Adverse possession

A successful application for title by adverse possession will result in the squatter acquiring possessory title to land. In order to establish adverse possession, a squatter must prove:

  • factual possession
  • an intention to possess
  • possession for the required period (which varies depending on whether the land the squatter seeks to acquire is registered or unregistered)

See Practice Notes:

Rectification

The Land Registration Act 2002 (LRA 2002) makes provision for the alteration of the register on a number of grounds, including rectification. 'Rectification' means an alteration which involves the correction of a mistake and prejudicially affects the title of a registered proprietor.

Title may be rectified either by court order, or by Chief Land Registrar without a court order. It is an abuse of process to seek rectification by court order if the Land Registrar has already refused to rectify the register in respect of the same issue.

See Practice Note: The title register—alteration, rectification and indemnity.

If the proprietor is in possession, then there is a presumption against rectification, at least without their consent, but it is rebuttable if:

  • they have, by fraud or lack of proper care, caused or substantially contributed to the mistake, or
  • it would be unjust for any other reason for the alteration not to be made

Otherwise, there is a presumption in favour of rectification unless there are exceptional circumstances which justify the court not ordering rectification.

Claims by a former paper title owner for rectification

Where a squatter has successfully applied to be registered as proprietor, the former paper owner may apply to rectify the register to replace the squatter as the registered proprietor, on the basis the registration of the squatter was a mistake.

Pursuant to section 15(1) of the Limitation Act 1980 (LA 1980), no action could be brought to recover land more than 12 years after the right of action accrued. Pursuant to LA 1980, Sch 1 Pt I, para 1, time starts to run from the date that the paper owner has been dispossessed provided that some other person is in possession.

References: Rashid v Nasrullah [2018] EWCA Civ 2685

In Rashid v Nasrullah, a fraudster had transferred the property by forgery and been registered as proprietor. The fraudster transferred title to his son, who was involved in the fraud and who entered into occupation. Over 20 years later, the original registered owner sought to rectify the register. The Court of Appeal held that the fraudster could use adverse possession against the paper title owner.

References: Parshall v Hackney [2013] EWCA Civ 240J A Pye (Oxford) Limited v Graham [2002] UKHL 30

The Court of Appeal held that a decision in Parshall v Hackney, which held that someone who is registered as proprietor cannot be in adverse possession, was irreconcilable with an earlier decision in J A Pye (Oxford) Limited v Graham. In Pye, the House of Lords held that in order to be dispossessed, a squatter must be in possession without the consent of the owner. Alternatively, the Court of Appeal held that Parshall did not apply to the facts of Rashid. Therefore, if a person is registered as the owner of a property as a result of a mistake or fraud, time starts to run so that the true owner could not take proceedings to remove them.

As a result of LRA 2002, it is more difficult for a squatter to claim adverse possession, but this case remains relevant as a registered proprietor is capable of being in adverse possession.

References: Baxter v Mannion [2011] EWCA Civ 120

However, in Baxter v Mannion, it was confirmed that where a squatter had become registered on the basis of adverse possession, but had not actually been in adverse possession for the requisite period and therefore had not been in a position to make an application, this was a ‘mistake’ which could be rectified.

It is extremely important that the owners of registered title keep their addresses up to date at HM Land Registry to ensure that any applications for adverse possession or changes to the title register come to their attention. If an application for adverse possession is made, it is important for the owner of the paper title to file a counter-notice objecting to protect its position.

This content was first published on the Lexis Nexis Ask Forum on 28 April 2021