Nazir v Begum: Adverse possession and statutory trusts

In the recent case of Nazir v Begum [2024] EWHC 378 (KB) the High Court considered whether registered land could be adversely possessed when it was being administered following the registered owner's death.

The court determined the 10-year passage of time requirement to adversely possess land is not interrupted by trusts for sale created under s33 of the Administration of Estates Act 1925, which provides that when someone dies intestate, their estate is held in trust by their personal representatives with the power to sell.

What impact could this have?

The key legal upshot to grapple with is that trusts created under this provision are carved out of the general rule under paragraph 12, schedule 6 of the Land Registration Act 2002 that an estate in land is not to be regarded as adversely possessed at any time when that estate in land is subject to a trust (where the beneficial interests are not interests in possession).

The bracketed exception is important, as the specificity of the wording suggests beneficiaries are required as with a conventional trust for the provisions of paragraph 12 to apply.

The High Court considered the administrators or indeed executors of an intestate estate are not trustees in the conventional sense, notwithstanding their fiduciary duty to administer the estate.

This is because the entire estate was vested in them, and there was therefore no differentiation between the legal and beneficial interests − the beneficiaries merely had the right to ensure the estate was properly administered, and there are not "beneficiaries" in the same sense as other types of trust.

The key takeaway is that the effect of the death of the registered owner of the estate being administered, during the required ten-year period, does not operate as a bar to a claim for adverse possession.