Zarb & Anor v Parry & Anor

Factual and Procedural Background

This appeal concerns a boundary dispute between two neighbouring residential properties regarding a strip of land approximately 890 square feet in area ("the Strip"). The appellants, the Zarbs, held paper title to the Strip, while the respondents, the Parrys, claimed ownership through adverse possession. The dispute arose from the sale in 1992 of a portion of garden land ("the Plot") adjoining the Zarbs' property, with boundaries marked by a plan (Plan B) attached to the transfer. The southern boundary, in particular, was contested, as the physical boundary on the ground (a hedge) did not align with the paper title.

After the Parrys purchased the adjoining property in 2002, the boundary dispute resurfaced in 2007 when the Zarbs attempted to assert ownership by physically marking the boundary and removing fences. The parties jointly instructed a surveyor in 2008, but the matter remained unresolved, leading to proceedings initiated by the Zarbs in 2009 seeking a declaration of boundary in accordance with Plan B. The Parrys defended the claim relying on adverse possession and physical boundary evidence.

The trial judge found that the Zarbs had paper title to the Strip but that the Parrys had acquired title by adverse possession, with the physical boundary effectively running through the middle of the hedge. The appeal concerns three legal and factual issues arising from these findings.

Legal Issues Presented

1. Whether the judge erred in rejecting the argument that the Ceens' possession of the Strip was with the consent of Mr Little, thereby negating adverse possession.
2. Whether the judge was correct in holding that the Parrys' adverse possession was not interrupted by the Zarbs' attempt to fence off the Strip in July 2007, thus not restarting the limitation period.
3. Whether the Parrys satisfied the requirement under paragraph 5(4)(c) of schedule 6 to the Land Registration Act 2002 that they reasonably believed throughout the relevant ten-year period that they owned the Strip.

Arguments of the Parties

Appellants' Arguments

• Argued that Mr Little, the predecessor in title to the Zarbs, had given implied consent to the Ceens’ possession of the Strip, negating adverse possession, based notably on Mr Little erecting a stock-proof fence and Mrs Ceen’s statutory declaration.
• Contended that the Parrys' adverse possession was interrupted in July 2007 when the Zarbs attempted to retake possession by erecting fence posts, removing existing fences, cutting down a tree, and marking the boundary with surveyor’s tape, thus restarting the limitation period.
• Asserted that after receiving a solicitor’s letter in October 2007 outlining the paper title claim, the Parrys could no longer reasonably believe they owned the Strip, failing the mental element required under paragraph 5(4)(c) of schedule 6 to the 2002 Act.

Respondents' Arguments

• Maintained that Mr Little did not consent to the Ceens’ possession of the Strip, with the judge’s finding that possession was adverse and without consent being correct.
• Argued that the Zarbs’ actions in July 2007 were insufficient to interrupt adverse possession as they did not regain exclusive physical possession; the Parrys remained in control of the Strip.
• Submitted that the Parrys’ belief in ownership was reasonable throughout the relevant period, supported by the surveyor’s report and the dormancy of the dispute before 2007, and that the October 2007 letter did not negate this reasonable belief.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419	Defines factual possession and intention to possess in adverse possession claims.	The court applied the principle that factual possession requires exclusive physical control and intention to possess, confirming that possession must be exclusive and continuous.
Powell v McFarlane (1977) 38 PC & R 452	Clarifies the meaning of factual possession and exclusive control.	The court relied on this to confirm that possession must be exclusive and that mere acquiescence or permission negates adverse possession.
Randall v Stevens (1853) 2 E & B 641	Establishes that possession can be retaken by brief physical entry with intention to possess.	The court distinguished this case, noting that although brief possession can interrupt adverse possession, the Zarbs did not complete possession to exclude the adverse possessors.
Allen v England (1862) 3 F & F 52	Discusses the effect of the landowner’s presence on possession.	The court noted this case involved permissive use and did not support the appellants' claim that mere presence or symbolic acts interrupt adverse possession.
Bligh v Martin [1968] 1 WLR 804	Clarifies that the paper title owner must exclude the adverse possessor to interrupt possession.	The court applied this to hold that the Zarbs’ acts did not amount to exclusion of the Parrys and thus did not interrupt adverse possession.
Doe d Baker v Coombes	Supports the principle that adverse possession requires exclusive possession.	Cited to reinforce the requirement for exclusion of the adverse possessor by the paper title owner to interrupt possession.

Court's Reasoning and Analysis

The court began by examining whether the Ceens’ possession was with consent from Mr Little, concluding that the evidence did not establish consent. The erection of a stock-proof fence by Mr Little was deemed equivocal and insufficient to infer permission. The judge’s factual findings that Mr Little did not object because he believed he was not the owner were upheld, rejecting the appellants’ argument that possession was not adverse.

Regarding interruption of adverse possession, the court analyzed the July 2007 incident where the Zarbs attempted to fence the Strip and remove existing fences. Applying established legal principles, the court held that to interrupt adverse possession, the paper title owner must regain exclusive physical possession. The Zarbs’ acts were preliminary and incomplete; they did not exclude the Parrys from possession. The court emphasized that symbolic acts or brief presence without exclusion are insufficient to interrupt adverse possession.

On the requirement under paragraph 5(4)(c) of schedule 6 to the 2002 Act that the adverse possessor must have a reasonable belief of ownership throughout the relevant ten-year period, the court found that the Parrys’ belief was reasonable. The dispute was dormant when the Parrys purchased the property, and subsequent surveyor reports supported their belief. The October 2007 solicitor’s letter from the Zarbs did not render that belief unreasonable, especially given the absence of further evidence contradicting it.

The court considered the Land Registration Act 2002’s provisions carefully, noting that adverse possession under the Act requires a fair balance and reasonable belief by the adverse possessor. The court interpreted the Act to mean that unreasonable belief in the final ten years can defeat registration, but here the belief remained reasonable.

Holding and Implications

The appeal was dismissed.

The court upheld the trial judge’s findings that the Parrys had acquired title to the Strip by adverse possession despite the Zarbs holding paper title. The attempt by the Zarbs to interrupt possession was insufficient to restart the limitation period, and the Parrys reasonably believed they owned the land throughout the relevant period. The decision confirms that physical possession and intention to possess must be exclusive to interrupt adverse possession and that mere symbolic acts or brief intrusion by the paper title owner do not suffice.

No new precedent beyond the interpretation of the Land Registration Act 2002 provisions was set, but the judgment provides important guidance on the practical operation of adverse possession claims under the Act and the evidential thresholds for interruption and reasonable belief. The court also highlighted the importance for purchasers and conveyancers to carefully consider boundary disputes to avoid costly litigation.