Max Thorowgood discusses a familiar scenario - a long leaseholder takes possession of some loft space, a balcony or a roof terrace. The land is outside their demise but is only accessible from their demise.
It seems ‘obvious’ that in such a case, provided the lessee remains in possession for sufficient time to bar the landlord from taking proceedings to eject them, that the lessee should acquire title to the ‘adversely possessed’ land.
Needless to say, the position is not that straightforward. The legal analysis is arcane and complex involving competing estoppels/presumptions which inter-relate in uncertain ways with the principles of limitation. But more importantly from a practical point of view, the relationship between the doctrine of encroachment and the ‘new style’ adverse possession regime established by ss. 96-98 Land Registration Act 2002 and Schedule 6 is wholly unclear. This is particularly true if the adverse possessor is to be required to meet one of the limited criteria because a notice in Form NAP is served.
Recent case law on encroachment and adverse possession
This conundrum has been considered in a clutch of recent cases in the First-tier Tribunal’s Land Registration Division: McGee v Long Term Reversions (Harrogate) Ltd [2025] UKFTT 00233 (PC); Hood v Southern Land Securities Ltd [2025] UKFTT 00726 (PC); and Relins v Gill [2025] UKFTT 00845 (PC). The judgment in McGee includes a very detailed discussion of the case law at §§15-63.
As to the doctrinal argument, the key recent authorities are: Smirk v Lyndale Developments [1975] Ch 317 a decision of the Court of Appeal approving the decision of Pennycuick V-C as to his analysis of the principles and Secretary for Justice v Chau Ka Chik Tso [2011] HKCFA 86, a decision of the Hong Kong Court of Final Appeal. Smirk is the leading, binding authority.
An encroachment will still be a trespass
It is important to state first that, subject to any other possible defences, unless and until the relevant limitation period has expired a lessee in possession of land beyond their demise will be:
- a trespasser and
- liable to be ejected upon a claim for possession or an injunction.
What is the relevant period of limitation is a more vexed question.
Leaving aside the arcana, the critical point is this: it will be presumed (unless the contrary is shown) that encroachments by a lessee/tenant are by way of accretion to their lease, that is to say, by way of addition to their lease.
It follows that:
- Where the encroachment is upon land belonging to the landlord, the landlord’s title will be barred only so long as the lessee’s title endures; and
- Where the encroachment is upon the land of a 3rd party, the lessee encroaches on behalf of his landlord (again by way of accretion to his lease) and that the landlord is accordingly the ultimate beneficiary of the encroachment and, thus, the proper applicant for registration with the freehold title (subject to the lessee’s lease); and
The Schedule 6 regime does not apply where the encroachment is upon the landlord because the ‘title’ which the lessee acquires is not the existing freehold title but either a new leasehold title or a variation to their existing leasehold title.
HM Land Registry's preferred approach to applications concerning possession of a landlord's title
On this basis, HM Land Registry’s preferred approach to applications relating to possession of a landlord’s title is that:
- either the lessee should make an application for 1st registration of their ‘new lease’ in Form FR1;
- or they should apply to alter the Register so as to bring it up to date by registering the addition to their demise.
However, it would seem that in the case of encroachment upon the land of a 3rd party it will be for the landlord to make a conventional application in Form ADV1.
What is the relevant period of limitation?
In the case of encroachment on land of a landlord, given that the title which is acquired is unregistered, it would seem that ss.15 and 17 Limitation Act 1980 apply and that 12 years is the applicable period of limitation.
In the case of encroachment on the land of a third party, counterintuitively perhaps, the Schedule 6 regime will apply because it is title to the existing registered title which is in question and the period of limitation will therefore be 10 years; albeit subject to the strictures of Schedule 6.