When can you claim adverse possession?

Adverse Possession: when can you claim?

We are sometimes approached by people who want to claim adverse possession of a piece of land, having maintained it for 12 continuous years, under the impression that they have an automatic right to do so. Unfortunately, the law on adverse possession is not so straight-forward. There are a number of factors to consider, including: whether the land is registered or unregistered; the time period during which the land has been maintained and / or occupied; whether there has been factual possession; whether there has been an intention to possess the land (without the proprietor having given consent); and whether the land is caught by the provisions of the Land Registration Act 2002.

Whether an application for adverse possession is likely to be successful is dependent on the factual circumstances of each case in its own right.

The starting point is to consider whether the land is registered or unregistered land. For ease of reference, we will refer to the person who seeks adverse possession as “the squatter”.

Unregistered Land

Before the Land Registration Act 2002 came into effect, the general position was that a ‘squatter’ could apply for adverse possession of unregistered land if (a) they had been in factual possession of the land for a period of 12 years or more; (b) they had intended to take possession of the land; and (c) they had used the land to the owner’s detriment (i.e. without the proprietor’s consent). A good example of a case that might be successful would be if the proprietor of a piece of land erected a fence around an adjacent piece of land (so as to exclude anyone, including the proprietor, from using it), and proceeded to maintain it as part of his land by mowing the lawn, planting flowers and trees and carrying out regular gardening activities within its confines. After a period of 12 years the “squatter” could apply to the Land Registry to request title to the land by means of adverse possession.

This process does still exist where the land in question is unregistered. Upon receipt of an application for first registration by the “squatter”, the Land Registry will attempt to give notice of the application to any persons with an interest (or potential interest) in the land. The people that are notified will be given an opportunity to object to the application and, although the “squatter” will argue that the proprietor is automatically dispossessed of title under the Limitation Act 1980, the Land Registry will usually refer the matter to the First Tier Tribunal (Property Division) for determination where there is an objection. This can be a lengthy and expensive process and the success of the case will turn on the specific facts involved.

However, where land is unregistered, the Land Registry cannot always identify a potentially interested person, or, if they can, the true owner may be unable to locate the original title deeds to prove ownership of the relevant section of land. The application, therefore, may be successful and relatively straight-forward in those circumstances.

Registered Land

The Land Registration Act 2002 came into effect on the 13^th October 2003 and impacts the way in which adverse possession claims are dealt with for registered land.

Please note that, even for registered land, the “squatter” is able to advance a claim under the same process and provisions as that described for unregistered land above, if they are able to evidence factual possession, intention and the lack of the land-owners consent for a period of 12 years prior to the Land Registration Act 2002 coming into force (i.e. 12 years prior to 12^th October 1991).

Otherwise, the process to be followed, and the applicable timeframes to satisfy, are as per Land Registration Act 2002 (“the Act”). Schedule 6 of the Act sets out the criteria for making a claim for adverse possession. The main criteria are briefly described below as follows: –

1. The person making the application must have been in actual possession of the land for a period of 10 years ending on the date of the application.
   
2. The person with adverse possession must have been in possession of the land to the registered owner’s detriment i.e. without the owner’s consent.
   
3. The person with adverse possession must have genuinely believed that the relevant section of land belonged to them during the period of adverse possession. This clause makes it considerably more difficult for “squatters” to succeed with an application for adverse possession because they must be able to prove that they had such a belief.

Upon receipt of an application for ownership by way of adverse possession, the Land Registry will serve notice of the application on the registered proprietor of the land and/or any other persons with a beneficial interest, such as the mortgage company with a registered charge against the property. If the application is not opposed, then the application will be granted. If it is opposed then the application will be rejected unless the squatter can prove they are entitled under exceptional circumstances.

In a situation whereby the application is opposed and subsequently rejected by the Land Registry, if the squatter continues having exclusive control of the property they can reapply again in 2 years’ time and are likely to succeed with their claim even if it is opposed again.

Further information can be found on the following government website.

This article was written by Katie Williams, and Odette Tovey.