Adverse Possession of Registered Land

ADVERSE POSSESSION OF REGISTERED LAND

THE LAND REGISTRATION ACT 2002

The law of Adverse Possession has always been a contentious one. It offers the potential for a third-party non-proprietor to claim a legal right over someone else’s land, without the requirement of traditional purchase.

In years past, the media often circulated tales of woe from disillusioned landowners who saw their property ‘stolen’ by unscrupulous ‘squatters’.

However, the rhetoric has evolved and so too has the law.

The Land Registration Act 2002 came into force on 13 October 2003 and changed the legal landscape of Adverse Possession of registered land in the UK.

As time passes, fewer examples of Adverse Possession under the ‘old’ regime are seen. This shift is assisted by the increase in registered versus unregistered land.

This note will focus on the new regime, for registered land, post the Land Registration Act 2002. However, if you believe that you may have acquired rights in land prior to this date, or you suspect you have rights in unregistered land, do get in touch with our Dispute Resolution team for a discussion on your specific situation.

Establishing Adverse Possession in Registered land

It is necessary to prove the following in order for a claim in Adverse Possession to be successful:

1. Uninterrupted factual possession of the land. Under the new regime, the claimant must show uninterrupted factual possession for 10 years leading up to the date of their claim. They may dispossess the paper owner of the land or take possession of abandoned land. The following are important points of note:
   1. There is no requirement that the possession of the claimant should be apparent to anybody inspecting the land;
   2. The claimant must have the necessary capacity to exercise exclusive physical control over the land;
   3. There must be a sufficient degree of exclusive physical control over the land. What is required to prove exclusive physical control will vary depending on the specific situation and nature of the land in question. A broad rule of thumb is that the claimant should be dealing with the land as one might expect an owner in occupation would do; and
   4. The period of possession must be continuous and uninterrupted. However, importantly, the period can carry through more then one ‘squatter’. If X had possession for 2 years, then Y took over possession for a further 8, Y could make a claim for adverse possession. Often people are unaware of this potential to carry over a continuous period of possession from a predecessor. Evidence by way of a statement setting out the previous ‘squatter’s’ use of the land will be necessary in support of the current squatter’s claim. 

2. Intention of the claimant to possess the land during the period of possession.
   1. The claimant (squatter) must evidence that they intended to possess the land. It cannot be sufficient to ‘accidentally’ realise that an extended period of possession has occurred. Mere use of the land may give rise to an easement by prescription rather than establish an intention to possess the land.
   2. The intention must be to possess in the Claimants own name and, importantly, to the exclusion of all others as far as is practical and permitted in law. As shown here, there is an element of subjectivity in this point. What should be noted is that an intention to own is not considered the same as an intention to possess.

Note that possession must be without the owners consent

Legal process to assert Adverse Possession

If you have sought legal advice and believe your claim for adverse possession is strong, an application in the form of an ADV1 may be lodged. This should be accompanied by a Statutory Declaration or witness statement and evidence to support the claim of Adverse Possession.

If the Land Registry Registrar is satisfied that the claimant has evidence of their right, they will notify the registered land owner and other relevant parties to the application.

Depending on the responses to these notices, the passage of the application may take several forms. Ultimately, if successful, the claimant is able to apply to be registered proprietor of the land at Land Registry; thereby achieving a legal right in the land.

The first stage will be for us to undertake an assessment of the history and evidence available to provide you with advice prior to deciding whether to make an application.  Adverse Possession is a niche area of law and Rix and Kay prides itself on being able to provide clear, expert advice in this area of law.

If you feel you have a potential claim of Adverse Possession or if you are concerned with a third party seeking to register an interest in your land, do not hesitate to contact our team on the below details:

Contact us

If you need support when resolving a dispute, contact Katie McClean with our Dispute Resolution team, via e. KatieMcClean@rixandkay.co.uk or t. 01273 766 929