Freedman J. A person is not to be regarded as being in adverse possession of an estate when the estate is subject to a trust: see Schedule 6, paragraph 12, to the Land Registration Act 2002. Does this include a situation in which land is held by the personal representatives of a deceased person by virtue of s 33 Administration of Estates Act 1925?

Facts

The original dispute between the appellants (A) and the respondent (R) concerned a small parcel of land in Bradford. The disputed land was originally owed by A’s father who died intestate in March 2010. In April 2022, A became registered proprietors of the disputed land. In February 2022 A issued proceedings against R and sought an order for possession of the disputed land. R defended the claim and stated she and her husband had adversely occupied the land for at least ten years and had a defence under s 98(1) Land Registration Act 2002 (LRA 2002). In December 2022 A’s claim was dismissed on the basis R had a valid defence of adverse possession under s 98(1) and said R should be registered as proprietor of the disputed land.

A sought permission to appeal and argued the decision was wrong as R could not establish the requisite ten years of adverse possession under LRA 2002 Schedule 6(1) since Schedule 6(12) states:

‘a person is not to be regarded as being in adverse possession of an estate for the purposes of this Schedule at any time when the estate is subject to a trust, unless the interests of each of the beneficiaries in the estate is an interest in possession.’

A asserted R could not have been in adverse possession from October 2019, being the date when A received Letters of Administration stating the land was held on ‘trust’ by them.

A argued that although the ‘trust’ had ‘no beneficiaries with immediate rights’ it should be treated as a ‘statutory or special type of trust’; [31]. A justified this approach on a purposive basis submitting that ‘those who will take the property at the end of the administration require the assistance of the protection because they have no present right to take steps against the trespasser until then’; [32].

R argued the expression ‘when the estate is subject to a trust’ in the statute required a trust to exist, and none of the requirements for a trust exists in the case of the administration of an estate; [33]. Additionally, R argued that ‘the reference to a trust in the Administration of Estates Act 1925 is so that administrators are treated as trustees for certain purposes … that is not sufficient to create a trust’; [34].

Held

Appeal dismissed.

Freeman J preferred the view of R and rejected the argument that death and/or administration of an estate come within Schedule 6(12) so as to prevent a claim for adverse possession for the following reasons; [43]:

1. The personal representatives were not conventional trustees as they ‘hold such property without any differentiation between the legal and beneficial interests’;
2. There is no reason to treat the personal representatives as trustees because of the use of the word ‘trust’ in s 33 Administration of Estates Act 1925 when they are not conventional trustees;
3. If Parliament had intended to extend the ambit of a trust it would have done so expressly and could have done so easily by incorporating s 68(12) Trustee Act 1975 into the interpretation provision;
4. The specific wording of the exception in LRA 2002 Schedule 6 assisted in the construction that beneficiaries are required as in a conventional trust.

If LRA 2002 Schedule 6(12) had applied, the evidence presented by W showed that each of the beneficiaries was in possession; [53].