What is adverse possession?
Adverse possession means the occupation of land by someone who does not hold legal title to the land, without the permission of the person(s) who do. If such occupation continues for a long enough period of time, it is possible for them to gain possessory title. There are two different approaches to seeking possession dependant upon how long the person has been in possession.
For registered land or unregistered land, if possession can be proven for a minimum of 12 years prior to October 2003, the person in possession can claim the legal proprietor has been automatically dispossessed of title to the land and apply to the Land Registry to become the registered proprietor.
If possession of registered land cannot be proven for such a long period, but can be evidenced for a minimum period of 10 years post(or including) October 2003 then an application can also be made for adverse possession under Land Registration Act 2002..
Factual Possession
In either event evidence must be provided as to factual possession and the intention to possess. The person who claims possession will need to prove that they have been dealing with the land as if they owned it, to the exclusion of anyone else, for the entirety of the period mentioned above. A good example of this would be fencing the land off, although this is not, in itself, conclusive.
The intention to possess
The intention is extremely important. There must be an intention to possess, not just to own or even to acquire ownership. An intention to possess is often construed from a person’s actions during the course of their possession of the land.
Possession without the owner’s consent
A person wishing to acquire adverse possession of a piece of land must possess the land without the owners’ consent. A person cannot acquire adverse possession if they occupy the land under a lease or a licence. The existence of an agreement to use the land will present a good defence to any claim.
Adverse possession is often a difficult claim to bring and therefore it is recommended that legal advice is sought prior to making an application. The above information acts as a guide only. Advice will need to be considered in line with your individual situation.
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