ADVERSE POSSESSION OF REGISTERED AND UNREGISTERED LAND EXPLAINED

A narrow strip beside a garden, an unused plot behind a property or a fenced-off area at the end of a driveway can gradually begin to feel like part of your home. You may have maintained it, secured it and used it for years while nobody else has shown any interest.

However, long-term use of someone else’s land does not automatically make you its legal owner.

Adverse possession is a legal process that may, in certain circumstances, allow someone to claim ownership of land owned by someone else without the true owner’s permission. Whether a claim can succeed depends on how the land has been occupied, for how long, and whether the land is registered.

This article explains the law in England and Wales. As every case turns on its own history and evidence, taking advice early can help avoid a poorly prepared application.

What is adverse possession?

Adverse possession concerns the difference between practical control of land and legal title to land. A person may be in actual possession of a piece of land even though another person remains its paper owner.

To establish adverse possession, the applicant must generally show factual possession, an intention to possess the land and possession without consent. These common law principles appear in leading adverse possession cases, including Powell v McFarlane and J A Pye (Oxford) Ltd v Graham.

The applicant does not necessarily need to prove an intention to become the owner. They must show an intention to possess: in practical terms, an intention to control the land to the exclusion of others, including the true owner, so far as reasonably possible.

The doctrine of adverse possession now operates alongside legislation. The route differs significantly depending on whether the title is governed by Schedule 6 of the Land Registration Act 2002 or the limitation rules applying when land is unregistered.

What are the requirements of adverse possession?

Adverse possession requires more than occasional use or maintenance. The legal requirements for adverse possession must be satisfied throughout the qualifying period.

Factual possession and exclusive control

Factual possession means exercising an appropriate degree of physical control. What is sufficient will depend on the nature and normal use of the land of that kind.

Fencing an area, locking a gate, controlling access or cultivating it may support a claim. Fencing can be strong evidence, but it is neither essential nor conclusive. The full picture must show exclusive possession and that the applicant has been dealing with the land as an occupying owner might.

Shared or occasional occupation of the land is less likely to be enough. Simply crossing it, cutting back weeds or parking there from time to time may not show possession of land owned by another person.

An intention to possess the land

The applicant’s conduct must show an intention to possess the land. Maintaining boundaries, holding the only key to a gate or excluding other users may help establish a practical right to possession.

Possession without permission

Possession is not adverse when it takes place under a tenancy, licence or another form of permission. A person generally cannot claim adverse possession while the property owner has authorised their occupation.

Where permission was once given, it may be necessary to establish when and how that arrangement ended. Until then, the occupation of the property is unlikely to be adverse to the owner of the property.

Continuous possession for a sufficient period

The applicant must demonstrate continuous possession for the necessary period. They need not be present every day, but there should be continuous and uninterrupted possession consistent with the expected use of the property.

If the applicant abandoned the land, lost control or allowed the owner to recover possession, the relevant period may stop. Periods of possession by predecessors can sometimes be relied upon, but the sequence must be evidenced clearly.

How long does adverse possession of land take?

The familiar references to “10 years” and “12 years adverse possession” describe two different adverse possession laws. Neither period should be treated as an automatic transfer of ownership.

10 years for registered land

An adverse possessor may normally make an application for adverse possession after at least ten years. This right to apply arises under Schedule 6 of the Land Registration Act 2002.

Reaching ten years does not automatically transfer ownership of the land. The proprietor of the land and certain other interested parties will usually be notified and given an opportunity to oppose the application.

Land for 12 years where it is unregistered

Where the title is not on the register, the normal period is 12 years under the Limitation Act 1980. Once the paper owner’s right to recover possession has been barred, their title to the land may be extinguished and the applicant may seek first registration. The title may then be recorded as having been acquired by adverse possession.

There are exceptions, including different periods for certain Crown, church or trust land. A title missing from the register is not ownerless; it may still be land belonging to a person whose ownership is evidenced by old deeds.

Historic claims

Special transitional rules may apply where a right in respect of registered land had already been acquired before 13 October 2003. These claims can involve the former Land Registration Act 1925 and are covered by Practice Guide 5.

Claiming adverse possession through HM Land Registry

Before applying, it is important to identify the land and check its registration status. A title search, review of deeds and suitable plan can reveal whether the issue is adverse possession of the land or a boundary disagreement.

Title plans usually show only the general position of boundaries. An area can therefore sometimes fall within a title even though the red edging appears to suggest otherwise. Where the applicant already has documentary title and the plan is simply inaccurate, an alteration or determined-boundary application may be more appropriate.

For a claim affecting a registered title, the applicant will generally apply to be registered using form ADV1. The form must be supported by a statement of truth or statutory declaration explaining the possession of the property and the facts relied upon. Form ST1 can provide a framework, and a clear plan will usually be needed where only part of a title is claimed.

The evidence should explain when the applicant took possession, the nature of the adverse occupation, how the area was controlled and whether that control was challenged or permitted. The registry considers each application on its own facts and will often arrange an inspection.

What happens after a notice of adverse possession?

If the initial evidence supports the application, HM Land Registry will normally serve a notice of adverse possession on the registered proprietor, relevant charge holders and certain other interested parties. Those receiving the main statutory notice are usually given 65 working days to respond.

The recipient may consent, object or serve a counter-notice. An unresolved dispute may ultimately be referred to the First-tier Tribunal.

Where a counter-notice is served, a first application will generally be rejected unless one of three statutory conditions applies:

1.      It would be unconscionable, because of an equity by estoppel, for the registered proprietor to dispossess the applicant, and the applicant ought to be registered.

2.      The applicant is otherwise entitled to be registered as proprietor, perhaps because a purchase was completed in substance but the title to the property was never transferred.

3.      The claim concerns adverse possession of land adjacent to the applicant’s own property, held for at least ten years under a reasonable but mistaken belief of ownership, where the exact boundary with this adjacent land has not been determined and the relevant estate was registered more than one year before the application.

The third condition is narrow. A fence remaining in the same place for many years does not, by itself, establish every part of the test.

If the first application is rejected but the applicant remains in adverse possession for a further two years, they may be able to apply again, subject to exceptions. During that period, the registered proprietor can take steps to recover possession or formalise the occupation through an agreement.

Claiming adverse possession where the title is not registered

An application for first registration is normally made using form FR1. A plan is commonly required, together with supporting evidence such as form ST1 or a statutory declaration and a schedule of the documents lodged.

Practice Guide 5 explains the procedure, but title by adverse possession does not always result in absolute title. The applicant may initially receive possessory title, so the application should provide a clear chronology of the occupation and boundaries.

How can you prove adverse possession?

A strong adverse possession claim is usually built from evidence gathered across the full qualifying period, rather than a single recent photograph or statement.

Useful evidence may include:

·        dated photographs of fences, gates, buildings or cultivation;

·        invoices for fencing, repairs and maintenance;

·        historic maps, plans and aerial images;

·        witness statements from neighbours or previous occupiers;

·        correspondence concerning the land or boundary;

·        records showing who held keys and controlled access; and

·        evidence explaining changes in occupation or successive possessors.

The adverse possessor’s statement should explain how they came to take possession, how the land was used, who had access and whether the true owner objected or gave permission.

Evidence must also be tested rather than simply collected. Paying to maintain land may show care, but not exclusive possession; a new fence may show control only from the date it was installed.

Why might an adverse possession claim fail?

Common difficulties include an insufficient period, permission, shared use, unexplained gaps and evidence that does not match the application plan.

A claim may also fail because the conduct shows only access or maintenance, because the paper owner has recovered the land, or because the area forms part of a publicly maintained highway. Some land and ownership arrangements are subject to special rules.

Adverse possession is not a licence to take the land because it looks neglected. Separate criminal law considerations can arise. In particular, squatting in a residential building is a criminal offence in England and Wales, so advice should be taken before entering or remaining in residential premises.

Could you have a valid adverse possession claim?

The ownership of that land may have been uncertain for years, but the application must be precise. Its registration status, occupation history, boundaries and evidence all need to be considered before a realistic view can be given.

At PCS Legal, our experienced property lawyers can assess whether the common law requirements and statutory rules are met, carry out Land Registry searches, and help prepare the appropriate application and supporting documents. We can also advise on connected issues involving fencing, encroachments, boundary areas and access rights.

Take the first step towards securing your position by learning more about our adverse possession service or requesting an estimate.