Chapter 4 Audio: Discussion of Court of Appeal case for Rashid v Nasrullah

In this audio I want to discuss the recent and fascinating Court of Appeal case in Rashid v Nasrullah, and you’ll find this discussed in the book. This case concerns an interesting question: can you be in adverse possession of land of which you are the registered proprietor? Now, in Rashid, the First-Tier and Upper Tribunal both said no. Yet Lewison LJ in the Court of Appeal said yes.

So, let's consider that a little further. Now, the facts of Rashid were very involved--there was fraud, and also it wasn't helped by the fact that two of the parties had the exact same name--Muhammad Rashid--and so the court itself called the parties MR1 and MR2.

Now, MR2 was the registered owner of property, and in 1989 he traveled to Pakistan, and in his absence, MR1, his namesake, took possession of the property and fraudulently transferred title to the land into his own name. MR1 later transferred title to the land to his son--MR1’s son--for no consideration. This is part of a fraudulent scheme.

MR1 phoned MR2 in Pakistan, told him what he had done, and told MR2 not to return to the property. MR2 did return to the UK but did nothing to regain possession of the property. And years later, in 2013, sought to have the register at Land Registry rectified to reflect himself as the true owner. The question was, with the land registered in MR1’s son's name, could the son nevertheless argue that he was in adverse possession of the land and thereby challenge MR2’s attempts to rectify the register?

The First-Tier Tribunal said the son was complicit in a fraud and his name on the register was therefore recorded by mistake. It was a mistake perpetrated through a fraud. And so, despite his possession of the land since 1990, the register would be rectified and the Upper Tribunal agreed, also keen that the son should not benefit from his own fraud.

Yet the Court of Appeal took a different approach. Lewison LJ said the doctrine of illegality was not relevant to the issue of adverse possession, and that the simple question was laid down in Pye v Graham. Namely, was the son in possession of the land without the true owner’s consent for the relevant period of time?

Yes, he was, said the Court of Appeal. However fraudulent or badly behaved MR1 and his son had been, they were in possession of the land for over 20 years without MR2’s consent. Therefore, the son could rely on his adverse possession to defeat MR2’s attempts to rectify the register, even though the son was already down as the registered proprietor.

It's a cautionary tale, Rashid, a stark warning to true landowners: snooze you lose.