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Monk v Gillespie

The First-tier Tribunal (Land Registration Division) handed down its judgment in Monk v Gillespie on 22 June 2021, a copy of which is available here.

The Applicants had applied on 3 October 2019 under Schedule 6 to the Land Registration Act 2002 to be registered as proprietors of a strip of land, 16-20m wide at its widest, which wrapped around two sides of the Applicants’ field, on the basis of adverse possession since 1995.

They had purchased a field next to their house from the Respondent’s predecessor in title in 1995. The vendor’s surveyor had marked out the land to be acquired with stakes prior to completion. The Applicants had erected a fence around the boundary so marked and used it as part of their field. It later transpired that the land so marked out did not match the extent of the land shown on the conveyance plan.

The Respondent objected and the application was dealt with under paragraph 5(4) of Schedule 6.

The issues between the parties were:

  1. Whether the Applicants had been in adverse possession since 1995;
  2. If so, whether the Applicants believed that the disputed land belonged to them for at least 10 years of the period of adverse possession ending on the date of the application;
  3. If so, whether that belief was reasonable; and
  4. If so, whether the nature and relative quantity of the disputed land was such that the Applicants could not be regarded as having made a mistake as to the boundary, so that it could not fall within the ambit of the third condition in paragraph 5(4)(c), applying Dowse v Bradford MBC.

Judge Bastin held that:

  1. The Applicants had been in adverse possession from 1995 until 3 October 2019;
  2. The Applicants had believed that the disputed land belonged to them for at least ten years of the period of adverse possession ending on the date of the application;
  3. The Applicants’ belief was reasonable in the circumstances until they were disabused of their belief on 12 August 2019; and
  4. The mistake was one about a boundary which fell within the ambit of paragraph 5(4)(c).

The decision, being one of the FTT, is not binding authority, but the approach taken by the Tribunal to the question of when the application must be made may be of interest to practitioners.

It was held that if, as suggested obiter by Arden LJ in Zarb v Parry, an application must be made promptly after the squatter becomes disabused of his reasonable belief that the land belongs to him, making the application within six or seven weeks is prompt enough.

Judge Bastin said, obiter, that if he was wrong about that, he would, if required to do so, find that the squatter’s reasonable belief did not have to be held up until the date of the application. Detailed reasons were given for this at [52].

Toby Boncey appeared for the Applicants and Oliver Radley-Gardner Q.C. appeared for the Respondent.

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