Clapham v Narga [2024]: the priorities of interstellar boundaries

Daniel Dovar considers the decision in Clapham v Narga and others [2024] EWCA Civ 1388 in which the Court of Appeal held that section 75 of the Land Registration Act 1925 did not apply where title to land had already been extinguished through adverse possession by the time it was first registered.

Inception

I fell off my bike a few years ago and fractured my wrist. Before manipulating the bones, the registrar said to me, have you ever seen the film Inception by Christoper Nolan. I said yes. He said, well, with this medication you are about to go into a dream within a dream. Nolan’s movies, such as Inception and Interstellar, frequently deal cinematically with scientific theories and the giddying boundaries of time and space. Following the three court outings that the Claphams, the Wrights and Ms Narga have had in the County Court, High Court and Cout of Appeal, I was reminded of the discombobulating nature of Nolan’s films and the way they can frequently move in and out of time and space.

Back down in the reality of terra firma, real boundary disputes are generally regarded by the legal profession as a type of litigation that is highly contentious, emotional and disproportionately expensive. In a talk that the surveyor David Powell used to give on boundary disputes many moons ago, I recall the outcome of a survey he had undertaken to understand the psychological make up of those who became embroiled in this type of litigation. It went something along the lines of – 20% had daughters who lived in Canada, and 45% were retired CEOs. Various health warnings are given to litigants embarking on such disputes, not least the encouragement to take a flash holiday or buy a big car instead and give up the dispute and the inches of land. Ultimately, it is a question of getting your priorities right.

Clapham v Narga [2024] EWCA Civ 1388

The lay of the land was:

• Brook Barn stood to the north of a brook, which itself ran west to east and had steep slopes on each side.
• Numbers 24 to 26 The Green ran in a line on the south side of the brook.
• There was a fence between the north side of the brook and Brook Barn.

The Disputed Land was between the northern edge of the south side of the brook and the fence, as follows:

The Barn

The Fence

The Disputed Land

The south bank of the brook

Numbers 24 to 26, The Green

The relevant background is as follows:

• Mr Crowden had owned The Barn and Numbers 25 and 26 The Green.
• In 1982 Mr Crowden sold No 26 The Green to Mr Allen who sold to the Wrights in 1983.
• In 1988 Mr Crowden’s executors sold No 25 The Green to the Wrights.
• In 1996 the Claphams bought No 24 The Green.
• Ms Narga bought Brook Barn in 2020, title to that land having first been registered in March 2003.

County and High Court Decisions

The north bank had therefore been enclosed by the fence against The Barn until Ms Narga purchased in 2020. At first instance and on first appeal, it was considered that when Ms Narga purchased The Barn, she had taken free of any interest of the Claphams and Wrights as owners of The Green.

Before setting out why that was the case, there are a few legislative considerations to bear in mind.

Sections 15 and 17 of the Limitation Act 1980 (LA 1980) provided for a squatter to extinguish an owner’s title after a sufficient period of adverse possession.

Section 75 of the Land Registration Act 1925 (LRA 1925) altered that outcome by providing that instead of extinguishing title, the paper title owner held it on trust for the squatter (who could, if they wanted, call for legal title).

The Land Registration Act 2002 (LRA 2002) put an end to that regime in October 2003. It did accommodate those who had already established 12 years prior to that point though. It extinguished the trust imposed by section 75 and created a ‘right to be registered’ as proprietor. That right was automatically an overriding interest for three years, until October 2006, so that any sale of the subject land would be bound by that right. After those three years were up, it was only protected if their occupation was obvious on a reasonably careful inspection.

The Claphams and Wrights lost at first instance and on first appeal due to the following chronological landscape (both factual and legal):

• The Disputed Land had been unregistered until March 2003 and, for at least 12 years prior to that, it had been adversely possessed by the Claphams and Wrights.
• The Barn was first registered in March 2003, before the coming into force of the LRA 2002, with the result that at that point, section 75 of the LRA Act 1925 meant that by reason of the enclosure of the northern bank and brook, the owner of The Barn held the disputed land on trust for the Claphams and Wrights.
• When the LRA 2002 came into force, the trust fell away and was replaced by a right to be registered as proprietor. That right was automatically an overriding interest, but for three years only under the transitional provisions of the LRA 2002. Once those three years elapsed, it would only remain an overriding interest if not only were they in occupation of the Disputed Land, but such occupation would have been obvious on a reasonably careful inspection.
• The Claphams and the Wrights were not obviously in occupation, with the result that when Ms Narga purchased, she took free of their interests and all that adverse possession, trust and right to register came to nought.

There was an additional strand that was addressed. The general boundaries rule. The argument ran as follows. Registration of Ms Narga as owner of The Barn did not necessarily include the Disputed Land. The general boundaries rule under section 60 of the LRA 2002 made it clear that the land and plan were not definitive as to where the boundary was. Therefore, when The Barn was registered in 2003, it was not by reference to the original conveyance splitting title, but to the position on the ground at the time of registration (that is, without the Disputed Land, as title had been extinguished by that point). However, this was rejected on the basis that when Ms Narga bought The Barn, she bought the same land, known as The Barn, that her predecessors had held (albeit partially on trust), and that their predecessors had held.

Court of Appeal

On appeal, the first issue that came under scrutiny was the role, if any, of the general boundaries rule. The rule that Land Registry plans do not purport to show the exact line of the boundary between two properties. A rule which is justified on the basis that to do so would engender disputes. But also a rule, which when explained to any lay person, is usually greeted either with alarm or disquiet as to its anarchic underpinnings, or by an arched eyebrow which signals a slight disdain at what could be seen as a gift for lawyers.

Indeed, the discombobulation that starts with the introduction of the general boundaries rule, is then rolled into a full whirly gig when trying to follow the line that the boundary takes you to. It is a fork in the road to resolution; it has an Alice in Wonderland air to it, where a Cheshire Cat sits in its tree, offering you a ‘Property Dispute’ or ‘Boundary Dispute’. Lord Evershed MR was surely echoing Lewis Carroll when he said in Lee v Barrey [1957] Ch 251:

”…a boundary dispute and a property dispute may be two things quite different. It is true that a property dispute may, and frequently does, involve boundaries, and that a boundary dispute involves in some degree a property dispute; and if the divergence is very great indeed, you may say that the matter has passed from any sensible use of the phrase “boundary dispute” and becomes something else.”

After ruminating on this point, Newey LJ said this in Clapham v Narga at paragraph 45:

”…There is no indication in either section 60 of the LRA 2002 or rule 278 of the 1925 Rules that it matters whether any uncertainty as to the position of a boundary stems from an issue as to the construction of a conveyancing document, on the one hand, or an adverse possession claim, on the other. Neither section 60 nor rule 278 contains any reference at all to adverse possession. What emerges from both provisions is that a title plan is not to be taken to show the boundaries accurately. If, therefore, neighbouring owners differ as to where a boundary lies, the answer is not to be found in the title plan but by reference to the other principles by which the extent of a person’s property is ascertained. The exercise may involve analysis of conveyances, transfers and other documentation, but I do not think there is any good reason for disregarding adverse possession claims. In my view, a title plan will not settle the exact location of a boundary regardless of whether it accords with the paper title or has moved through adverse possession.”

In short, it all went into the mix. The fixation on boundary or property dispute was an attempt to determine whether a dispute involved a fight over acquisition of land that had fixed boundaries but where one party claimed to have taken that land (a property dispute) or a dispute as to where the boundary was (a boundary dispute). In this case, the area was small, the value was low, there was no obvious importance; it was a boundary dispute. At para 47 Newey LJ summed it up as “…Ms Narga has been registered as proprietor of the right property and that what is contentious is that property’s southern boundary.”

Then Newey LJ’s attention turned to section 75 of the LRA 1925 and the impact of 12 years adverse possession of unregistered land prior to the LRA 2002 coming into force. Firstly, section 75 did not apply to unregistered land. It could therefore not apply when that land came to be registered, because the disputed land was not transferred on registration.

”If, however, land had been in adverse possession for 12 years before it was registered, extinction will have occurred pursuant to the Limitation Act 1980 in advance of registration and the Act will not obviously have any role to play as regards ‘registered land’.”

If section 75 did not apply, then the full force of sections 15 and 17 of the LA 1980 applied, being that the paper title owner’s title was extinguished and the squatter acquires title.

In light of that, the two preceding courts had taken a wrong turn at section 75. They should have ignored it. They should have concluded that prior to first registration the Disputed Land was no longer within the title of The Barn, with the result that there was nothing for section 75 to bite on after registration and with the result that the Claphams and the Wrights had secured the Disputed Land within their title all along. It followed that the intricate ins and outs of section 75, overriding interests and obvious occupation were irrelevant. Even though the Disputed Land appeared to fall within the title plan on The Barn’s title, the general boundaries rule negated the impact of that. That line could not be relied on. It said nothing.

The boundary landscape between The Barn and the neighbouring land notionally shifted once again, just like a Nolan movie. First the boundary was The Barn, then it was with The Green, then The Barn again, then back to The Green. Boundaries within boundaries.

Related news: Brown v Ridley [2025] UKSC 7

In related news, the Supreme Court has endorsed Edwin Johnson’s itch scratching in Brown v Ridley (see previous article, Property Litigation Column: The curious case of Brown v Ridley and Schedule 6, paragraph 5(4)(c) of the Land Registration Act 2002) and sensibly determined that a claim under paragraph 5 of Schedule 6 to the LRA 2002 on the first ground does not have to be made the instant a squatter realises what they have done.

This article first appeared in Practical Law: Property Litigation Column on 2nd April 2025.