Developers need certainty when acquiring land that there is no risk of claims from third parties/squatters/trespassers to ownership of the land (adverse possession).
In a recent case the judge accepted part of the land was subject to such claims (a garage) but another part was not (the adjoining area where cars were parked and foliage maintained).
Remember the key requirements for a successful claim for adverse possession:
- Uninterrupted exclusive possession - easy to argue with an enclosed garage but harder for a parking area/foliage;
- 10 years continued exclusive possession for registered land (but 12 years if claimed period ends before 13 October 2013) and 12 years if unregistered;
- Such possession is not for a fee, licence or rent from the owner;
- Clear intention by Claimant to possess during period of possession.
The claimant tried to argue it had a valid claim because there was a "common character of locality" between the garage and the adjoining land but the judge dismissed it.
Although it failed it is a sobering reminder that you must ensure that a full due diligence is carried out on the site which should include on site inspection, ensuring there are comprehensive replies to enquiries on adverse possession and if necessary provisions in the acquisition contract. Going to court, even if you eventually win, can result in costly delays.