How To Make A Claim For Adverse Possession Or Defend Such A Claim

Introduction

Adverse possession, colloquially known as ‘squatter’s rights’, is a legal claim that can be made under the Land Registration Act 2002 that applies when a person who does not have legal title to a piece of property (usually land) attempts to claim legal ownership based upon a history of possession or occupation without secrecy, force, or the permission of its legal owner.

English law recognises that if a person is in possession of land for a long enough period without the legal owner taking action to remove them, then the possessor should be able to become the legal owner.

The concept of adverse possession has deep roots in English law, dating back to the medieval period. It was originally designed to ensure that land was not left idle and abandoned, rewarding those who used the land productively in the event the true owner vanished. Over time the law has evolved, and while the principle remains the same, the process and requirements have become more complex.

What is the required period of possession to make a claim for adverse possession of land?

The first requirement for a claim of adverse possession is that the claimant must have been in possession of the land for a certain period. For unregistered land, this period is 12 years. This is based on the Limitation Act 1980, which prevents the legal owner from bringing an action to recover the land after this time has passed.

However, for registered land, the period is shorter – the claimant must have been in possession of the land for only 10 years. This reflects the fact that registered land is subject to a more robust system of title registration, which should alert the legal owner to any adverse possession at an earlier stage.

What sort of possession of the land do I need to show?

In addition to the period of possession, the claimant must also show that they had factual possession of the land and an intention to possess it. Factual possession means exercising control over the land, such as enclosing it or using it for a specific purpose. These are just examples and what constitutes factual possession will depend on the facts of each case.

Intention to possess means the intention to exclude the world at large, including the legal owner, as far as is reasonably practicable and so far as the law will allow.

How is an application made for adverse possession?

Once the requisite period of possession has been met, the next step is to make a formal application to the Land Registry. For land which is registered, this is done using Form ADV1. The application must be accompanied by a plan identifying the land and a statutory declaration evidencing how the criteria for adverse possession have been met.

Will the registered proprietor of the land be notified of the application and can they oppose it?

Upon receipt of the application, the Land Registry will often arrange for a surveyor to inspect the land and they will bear in mind any case law. If they believe the application is more likely than not to succeed, they will notify the registered proprietor and any other persons with an interest in the land. These parties are then given the opportunity to consent, oppose the application, or serve a counter notice.

If the application is not opposed, the Land Registry will register the applicant as the new proprietor of the land. However, if an interested party does object to the application, the applicant must be able to demonstrate that at least one of three conditions exist before they can proceed with their adverse possession claim, namely:

• Proprietary estoppel;

To succeed in this remedy, the applicant is required to show that the existing landowner led the applicant to think that they were the actual owner of the land, and consequently, the applicant acted to their detriment. It would be unconscionable for the proprietor to deny the squatter the rights which they believed they had.

• Some other reason why the applicant is entitled to the land; or

Some other reason may include, for example, rights to the land under a trust, will or intestacy.

• A mistaken belief as to boundary

The concept of a mistaken belief about boundaries pertains to an applicant who, owning the neighbouring land, reasonably assumed that the land in question was theirs.

If the applicant fails to meet at least one of these three conditions and their application is refused by the Land Registry, they have the option to reapply after two years from the date of rejection, as long as they continue to possess the land. Therefore, it’s crucial for the actual registered owner to promptly evict the “squatter” from the land if such an application is denied.

The process for claiming adverse possession of registered land under the Land Registration Act (LRA) 2002 differs from that of unregistered land.

Parliament has made it more challenging to make such adverse possession claims concerning registered land, driven by the need for certainty in registered titles and the public outcry triggered by the case of J A Pye (Oxford) Ltd v Graham (2002) which was heard by the House of Lords. In this case, valuable land was lost to “squatters” due to the owners’ inability to supervise their land effectively.

This case in particular highlights the necessity of responsible land owners to regularly inspect their land and ensure squatters have not moved in. Additionally, land owners should ensure that their records at the Land Registry are accurate (i.e., their names and addresses are recorded appropriately).

Conclusion

 In conclusion, adverse possession is a complex area of English law enabling a person without legal title to land to claim legal ownership based on a history of possession. The process involves meeting specific requirements, including a certain period of possession and demonstrating factual possession and intention to possess. The Land Registration Act 2002 has made it more challenging to claim adverse possession of registered land, reflecting the need for certainty with regards to registered titles.

The law of adverse possession underscores the importance of responsible land ownership, including regular inspection of land and maintaining accurate records at the Land Registry. It serves as a reminder that landowners must be vigilant in protecting their property rights. Failure to do so could result in them losing ownership of valuable land to ‘squatters’.

How we can help

You may be a land owner who is concerned about the accuracy of the Land Registry’s records concerning your property, or you may be facing a claim for adverse possession being made against your land. Alternatively, you may be seeking to make an application for adverse possession against someone else’s land. In any of these circumstances, we are more than happy to advise and assist you, guiding you to a satisfactory solution. As always, we will ensure that your matter is dealt with efficiently, diligently and effectively.

This article is intended for general information only, applies to the law at the time of publication, is not specific to the facts of your case and is not intended to be a replacement for legal advice. It is recommended that specific professional advice is sought before relying on any of the information given. © Jonathan Lea Limited.