No trust, no problem: clarity from Court of Appeal on adverse possession when no will from landowner

A recent case in The Court of Appeal has determined that in certain circumstances, land where the owner has passed away intestate, remains capable of being acquired by adverse possession.

The Court found land comprising part of the Estate of a dead person is not subject to a trust within the meaning of Paragraph 12 of Schedule 6 to the Land Registration Act 2002 (“LRA”), notwithstanding that a statutory trust arises under Section 33 of the Administration of Estates Act 1925. Adverse possession occurs when an individual or a business is occupying property or land and operating as if the owner (despite not owning it on paper) and can end up becoming entitled to proper legal ownership.

The case: Nazir-v-Begum [2024] EWHC 378

The disputed land in the case of Nazir-v-Begum [2024] EWHC 378 was originally acquired by the appellant’s father in 1980 who eventually died in 2010.  Following the grant of letters of administration, the Appellant became the owner of the disputed land in 2022.

However, the disputed land had been adversely possessed by the Respondent and on appeal, the Appellant raised for the first time the argument that the Respondent was unable to argue adverse possession because the disputed land had been subject to a trust during the relevant 10 year period (by reason of Paragraph 12 of Schedule 6 to the LRA).

Conclusion

The case involves an interesting discussion in relation to the Law Commission’s aims when bringing in the LRA as well as the applications of the principles of statutory construction.

For those involved in the adverse possession of land, in particular land with a long and complicated history, the Court of Appeal has provided much needed clarity. It has confirmed that if the paper owner of the title to the land dies this will not interrupt the squatter’s period of possession, as the land held by personal representatives in an unadministered estate is not subject to a trust within the meaning of the LRA.

Although this may seem like a rather academic or niche point, given the fact that adverse possession claims often centre around land with a long or unclear history or where there has been missing owners, this was actually a question of some impractical importance to adverse possession claims.

As a Property Litigation partner, it is an issue I have encountered when advising my clients in relation to adverse possession.

The Hamlins Real Estate Disputes team has expertise in both commercial and residential matters. We seek to obtain the best outcome possible for every client, no matter how big or small the issue may be. If you have a claim or a dispute in relation to the ownership of land and would like a conversation to find out how we might help you, please get in touch.