Adverse Possession of Land
by Emma Harwood - Solicitor
Our guide to understanding the law relating to adverse possession of land.
Acquiring land by “Adverse Possession” is the process by which a person who is not the legal owner of land can become its owner after having occupied it for a specified period of time.
Adverse Possession and the Land Registration Act 2002
The Land Registration Act 2002 came into force on 13 October 2003 and introduced a new legal scheme for the acquisition of registered land (title to land previously registered at the Land Registry) by adverse possession.
The Land Registration Act 2002 disapplies the previous law in relation to the adverse possession of registered land so that there are now two regimes:
- The regime applicable for registered land under the Land Registration Act 2002. This new scheme relates to registered land only.
- The previous regime, which only applies to unregistered land and registered land where the possession relied upon is for a period of at least twelve years ending before 13 October 2003.
The Right to Apply for Registration following Adverse Possession
Time: How long does a person need to possess the land?
The period of adverse possession and occupation of the registered land required is “ten years”, not the “twelve” year period which continues to apply to unregistered land and registered land where the possession relied upon is for a period of twelve years ending before the Land Registration Act 2002 came into force.
This means that a person wishing to claim adverse possession of registered land would need to continuously occupy the land for ten years, or for a period of twelve years if the land is unregistered or if the period of time of occupation is ended before 2003.
Establishing Adverse Possession
There are two elements a person needs to establish for a claim of adverse possession, regardless of whether the claim is in respect of registered or unregistered land. To claim title to land by adverse possession, the claimant needs to prove the following:
- Uninterrupted “factual” possession of the land by the claimant for the requisite period of time.
- “Intention” on the part of the claimant to possess the land during that period.
Factual Possession of the Land
As previously mentioned, the land must have been in the claimant’s factual possession for the requisite period (ten years or twelve years depending on the circumstances).
For factual possession, the claimant may acquire possession of the land by dispossessing the title owner of the land i.e. occupying land belonging to someone else (which will be the usual situation), or by taking possession of land that has been abandoned by the owner (which is less usual because abandonment of land is not easily established). The occupation of the land must be without the consent of the owner. The claimant at the time of the possession must not be legally entitled to occupy the land i.e. with the owner’s permission or under a legal interest such as a lease, licence or tenancy.
There must be a sufficient degree of exclusive physical control over the land. What is sufficient will depend on the circumstances and, in particular, the nature of the land and the manner in which land of that nature is commonly used. Broadly, the person in possession must have been dealing with the land as an occupying owner might have been expected to deal with it and no one else must have done so.
An example would be the occupation of a “field”. The claimant would need to maintain the land and regularly cultivate the land for example by mowing the grass, tending to flowers, and cutting trees. The claimant would need to regularly use the land perhaps by growing crops or grazing animals on it and treat the land like their own exclusively and as the registered title owner would have done.
It may be possible, in appropriate circumstances, to acquire title by adverse possession of an unregistered foreshore and river bed by reason of mooring.
There is no requirement that adverse possession should be apparent to anybody inspecting the land.
Intention to Possess the Land
The claimant must establish that they intended to possess the land during the period of possession i.e. the claimant must intend to possess the land and not be occupying it by mistake. Such a mistake could involve uncertainty over a boundary line, resulting in them thinking the land was theirs, for example by way of an extension of their garden encroaching on neighbouring land.
This must be an intention to possess in the claimant's own name, on their own behalf and to the exclusion of all others (including the owner with the legal title), so far as is reasonably practicable and so far as the processes of law will allow. A claimant could show they had possessed the land continuously to the exclusion of all others for example by fencing the land off or growing hedges around the land for their exclusive use.
An intention to possess to the exclusion of all others is not the same as an intention to own or acquire ownership.
Making the Adverse Possession Application
Once the above conditions are satisfied, the claimant will need to make an application to the Land Registry (www.landregistry.gov.uk). This application will need to be accompanied by a statutory declaration or a statement of truth (a sworn statement) outlining details of the claimant’s possession of the land for the requisite period of time and without the consent of the owner. A legal professional will be able to assist with this application.
The evidence must show that the applicant had been in adverse possession of the registered estate for a period which, if it were to continue from the date of the applicant's statutory declaration or statement of truth to the date of the application, would be not less than ten (or twelve) years ending on the date of the application. It is prudent to include any additional evidence that the applicant considers necessary to support their claim such as plans of the land and boundaries, photos of the land or supporting statutory declarations of friends or neighbours that confirm that the applicant has been using the land continuously and exclusively for the requisite period.
Once the application has been received by the Land Registry, they will usually send a surveyor to visit the land. The surveyor may take measurements of the land; this is merely to establish that the land applied for exists and to assist in plotting accurate boundaries to the land on the title plan.
Once the application is complete and the land is registered, the applicant will be granted “absolute” title to the land. Where the applicant is registered as the proprietor, they will generally take the land free of any registered charges. In some cases, where there is insufficient evidence, the applicant will only be granted a “possessory” title (this is a lesser quality title to the land.)
Where the previous registered proprietor had been registered with absolute title, the applicant will also be registered with an absolute title. Equally, where the previous proprietor had been registered with possessory title, the applicant will be registered with possessory title.
Once the applicant is registered as the new proprietor of the land, this is a proprietary right, and as such, it can be asserted against the previous registered proprietor. It will bind any third party to whom the previous registered proprietor makes a registered disposition of the land, provided that the applicant was in actual occupation of the land at the time. If so then the applicant’s unregistered interest would override the registered disposition.
The general rule is that a person will be entitled to apply to be registered as the proprietor of a registered estate in land if the person can prove to the Land Registry that they have been in adverse possession of the land for ten years ending on the date of the application.
A person may still apply for registration of land via adverse possession even if evicted after ten years of adverse possession. If a person who has already been in adverse possession for ten years is then evicted by the registered proprietor or by a person claiming under the registered proprietor, that person can still apply to be registered as the new proprietor. The person must satisfy the following:
- They must make the application for registration within six months after the eviction.
- They mst have been entitled to apply to be registered the day before the eviction.
- They must not have been evicted pursuant to a court order for possession.
Circumstances where no application can be made
Even if a person has been in adverse possession for the requisite ten year period, there are certain situations in which the person is not entitled to apply for registration as the new proprietor of the property:
- Where the person is a defendant in proceedings involving possession of the land.
- Where judgement for possession has been given against the person.
- Where the registered proprietor is an enemy or detained in enemy territory.
- Where the registered proprietor cannot make decisions or communicate decisions by reason of mental disability or physical impairment.
Protection against Adverse Possession
Registration by the landowner
The adverse possession scheme under the Land Registration Act 2002 offers more protection to registered landowners against claims for adverse possession than the previous scheme, which will continue to apply to unregistered land. Unregistered land owners may therefore consider applying for voluntary first registration and, indeed, the Land Registry has stated that one of its strategic objectives is to achieve the registration of all land in England and Wales by 2012.
Checking and maintaining accuracy of proprietor's name and address on register
Registered proprietors should check that their current names and addresses are complete and accurate, so that any notice of an application by a claimant for adverse possession will be properly received. This is important. A failure to respond to notification of an application may lead to the registration of the claimant as the new registered proprietor of the land.
Any landowner who is concerned that the boundaries of their land are not clear and who is concerned that there may be a potential encroachment and claim for adverse possession, may consider applying for the boundaries to be fixed to exclude the possibility of a person establishing the adverse possession conditions and being entitled to be registered as the proprietor.
If you found this guide useful then we hope you will enjoy the other property guides in our Law Library.
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