Court of Appeal – Adverse possession claim not limited by a statutory trust 

In the case of Nazir v Begum [2025] EWCA Civ 587, the Court of Appeal addressed whether land held on a statutory trust by the executors of a deceased’s estate could be subject to an adverse possession claim.

The dispute involved a strip of land claimed by Mrs. Begum who asserted that she had occupied the land for over ten years.

Background

The dispute concerned a small parcel of land in Bradford, which formed part of the estate of Mr. Nazir, who died intestate in March 2010. The appellants, Mr. Nazir’s children, became the registered owners of the land in April 2022 and issued proceedings against Mrs. Begum who had sought possession of the land.

Mrs. Begum defended the claim, asserting that she and her husband had been in adverse possession of the land for over ten years. Mr. Nazir’s children contended that the land was held on a statutory trust by them as personal representatives of the deceased, under Section 33 of the Administration of Estates Act 1925. They argued that this trust status should preclude adverse possession claims, as the land was “subject to a trust”. The judge at first instance dismissed the claim, finding that the statutory trust did not constitute a conventional trust and that Mrs. Begum had established adverse possession.

The decision was appealed.

Decision

The Court of Appeal upheld the decision at first instance by determining that a statutory trust imposed by Section 33 does not constitute a trust in the conventional sense, as it does not create a separation of legal and beneficial interests between personal representatives and beneficiaries. Consequently, the land was not “subject to a trust” within the meaning of Paragraph 12 of Schedule 6 to the LRA 2002, allowing the adverse possession claim to proceed. The court emphasized that the statutory trust does not afford beneficiaries a proprietary interest that would restrict time running for adverse possession.

Adverse possession in Northern Ireland

In order to acquire real estate by adverse possession, one must demonstrate they have been in possession of the land for a specified time period. Subject to certain exceptions, the requisite time period in Northern Ireland is twelve years, as set out in the Limitation (Northern Ireland) Order 1989. The party claiming adverse possession must demonstrate they have been in possession of the land for a minimum of twelve years, without permission.

Making a claim for adverse possession is two-fold and the burden of proof rests on the claiming party who must establish:

• factual possession of the land. Whilst this can vary from case to case, the party must prove they have physical control of the land and that they have dealt with the land as though they were the registered owner; and
• the requisite intention to possess the land.

While each case turns on its own facts, the recent Court of Appeal decision is a welcome clarification on the law of adverse possession.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact Stuart Nevin in our Real Estate Disputes Team at Cleaver Fulton Rankin for further advice or information.

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