Adverse possession is a process by which someone who is not the legal owner of land can become entitled to the land through a period of possession. Historically, adverse possession caused problems for land owners as they could lose significant portions of their landholdings by failing to spot and remove squatters within twelve years of their taking up residence. Today the rules relating to registered land give some legal owners a little more protection, but there is still plenty of scope for owners to lose land through adverse possession.
What kind of possession is needed?
1. Factual possession
The squatter must show that for the relevant period they have been “dealing with the land as an occupying owner might have been expected to deal with it”.
Because each case is decided on its own facts it is impossible to say with certainty that a particular activity constitutes factual possession. Physically separating off the land (i.e. by erecting a fence around previously open land), is usually (although not always) enough to prove possession. Other activities that could constitute factual possession include:
- exercising grazing rights;
- cultivating or levelling off the land;
- parking cars on the land; and
- charging rent for use of the land.
There is no requirement that the squatters be constantly present on the land, and it is not necessary that their occupation be obvious to the legal owner at all times.
2. An intention to possess
The squatter must demonstrate that they intended to possess the land and to exclude others from the land. There does not need to be an intention to dispossess the legal owner; it has been held that the necessary intent has been demonstrated even where the squatter believed that they were the legal owner’s tenants.
3. Lack of consent by the legal owner
In order to claim adverse possession the squatter must have occupied the land without the consent of the legal owner, whether explicit or implied.
How long must the land be held?
Since 2002 there have been two systems under which adverse possession can be registered.
The “old” system is governed by the Limitation Act 1980, and applies to all unregistered land, plus any applications relating to registered land that has been adversely possessed for at least twelve years as at 13 October 2003.
Under this system, once the land has been held for twelve years the squatter has the right to apply to the Land Registry for legal title to the land. The legal owner then has thirty days to raise an objection on the grounds that the squatter has not fulfilled one or more of the criteria for adverse possession listed above. Unless a successful objection is raised, the squatter will obtain legal title to the land.
Under the “new” system, for registered land that had not been held for twelve years as at 13 October 2003, the squatter can apply for title by adverse possession after ten years in occupation. The legal owner is given 65 days to object and request that the application be dealt with under Schedule 6 of the Land Registration Act 2002.
The registered owner’s counter-notice requires the squatter to show that either:
- It would be unconscionable for the registered owner to dispossess the squatter AND the squatter ought to be entitled to be registered; or
- The land in question is adjacent to land owned by the squatter, the boundary between the two has never been exactly determined, the squatter has for the past ten years reasonably believed that the land belongs to him, AND the registered owner’s land was registered more than a year before the application was made; or
- For some other reason, the squatter is entitled to be registered as the legal owner.
Unless the squatter can show that one of these grounds applies, his application will be rejected. The legal owner then has two years to take steps to remove the squatter or formalise his interest through agreement. If at the end of the two year period the squatter is still in possession and possession proceedings have not been issued against him, he will be entitled to be registered as the legal owner.
How can you avoid applications for adverse possession?
In most cases, adverse possession is an entirely avoidable problem. Simple precautions, such as undertaking regular reviews of landholdings (including physical inspections at different times of day), keeping records of tenancies and licences up to date and ensuring that any agreements relating to land are properly documented, should enable landowners to avoid losing their land to squatters.
However, if an adverse possession application is received, the key is to take appropriate legal advice, object and/or issue the relevant counter-notices promptly, and where appropriate take steps to remedy the situation as soon as the squatter’s first application is rejected.