dispute’ rather than a ‘boundary dispute’, so that the ‘general boundaries’ rule was irrelevant and so that the Respondent could rely on the filed plan. Those submissions were rejected. The Court of Appeal followed the reasoning in Lee v Barrey [1957] Ch 251 and Drake v Fripp [2012] 1 P&CR 4. The question is whether a registered proprietor ‘got the wrong property by the title plan’ or whether the plan purported to give the right property, but without indicating its boundaries with sufficient precision. Newey LJ reasoned as follows at [46].
“I find it hard to see how the position could be otherwise. It would seem to make no sense for a title plan which avowedly portrays only a general boundary to be deemed to determine the precise extent to which land claimed by adverse possession is included in the title. Title plans do not pretend to be accurate, and according them significance in the way for which Mr Gale contended could engender just the sorts of mischief which the Land Transfer commission identified in 1870 and which the general boundaries rule has since sought to avoid.”
Nugee LJ put it as follows at [71] and [72].
“The purpose of a filed plan is to identify the property concerned, namely Brook Barn, not to identify where its boundaries are. The whole point of the general boundaries rule, formerly found in rule 278 of the 1925 Rules and now found in s. 60 LRA 2002, is that the filed plan does not determine the exact line of the boundary. As Newey LJ has explained, that was a principle first introduced in 1875 precisely to avoid the disputes that had bedevilled registration under the 1862 Act.
“So how does one determine in a case such as this where the boundary actually is? I think the answer has to be by looking at where the boundary was when the title was first registered, that is here on 19 March 2003.”
Referring to the “great virtues of the doctrine of adverse possession as it applied to unregistered land”, Nugee LJ observed that:
“once neighbours had been in undisputed possession of their respective properties for 12 years, that gave them ownership of the land they each possessed, with the result that the boundary between their lands would follow the de facto position on the ground without the need for anyone to go back to the historic conveyances by which their properties were first separated. The practical effect was to favour the claims of those who had long been in peaceful possession of land over those who had, or arguably had, a mere paper title. That I think tended to reduce the number of boundary disputes which all too often arouse great passions usually cost far more than the property in issue is worth”.
The Court of Appeal also found that both judges below “where mistaken in thinking that section 75 of the LRA 1925 applied where title to the land in question had been extinguished before it was first registered”: both because the section operated only where limitation expired after an estate was registered and because section 75 could not operate in the case of land within the scope of the general boundaries rule. Ms Narga therefore never acquired any title to the north bank of the brook, because her vendor had no title to convey to her.
Peter Jackson LJ agreed with both judgments. For his part, he observed as follows. “The combined legal costs of the trial and two appeals arising from this unfortunate boundary dispute now exceed £300,000. How did the dispute come about?” The answer, he noted, was that Ms Narga had failed to consult the appellants about the boundaries before purchasing Brook Barn. “Had she done so, this boundary dispute may not have arisen, and much trouble and expense might have been avoided”.
The judgments of Newey and Nugee LJJ elucidate some basic and important principles of the law of land registration and limitation. They make clear that adverse possession continues to play an important role in the law of boundaries, despite the restrictions on the doctrine introduced by the Land Registration Act 2002. Though they affirm the wide scope of the general boundaries rule, they also leave open the possibility that, in the case of a true ‘property dispute’, where a title plan shows so clearly that a piece of land has been included in a particular registered title, the effect of registration and of registered dispositions might be that a title acquired by adverse possession long before can be defeated.
Tom Morris acted for the successful Appellants, instructed by Crane and Walton LLP.
