Adverse Possession of Land

What is Adverse Possession?


Adverse Possession means someone occupying land belonging to someone else, without permission. 

If someone does this continuously for a number of years (normally 10 or 12 years) then, in certain circumstances, the land may become theirs. 

At first sight it seems strange that the law should allow people to obtain title to land just by occupying it for a long time but the reason for this legal rule is to protect innocent third parties by ensuring certainty about legal title to land.

If you buy land you need to be sure that the person you are buying from does actually have title to the land. Nobody can sell what they do not own. 

If a buyer pays money to a seller in return for the seller executing a document known as a “conveyance” the buyer then obtains a good legal title to the land but only if the seller themselves had good title. If it turns out that the seller did not have legal title to the land then the buyer will not have obtained any legal title, and the true owner, whoever that is, will still own the land.

Of course the disappointed buyer who discovers that they do not own the land can bring a claim against the seller for compensation but the seller may have spent the money and in any event if you buy land you want to be sure that you own the land – you don’t want to be at risk of losing it even if you will be compensated. 

So being sure that the seller does actually have a good title to the land is very important. That is why when you buy (unregistered) land your conveyancer will take care to ensure that the person selling the land does actually own it.

How can you tell that someone owns (unregistered) land? 

Generally by asking the seller to show you the conveyance which they have from the time when they bought the land. But how can you tell that the person they bought the land from actually owned it, and the person before them? 

Nobody can trace their ownership of land by documentary evidence back to the first grant of land by William the Conqueror in 1066. 

This is where the 12 year rule comes in. 

Providing you can trace back ownership and prove that previous owners were in possession for at least 12 years then you know the person selling to you had good legal title because even if some previous seller did not actually own the land, the 12 years possession ensures that good title has been obtained by adverse possession. So the buyer knows that when they buy that they will have good legal title.

So although the idea of someone obtaining title by adverse possession for 12 years seems unjust, it is a necessary legal rule in order to ensure, for the benefit of innocent third parties, that there is certainty about title to land. 

The potential injustice of squatters obtaining ownership by being in possession for 12 years without permission is tempered by the consideration that obliging owners of land who are not themselves in occupation, to check on their land at least once every 12 years to ensure no unauthorised person is in occupation, is not onerous.

As well as helping to ensure good legal title for the benefit of third party buyers, the law of adverse possession helps to ensure that unused land does not become a nuisance. If land in a farming area is unused it will collect weeds and/or become a base for pests both of which may interfere with the farming of neighbouring land. Unused land in a built up area may become a nuisance if, for example, structures on it become unsafe (either through natural deterioration or because of vandalism) or if rubbish is deposited on it. Neighbours may try to contact the owner of the unused land but what if the owner cannot be found? 

The law of adverse possession is a partial answer to this problem. If the owner of unused farmland, for example, cannot be found, a neighbouring landowner may start to use the land – the law of adverse possession encourages them to do so because they might possibly be able to obtain good title and even if the true owner turns up before the adverse possessor has been in possession long enough to gain legal title the temporary possession will at least have mitigated the nuisance problem meanwhile.   

The circumstances in which adverse possession is allowed to occur, and the motives underlying it, in practice vary. At one end of the spectrum there are opportunists who are not neighbours but who see unused land and decide to occupy it with the deliberate intention of staying, if they can, for 12 years, in order to become owners of the land.

At the other end of the spectrum is the situation where there is a dividing wall between the gardens of two properties, A and B. Both A and B assume that they own the land up to the wall and use their land as a garden right up to the wall. If it later transpires that the wall was, many years ago, erected in the wrong place, so that part of A’s land (as shown in their title deeds) was actually on B’s side of the wall, then A will have lost that part of their land, and B will have obtained ownership of it by 12 years adverse possession. In this case B (unlike the opportunist described above) had no intention of acquiring land they did not own – they thought all along that they owned it. They were wrong about that but they ended up owning it in the end by virtue of adverse possession.

Between these two extremes there are cases where someone starts using someone else’s land, knowing that it is someone else’s land but intending just to use it as their own for a long as they can, without necessarily having the motive of eventually getting title. For example someone with a freehold allotment, seeing the neighbouring allotment unused and gathering weeds, may decide to cultivate it for as long as they can, but if they end up doing so for 12 years, they may become the legal owner.

Because the rationale for the 12 year rule is to provide certainty of title for the benefit of innocent third parties, the law generally makes no distinction between different motives for possessing (unregistered) land. In order for someone to gain title by adverse possession they must possess in such a way as to show that they intend to possess without permission but their beliefs about, and intentions as to, ownership as such are generally irrelevant. Also someone in adverse possession can rely on adverse possession by their predecessors so someone who acquires land from someone who has been in adverse possession for 7 years only has to be in possession for a further 5 years in order to claim title.    

In order to try to ensure even greater certainty about title to land there is a Land Registry and whenever land is bought and sold it must now be registered at the Land Registry. There is, however, still a lot of land which was last sold before registration became compulsory and which is as yet unregistered.

Where land is registered there is greater protection from title being lost to someone else by adverse possession. If someone who does not own any adjoining land, occupies someone else’s registered land, then after 10 years adverse possession they can apply to the Land Registry to be registered as the new owner. However the current registered owner will be informed about the application and can object: the registered owner then has two years to start legal proceedings to have the squatter ejected, and only if they fail to take action, will the squatter, in two years time, be entitled to be registered as the owner. So there is significant protection for the registered owner in this situation as long as the registered owner keeps their registered contact details up to date. However special rules apply if the person in adverse possession (and/or their predecessors) has been in possession for a very long time (since before 1991) – in that case the registered owner may have less protection.

If the parties own adjoining land then, even for registered land there is reduced protection for the registered owner against adverse possession. In the example given above of two neighbours A and B (who, unknown to them, have a dividing wall in the wrong place) occurred in the case of registered land, then B could apply to be registered as the owner after at least 10 years possession providing they reasonably believed that the land belonged to them. They probably will not believe (that the land belongs to them) shortly before they make the application because usually it is the discovery of the anomaly that prompts the application, but if they did believe for at least 10 years before the discovery then they can promptly apply. In this case A has no automatic right to (unless, for example, A can show that B was not in possession for the full period or that B’s belief was not genuine or was unreasonable).

Generally the person in adverse possession has to apply to the Land Registry when they are still in possession of the land but if they are forcibly evicted (without a court order) by the registered owner they have 6 months from the date of eviction to make an application. If they wait for more than 6 months before making a Land Registry Application they will usually be too late unless they or their predecessors have been in possession for some continuous period of at least 12 years prior to 2003 when special rules may apply.

What are the requirements?

1. Factual possession

The squatter’s possession of the land must be uninterrupted. The squatter must be able to show that they have had sufficient exclusive physical control of the property or land. What is sufficient depends on the circumstances; essentially, the squatter must have been dealing with the property or the land as an occupying owner might have been expected to deal with it. Furthermore, nobody else must have done so.

The squatter must prove factual possession of the property or land. This must be possession of the whole of the property or land, not just of part of it. Interestingly, the adverse possession does not need to be apparent to anybody inspecting the land, as ruled in Wretham v Ross and Shaw [2005].

In order to prove factual possession, a squatter needs to prove possession for a specific length of time; this is known as the requisite period.

The relevant requisite periods are as follows:

  • If the land is registered and the period of occupation ends after 13 October 2003: 10 years 
  • If the land is registered and the period of occupation ends before 13 October 2003: 12 years 
  • If the land is unregistered: 12 years

Possession of the property or land must be continuous throughout this period.

2. Intention to possess

As the squatter’s possession is without the owner’s consent, they must be able to prove that they intended to occupy the land as their own during the period of possession. This must be in their own name, on their own behalf and to the exclusion of all others (including the actual, or ‘paper’, owner).

Possession cannot be adverse if the true paper owner has consented to the occupation; this would amount to an express right to occupy, such as a tenancy or a licence.

What is the process?

HM Land Registry application

If a squatter has satisfied the above criteria, they can apply to HM Land Registry to have their name registered on the title. This would give the squatter a legal right to the property or land which they have adversely possessed. An application fee is payable to the Land Registry with any adverse possession claim. This ranges from £70 to £130 depending on whether or not the Land is registered.

The appropriate form to use is an ADV1, which should be submitted with either a statutory declaration or a statement of truth.

Upon application, HM Land Registry will notify the registered proprietor of the property or land (if there is one) and any other persons interested in the land, such as the local authority, and these persons will have an opportunity to oppose the application by serving a counter-notice. If the application is not opposed, the squatter will be registered as the proprietor on the title.

If the application is opposed, HM Land Registry will reject it unless either:

  • It would be unconscionable because of the registered proprietor’s past conduct (this is known as equity by estoppel); 
  • The squatter is, for some other reason, entitled to be registered as a proprietor; or 
  • The squatter has been in adverse possession of land adjacent to their own under the mistaken but reasonable belief that they are the owner of it.

If the application is rejected, but the squatter remains in adverse possession for a further two years, they will be able to reapply for possession. This time they will be registered whether or not anyone opposes the application.

Disclaimer- The above explanation of the law is only an overview, please do not rely on the above but Contact me for advice   

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