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Adverse Possession

Dec 19, 2022

Adverse possession is a legal principle by which an individual who is not the legal owner of land can become the legal owner by being in possession of the land for the requisite period of time. Adverse possession is often referred to as “squatters rights”, and the concept of it has been the subject of controversy, however, as explained below, it is not as simple as possessing the land; certain conditions need to be met before adverse possession can be successfully claimed.

The procedure to be followed depends on whether the land is registered or unregistered and both regimes are covered below.

For both regimes, there are three common requirements which must be met. These are set out below:

1. The applicant has had factual possession of the land for the requisite period – this signifies an appropriate degree of physical control and each case will be considered on its own merits.

2. The applicant has the necessary intention to possess the land – you must be able to establish that you intended to possess the land as your own during the period of possession. It is common for the intention to possess to be deduced from the same facts where factual possession has been established, however it is not always the case.

3. The applicant’s possession is without the owner’s consent – possession can never be adverse if the true paper owner has consented to the occupation, for example, under a lease or licence.

Additionally, depending on whether the land is registered or unregistered, the applicable procedure will apply.

Registered land

The procedure for adverse possession of registered land is set out in the Land Registration Act 2002 (“LRA 2002”) and came into force on 13 October 2003. This does not apply to land where the possession relied on is for a period of 12 years ending before 13 October 2003.

Under the LRA 2002, an applicant may apply to be registered as proprietor of land after ten years of adverse possession. Prior to the LRA 2002 coming into force, an applicant could acquire the right to be registered as proprietor of the land if they had been in control of the land for a minimum of 12 years, and this would bar the registered proprietor’s right to recover the land. However, under the LRA 2002, no limitation period applies, and an applicant can make an application to be registered as the proprietor of land after ten years of adverse possession. Within the application, the applicant must produce evidence showing that they have been in adverse possession of the registered estate for a period not less than ten years ending on the date of the application and deal with the conditions required by the Land Registry.

What happens after the application has been made?

The registered proprietor and other persons interested in the land will receive notification of the application. They will be given the opportunity to oppose the application i.e., by serving a counter notice. In the event the application is not opposed by anyone notified of the applicant’s application, the applicant will be registered as the proprietor of the land.

If, however, the application is opposed, it will be rejected unless the applicant can rely on one of three conditions set out in Paragraph 5 of Schedule 6 of the Act, as set out below:

1. It would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant and the circumstances are such that the applicant ought to be registered as the landowner;

2. The applicant is for some other reason entitled to be registered as landowner; or

3. The applicant has been in adverse possession of land adjacent to their own under the mistaken but reasonable belief that they are the owner of it, the exact line of the boundary with this adjacent land has not been determined and the estate to which the application relates was registered more than a year prior to the date of the application.

If any of the above apply and you have not dealt with them in the application, and it is opposed, the application will be rejected by Land Registry.

What happens if the application is refused?

If the first application is refused because of a counter notice being served and none of the three above-mentioned conditions being satisfied, the applicant can make a second application if they remain in adverse possession for a further two years i.e., the true landowner has been given notice of the attempt to acquire adverse possession, has successfully opposed it but then done nothing to remove the person from the land.

Unregistered land

Although these cases are rare (most land is now registered), there is a different procedure for unregistered land and registered land where the possession relied on is a period of at least 12 years ending before 13 October 2003.

Here, the three factors set out above must be shown to have been in existence continuously for a period of at least 12 years. Although the period of occupation is usually 12 years, there are circumstances in which a longer period is needed such as for land held by the Crown, recovery of Crown foreshore land and land belonging to a dissolved company.

Practical tips

For landowners
• It is sensible to inspect your sites regularly
• If you find that someone is adversely occupying your land, take urgent steps and investigate when the occupation first began
• Consider obtaining a boundary surveyor’s report if there is a dispute, or there may be a dispute as to the boundary of the properties
• If you give permission for someone to use your land, make sure that permission is recorded in writing and that you update it from time to time

For applicants
• Make sure that you can show that you have excluded everyone from the property by, for example, fencing the land and that you have evidence of when that took place
• If you are intending to claim adverse possession, don’t say or write anything to the true landowner which may amount to asking for permission to use the land or offering to pay rent for it
• Ensure that you have satisfied the three above-mentioned requirements for the requisite period i.e., factual possession, intention to possess, and possession without the owner’s consent before you make any application

The process and legal requirements vary depending entirely on the circumstances of each individual case. It is therefore essential that you seek legal advice to ensure the correct procedure is followed to maximise the chances of an adverse possession application being successful.

Herrington Carmichael LLP has a specialist team of Dispute Resolution lawyers with many years’ experience in dealing with disputes. If you would like to know more, please contact stephen.baker@hc.law or call 01276 854 922.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

Frankie Tierney

Frankie Tierney

Partner, Disputes and Claims

t: 01276 854 917
e: frankie.tierney@herrington-carmichael.com

Dil Vajaria

Dil Vajaria

Trainee Solicitor, Dispute Resolution

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