Q&A: Legal title on land occupied since 1986

Emma Preece and Tom Morris tackle an adverse possession query in relation to a boundary dispute between neighbours.

Question

My husband and I own a residential property in rural Suffolk, called Ivy Cottage. We have a reasonably large garden, and at the very end there is a woodland area (which we call the copse), which is open to the remainder of our garden. We have enjoyed and made use of the copse since we purchased our home in 1986, which is when it was registered. We have a new neighbour, who has purchased Wood Cottage, the house at the other side of the copse. He has recently approached my husband and I in relation to the ownership of the copse, as he believes his Land Registry title plan shows that it falls within the title of Wood Cottage. He would like to put a fence up marking the boundary on the ground – the fence would essentially mean we can no longer occupy and enjoy the copse, which would then form part of the garden to Wood Cottage.

Both properties are registered (though title to Wood Cottage was registered only recently, just before the sale to our neighbour), and my husband and I have reviewed the title plans. It does seem that the red line boundary on our plan for Ivy Cottage doesn’t quite extend as far as the land we have been occupying, and doesn’t include the copse. However, we have been occupying this land since 1986, and wonder if we can now assert ownership rights to it. The previous owner of Wood Cottage didn’t ever question our occupation of this land, and certainly didn’t give us any form of consent to occupy it. Is this an option?

Answer

It is likely that you have acquired title to the copse on the basis of adverse possession, if you can show that you were in possession of the copse for at least 12 years before title to Wood Cottage was registered and that the dispute between you can properly be characterised as a dispute about the location of a boundary.

Explanation

Provided the boundary between Ivy Cottage and Wood Cottage has not been determined, the red line on the title plans will only show a “general boundary”, pursuant to section 60 of the Land Registration Act 2002. This means that the title plan does not show the exact line of the boundary – it is conclusive only as to who owns Ivy Cottage and Wood Cottage, but not the extent of legal ownership.

In order to determine where the legal boundary is, it is necessary to look back at the conveyancing history and the position on the ground – which includes whether title to any of the land may have been acquired by adverse possession before first registration of Wood Cottage. In the recent case of Clapham v Narga [2024] EWCA Civ 1388; [2024] PLSCS 197 (which presented similar facts), the Court of Appeal highlighted that boundaries must be determined by looking at the pre-registration deeds and the position on the ground (thereby going “underneath” the register).

Assuming that you and your husband have performed acts of ownership over the copse and with the requisite intention to have excluded all others from using it, and that you did so for a period of 12 years prior to first registration of Wood Cottage, then you will have acquired title to the copse under sections 15 and 17 of the Limitation Act 1980. The effect of that was that your neighbour’s predecessor in title would not have had any title to the copse to convey to him. Provided that the copse is not such a large piece of land that the dispute between you and he cannot be characterised as a boundary dispute, he cannot rely on his title plan to assert a better title to the copse than you and your husband had previously obtained through adverse possession. If, on the other hand, the copse is so large that it is outside the scope of the general boundaries rule, then you can apply to HM Land Registry for the register to be rectified so that it shows a new general boundary in a more accurate place.

In Clapham v Narga, the dispute related to the bank of a stream in Leicestershire which similarly divided parcels of land. The Court of Appeal highlighted how the purchaser in that case should have consulted their prospective neighbour prior to purchase, to establish the boundaries position. We can assume your neighbour did not do that here. In the event he does proceed to erect a fence, depriving you of your use of the copse, it is likely you would be able to obtain an injunction against him as a result of your possessory title. You should therefore confirm to your neighbour that you have acquired possessory title to this land and that you will be seeking to register this at the Land Registry.

Emma Preece is a senior associate at Charles Russell Speechlys LLP and Tom Morris is a barrister at Landmark Chambers.

This article was first published in Estates Gazette on 7th January 2025.